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Old May 23, 2002, 03:39 PM   #1
dZ
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the VOLOKH timeline of gunrights

WHO POSSESSES THE RIGHT TO BEAR ARMS? IN ONE VIEW, IT'S THE INDIVIDUAL, NOT THE STATE

HISTORICAL INTERPRETATION

The Bush Justice Department's May 6 decision to support an individual's right to own guns independent of a militia is a reversal of previous administrations' positions. But the author argues that there is ample evidence to show that the individual right to own guns was well-accepted in the 1700s and 1800s. He lays out his evidence in the chronology below, and also shows how opinions shifted in the 1900s, when the first major federal gun-control laws were passed.

1765: Sir William Blackstone, a powerful influence on the Framers' thinking, publishes his famous ``Commentaries on the Laws of England.'' He describes the British right to bear arms, a predecessor to the Second Amendment, as one of ``the rights of the subject'' -- in other words, an individual right.

1776: Pennsylvania enacts the first state bill of rights, which protects the right to bear arms gun-ownership right from being abridged by the state. This provision and similar ones in other early state constitutions are evidence that the right to own guns was aimed at constraining state governments rather than empowering them to form militias.

1788: New York, North Carolina and Virginia demand that Congress secure the right to bear arms, and they define ``militia'' as the citizenry at large. Rhode Island makes a similar demand in 1790.

1791: The U.S. Bill of Rights is enacted, including the Second Amendment: ``A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'' The phrase ``the right of the people'' is also used in the First and Fourth amendments, which secure individual rights to petition the government and to be free of unreasonable searches and seizures.

1792: Passage of the federal Militia Act, which defines ``militia'' as all able-bodied white male citizens ages 18 to 45 -- not as a small National Guard-like group. Constitutional amendments passed after the Civil War eliminate the racial restriction.

1803: St. George Tucker, the first prominent American legal commentator, publishes his edition of Blackstone's Commentaries, applying them to U.S. constitutional law. He says the Second Amendment prevents the government from disarming the citizenry.

1833: U.S. Supreme Court Justice Joseph Story, the leading American constitutional commentator of the early 1800s, in his ``Commentaries on the Constitution of the United States,'' describes the Second Amendment right to bear arms as belonging to ``the citizens,'' and echoes Tucker's view.

1866: Congress enacts the Freedmen's Bureau Act. Part of it aims to protect the ``constitutional right to bear arms'' for black people, alongside their rights to ``personal liberty'' and to owning property.

1880: Michigan Supreme Court Justice Thomas Cooley, the leading American constitutional scholar of the 19th century, stresses in his ``General Principles of Constitutional Law'' that the right to own guns belongs to all the people, not just a small subgroup.

1934: The National Firearms Act -- the first major federal gun-control law -- is enacted. It is mostly aimed at weapons associated with organized crime, such as machine guns and sawed-off shotguns.

1939: The U.S. Supreme Court, in United States vs. Miller, says the Second Amendment protects only those arms that have ``some reasonable relationship to the preservation or efficiency of a well-regulated militia.'' But the court also stresses that ``militia'' means ``all males physically capable of acting in concert for the common defense.'' The court does not say that the right belongs to the states or the National Guard. It is the court's only modern Second Amendment decision. (From 1820 to 1998, the court has referred to the Second Amendment 28 times, usually tangentially. Twenty-two of the 28 opinions quote only the right-to-bear-arms clause, without mentioning the militia language.)

1942: Two lower federal court decisions treat the Second Amendment as securing a states' right, beginning a trend that continues to this day.

1956: The current Militia Act is passed, defining ``militia'' as all male citizens age 17 to 45. (Given recent constitutional decisions, today this probably includes women, too.)

1960: Sens. John F. Kennedy and Hubert Humphrey express support for the ``right of each citizen'' to bear arms. Their views illustrate that even as lower federal courts adopted a states-right view of the Second Amendment, many politicians and average citizens continued to view the right as an individual one.

