Rationalizing Away The Right Of The People To Keep And Bear Arms

By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety.
KOLBE VS. HOGAN:
PART SIX

Erasing U.S. Constitution Second Amendment Right to Keep Bear Arms
Rationalizing Away The Right Of The People To Keep And Bear Arms
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)-  Kolbe is not merely an example of a poorly decided case; it is illustrative of the way in which courts, antithetical to the second amendment right of the people to keep and bear arms, use legal argot to disguise their contempt for and, indeed, abhorrence of our sacred right and their disdain for the Heller court rulings.

To understand the Kolbe case*—to truly understand its diabolical import—it is incumbent to delve into the intricacies and nuances.

Nuances of the seminal 2008 U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008). It is difficult to appreciate the lengths to which some federal courts will go to undermine the right of the people to keep and bear arms as codified in the Second Amendment to the U.S. Constitution; and it is difficult to appreciate just how horrific the decision in Kolbe is—certainly to those who take seriously the right of the people to keep and bear armswithout considering the thought that went into the Heller decision, as penned by the late Justice Antonin Scalia, writing for the Majority of the high Court.

Heller is the most important Second Amendment case to come out of the U.S. Supreme Court since the 1939 case, U.S. vs. Miller, 307 U.S. 174; 59 S. Ct. 816; 83 L. Ed. 1206 (1939). The high Court in Heller has, for the first time in the Court’s history, enunciated and elucidated several critical precepts that constitute the impetus for the Framers' inclusion of the Amendment in the Bill of Rights. The import of the Heller case rulings and reasoning of the Court's Majority can be reasonably perceived as the purest, clearest recognition by the high Court, to date, of the Framers' expression of the inviolability of and sanctity of the individual, within the Nation State. This is seen in the individual's position of and status, in this Nation State, as the armed citizen. The armed citizen stands above the Federal Government. The armed citizen stands as the guarantor of and guardian of a Free Republic. The armed citizen stands as the resolute and absolute check against tyranny. These points frighten those that espouse a collectivist society, operated by powerful interests that lurk unseen in the interstices of Government and in the World at large. It is not the criminal element that is feared by these collectivists. It isn't the occasional lunatic that is feared by these collectivists. It isn't even Islamic terrorists that is feared by these collectivists. No! It is the armed citizen that these collectivists fear; and they use, for propaganda purposes, the criminal psychopath, the lunatic, and the rapacious Islamist terrorist as a rationale for disarming the average, rational law-abiding, American citizen–the one element that, alone, can prevent the collapse of a Free Republic and the shredding of the U.S. Constitution. For, it is the end of our Free Republic and the erasing of the U.S. Constitution and of our sacred Bill of Rights that is the endgame for these silent, secretive, seductive, seditious collectivists. The Second Amendment and the Heller case stand, like a massive, impenetrable,   concrete wall in their way.

The following ten precepts follow from the rulings of District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008):

Concealing Full Size Handguns Alien Gear 1911 Holster
The armed citizen stands above the Federal Government. The armed citizen stands as the guarantor of and guardian of a Free Republic. The armed citizen stands as the resolute and absolute check against tyranny.
  • First, the right of the people to keep and bear arms is a natural right, preexistent in the people.
  • Second, since the right of the people to keep and bear arms is a natural right, preexistent in the people, the right is not to be considered man-made; the right is not, then, a creature of Statute, created by government.
  • Third, since the right of the people to keep and bear arms is not a right created by government, the right cannot be lawfully taken away from the people by government.
  • Fourth, the Second Amendment exists merely as a codification of the right of the people to keep and bear arms. That means the right doesn’t flow from or spring into existence due to its presence in the U.S. Constitution as the Second Amendment. Rather, the Second Amendment exemplifies—is a literal token for—the intangible, indestructible right that preexists in the people.
  • Fifth, the right of the People to keep and bear arms is an individual right, unconnected to one’s service in a militia.
  • Sixth, the dependent clause, “a well-regulated militia being necessary to the security of a free State” does not function as a limitation on the right of the people to keep and bear arms. The words, “a well-regulated militia being necessary to the security of a free State,” functions merely as a rationale for the codification of the right in the Constitution. The prefatory, dependent clause is not the operative clause and must not be taken as such. For, it is not the militia that has the right to keep and bear arms and it is not one’s service in a militia that serves as a basis upon which the right, if any, to keep and bear arms, exists; for, once again, the right to keep and bear arms preexists in the people.
  • Seventh, the ‘people' refers to each individual American. The term, as utilized in the Second Amendment is not referring to ‘people' in a collective or group sense.
  • Eighth, to minimize the operative clause, “the right of the people to keep and bear arms,” in relation to the prefatory clause, “a well-regulated militia being necessary to the security of a free State—not only denigrates the right inherent in the people, but destroys any notion that the right of the people to keep and bear arms exists inherently, primordially, intrinsically, in the individual.
  • Ninth, the right of the people to keep and bear arms is not a social construct, but exists within the essence of man.
  • Tenth, the right of the people to keep and bear arms exists immutably, independently in the individual self, completely apart from all social, political, or legal systems. The Court’s Majority in Heller accepts these precepts. The dissenting Minority Justices did not, and do not, and to date—along with like-minded Federal Appellate and District Courts, and like-minded antigun groups and like-minded mainstream media publishers, editors, and journalists, and like-minded legislators at the local, State and federal levels—the distaste for the Heller rulings, among those who have no regard for the Second Amendment, remains strong, virulent.