1968: The Gun Control Act of 1968 is enacted. It requires professional gun dealers to get licenses, bans felons from possessing guns and sets up a variety of other gun controls. This marks the start of a 30-year period in which Congress enacts a string of gun-control laws.

1986: The bipartisan Firearms Owners' Protection Act is enacted. It specifically asserts that the right to bear arms is an individual right.

2000: Liberal legal scholar Laurence Tribe of Harvard Law School concludes, in his widely respected Constitutional Law treatise, that the Second Amendment secures a individual right to own guns. His position is in line with many other recent legal writers, conservative and liberal alike.

2001: In United States vs. Emerson, the 5th U.S. Circuit Court of Appeals rules that ``the Second Amendment does protect individual rights,'' but allows ``limited, narrowly tailored specific exceptions or restrictions.'' This is the first time a federal court of appeals adopts the individual-rights view. Emerson was accused of possessing a firearm while under a domestic restraining order.

2002: The Department of Justice adopts the individual-rights view in two filings to the Supreme Court, one on the Emerson case and another on a case involving a ban on unlicensed machine gun possession.

This timeline is by Eugene Volokh. For the documents listed in this timeline, go to http://volokh.blogspot.com/ and click on ``Sources on the Second Amendment.'


http://www.bayarea.com/mld/mercuryne...al/3287081.htm
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Old May 23, 2002, 03:43 PM   #2
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Posted on Fri, May. 17, 2002
GUN CONTROL
DECIDING WHO OWNS `RIGHT TO BEAR ARMS'
By Eugene Volokh


Do you and I have the right to bear arms? The Bush administration's Justice Department recently answered with an emphatic ``Yes.''

As gun-control advocates cried foul and gun-rights supporters cheered, the government filed Supreme Court briefs May 6 in two cases, officially weighing in on the debate about the Second Amendment to the federal Constitution. The Justice Department rejected the executive branch's longtime position that the right to own guns is a collective right given to state militias, claiming instead that the right belongs to individual gun owners.

The ``current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service'' to ``possess and bear their own firearms,'' the Justice Department said.

The briefs acknowledged that the government was reversing several decades of its own constitutional policy, as well as challenging trends in the lower courts since the 1930s.

This policy, though a break with the recent past, fits into a long historical tradition. Americans from the Founding Fathers to the early 1900s took for granted that the right to bear arms is a right of individuals -- not of the states or the National Guard.

This view of the Second Amendment as securing an individual right can be seen in the works of leading early constitutional commentators, such as Supreme Court Justice Joseph Story (who was educated in the law in the decade after the Bill of Rights was enacted), St. George Tucker and Thomas Cooley. It is supported by similar provisions in states' bills of rights, and in state legislatures' calls for a federal Bill of Rights.

The individual rights position was the nearly unanimous view of courts and commentators throughout the 1800s, and was endorsed by Congress in the Freedmen's Bureau Act of 1866.

It was only in the 1930s that elite legal opinion began to shift, as lower federal courts started to embrace the states' rights view. Lower court decisions in the 1970s and 1980s reinforced this interpretation. The Supreme Court has never definitively resolved the question, making the Justice Department's switch particularly significant.

Though the Bush administration's position supports the individual right to own a gun, the government briefs stress that this right is nevertheless limited, like freedom of speech and other individual rights. Just as libel and child pornography are not protected by the First Amendment, neither is ownership of guns by violent felons protected by the Second Amendment. Many current gun-control laws would be upheld even under the government's new position.

But if the Bush administration's Second Amendment theory becomes law, some changes are likely. The Washington, D.C., handgun ban, for example, would probably be struck down as too broad. Similar bans in Chicago and other cities also would be vulnerable, provided that the Supreme Court follows its past practice and applies the restrictions of the Bill of Rights not only to the federal government, but also to the states.

EUGENE VOLOKH is a professor at the UCLA School of Law. He specializes in constitutional law and wrote this article for Perspective.
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Old May 23, 2002, 03:54 PM   #3
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Aaaaah. I've been looking for something like this!! Thanks

I think that, if I take this and include political occurences (assassinations, school shootings, etc), it will help me gain a better perspective on things.

Thanks again
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Old May 23, 2002, 11:41 PM   #4
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Wyldone, following is my attempt to peice together the events that led to the passage of the above gun-control laws.

NFA '34 was the direct result of the passage of the Volstead Act (prohibition), and the gangland violence that it gave rise to. Probably the most well known example of this is the 1929 St. Valentine's Day Massacre in which 7 men were executed with Thompson Submachineguns (Tommy guns, like in the old movies.)
Also, the acts of other criminals such as Bonnie and Clyde gave rise to (supposedly) a public outcry.

Skip ahead to the 1960's.
On Nov. 22, 1963 John F. Kennedy was assinated. The weapon used was a bolt-action Carcano that Oswald purchased via mail order.
April 4, 1968, Martin Luther King, Jr. is assasinated, ostensibly by James Earl Ray, but according to the biography of Dr. King at The King Center
Quote:
On December 8, 1999, a jury of twelve citizens of Memphis, Shelby County, TN concluded in Coretta Scott King, Martin Luther King, III, Bernice King, Dexter Scott King and Yolanda King Vs. Loyd Jowers and Other Unknown Conspirators that Loyd Jowers and governmental agencies including the City of Memphis, the State of Tennessee, and the federal government were party to the conspiracy to assassinate Dr. Martin Luther King, Jr.
I didn't know that.

June 5, 1968 Robert F. Kennedy is assasinated by Sirhan Sirhan shortly after winning the California Democratic Primary.
IIRC, Sirhan used a .22 revolver.

Taking those 3 murders into account, you can trace the lineage of the Gun Control Act of 1968. A big part of this was a ban on mail-order guns, and you had to fill out paperwork in order to purchase ammo. You could not cross state lines with a firearm as well. (My knowledge on GCA '68 is a little muzzy here, another TFL'er might be able to fill in with more knowledge.)

In 1986 the Firearms Owner's Protection Act is passed by Reagan. It does away with the paperwork that had to be filled out for ammo purchases, and also makes it easier for people to travel from state to state with a gun. (This was included because the GCA '68 had more or less crippled hunting. What FOPA did was to say that if you're legal in State A, and Legal in State Y, then you are legal in transition.)
FOPA also had a rider attached that put a cap on the number of legally held fully-automatic weapons, which has resulted in artificially inflated prices.

Volokh seems to have left the
1994 Assault Weapons Ban off of his list. A big part of why this was passed was the shooting of school kids by
Patrick Purdy in 1989. Throw in a couple of other high-profile shootings, and a rising crime rate, and the '94 ban was the result.

Since that time, there really haven't been any high-profile assasinations of public figures, but suffice it to say that the school shootings at Columbine in CO, Jonesboro, AR; Springfield, OR; West Paducah, KY; and others have led to all sorts of assinine proposals, many of which have been tried before.

Ok, I threw this timeline together pretty quickly relying only on my memory, and a couple of web searches. I may have missed a few events, or gotten them wrong. By no means is it all encompassing. If I've missed something, I'd appreciate it if other people added to it.
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Old May 24, 2002, 07:59 AM   #5
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A really good book on this topic is;

"The Second Amendment Primer" by Les Adams from Palladium Press.

Quoting from the book-"A citizen's guidebook to the history, sources, and authorities from the constitutional guarantee of the right to keep and bear arms."

This book explains it all starting from Greece and explains the path up to our Constitution. Has lots and lots and lots of information. Scholar comments and footnotes galore. I think it can be purchased via the NRA. A friend picked up my copy from a used book store.

It is a very good read and will give the reader a lot of ammo for defending our RKBA.

I highly recomend everyone to read this book.
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Old June 12, 2002, 02:52 PM   #6
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More additions to timeline

If I recall correctly, FFLs were first required for firearm dealers by a federal law passed in 1938, the original license fee being $1.00, not by GCA 68.

Moreover, the NFA of 1934 was enacted predominantly as a tax law, not a gun control law. A similar 1950 federal law taxing and hence registering "gamblers" (organizers & operators of 'games of chance') was tossed out by the Supreme Court on 5th Amendment grounds (US vs. Grosso) in 1968.
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Old June 12, 2002, 03:18 PM   #7
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Wyldone,
As I believe you were not present during the troubled times in 1968, let me recommend that you consider that: America was waging a war in SE Asia that was becoming more and more unpopular with the left; drug use was soaring, along with some pretty liberal ideas like free love, a move away from personal responsibility, etc. The left was on a roll. That's when things really began an accelerated downward slide re: gun ownership/possession/use. Only recently has the moderate/conservative voice been rising against the loss of freedoms. Hope this adds some perspective.
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Old June 12, 2002, 03:28 PM   #8
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Quote:
NFA '34 was the direct result of the passage of the Volstead Act (prohibition), and the gangland violence that it gave rise to. Probably the most well known example of this is the 1929 St. Valentine's Day Massacre in which 7 men were executed with Thompson Submachineguns (Tommy guns, like in the old movies.)
Small correction, I think that was 1933 -- the same year Prohibition ended.

In your fast forward to the 60's, you forgot drug prohibition and the fact that it created the same kind of problem that alcohol Prohibition had created re guns. The modern bootleggers don't use Thompsons, they used Mac-10s, AKs, etc. Would we have such support for gun control laws if we didn't have the violence and other problems associated with drug prohibition? I seriously doubt it -- if for no other reason that the homicide rate would drop dramatically just as it dropped dramatically at the end of alcohol prohibition.

End the drug war and we will end much of the political clout of the anti-gun crowd.


Quote:
Also, the acts of other criminals such as Bonnie and Clyde gave rise to (supposedly) a public outcry.
Actually, that was after the NFA.
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Old June 12, 2002, 03:37 PM   #9
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Something missing in the timeline (& very conveniently "forgotten" by the opposition) is The 1982 Senate Report .

A brief (it's huge! ) skim for keywords such as "individual right," in The Right to Keep and Bear Arms to get a flavor of what some of our (former) supporters had to say at the time. My, how some things have changed - political winds, I guess.

Too, The Congressional Intent is a very brief read that is enlightening.

From the original intent of The Second, to most every piece of legislation since, intends that no law-abiding citizen should be infringed upon ..... so much for intent.
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Old June 12, 2002, 03:38 PM   #10
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Quote:
Moreover, the NFA of 1934 was enacted predominantly as a tax law, not a gun control law. A similar 1950 federal law taxing and hence registering "gamblers" (organizers & operators of 'games of chance') was tossed out by the Supreme Court on 5th Amendment grounds (US vs. Grosso) in 1968.
No, it was actually intended to be a prohibition law but the people who wrote the law agreed that the US Federal Government had no constitutional authority to prohibit anything. So, instead, they placed a tax on it and required a license. The taxes were so high as to make them prohibitive and good luck trying to get the license because you had to have the product in hand before you applied for the license -- meaning you had already violated the law by being in possession without the license. (Hence it eventually being tossed out on 5th Amendment grounds).

Where did they get this "prohibit through taxes" idea? They got it from the Harrison Narcotics Tax Act of 1914, that prohibited (excuse me, "taxed") the opiates and cocaine, where they first tried that idea. That was upheld by the Supreme Court so they used the same prohibitory scheme on guns. The Marihuana Tax Act of 1937 was based on the same scheme, and it was declared unconstitutional on 5th Amendment grounds in 1969 in the case of (Timothy) Leary v. US.

If you are interested, you can read about the story of how they did it by a professor of constitutional law in the short history of the marijuana laws at http://www.druglibrary.org/schaffer/History/whiteb1.htm It is humorous, except when you realize that it actually happened.
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