Local and State governments that draft codes, regulations, and Statutes in denigration of the plain, explicit meaning of the Second Amendment, do so at their peril for they are operating in clear defiance of our Constitution; they are demonstrating ignorance of the Framers’ intentions; they are exhibiting disdain for the rulings of the U.S. Supreme Court in Heller; and, therewith, they do show an abject lack of concern for the rights and liberties of the American people.

Worse, yet, lower federal District Courts and higher federal Appellate Courts that dare to uphold rather than strike down unconstitutional laws that collide with the right codified in the Second Amendment show their disdain for legal precedent when they opine injudiciously and deprecatingly the inscrutability of Heller and try, ignominiously and duplicitously, to distinguish Heller from the case before them, thereby forsaking all sound judgment and jurisprudential consideration to obtain a ruling that meets with their personal feelings of what the law pertaining to fundamental rights ought to be, rather than what the law is.

The Heller case is notable for dispelling—decidedly, decisively completely—any lingering doubt that antigun groups and like-minded Courts, and the mainstream media might have that the Second Amendment bestows, upon Americans, a collective right to bear arms only—a right to bear arms connected with one’s service in a State militia and nothing more. Thus, local and State governments hell-bent on curbing the Second Amendment and Courts of competent jurisdiction that are called upon to give their imprimatur on Statutes and codes and regulations that are inconsistent with the Second Amendment and inconsistent with U.S. Supreme Court precedent are caught in a vise. So, how do they proceed?

These renegade State governments and their fellow travelers in the federal Court system operate as if the Heller rulings don’t exist.

The Governments continue to draft and to enact draconian gun laws, inconsistent with and detrimental to the meaning and purport of the Second Amendment, while lower federal courts and the higher federal Appellate Courts, working in lockstep with these renegade governments defy U.S. Supreme Court precedent, rather than render decisions in deference to it, albeit no doubt, concerned that their decisions will be overturned—as well they should—by the U.S. Supreme Court if the high Court accepts the case for hearing.

Donald Trump and Neil Gorsuch
Now that Justice Neil Gorsuch has taken his seat on the United States Supreme Court, Americans have a man who will give due regard to the rulings in Heller

Of course, the hope of those who oppose the Heller decision and who seek to chisel away at the imposing immutability of the right of the people to keep and bear arms has been dashed. Opponents of the Heller decision had expected, but failed, to place on the high Court, Judge Merrick Garland who had sat, and now, once again sits, on the U.S. Court of Appeals for the D.C. Circuit. Judge Garland is an intractable foe of the fundamental right of the people to keep and bear armsAmericans’ most sacred right. The reaction of those in the Government bureaucracy, and those in the Courts, and those in Congress, and those in the mainstream media that seek de facto repeal of the Second Amendment through the overturning of Heller, is palpable, visceral—more so now that a Judge, nominated by U.S. President Donald Trump, and confirmed by the United States Senate, and who respects U.S. Supreme Court precedent, sits on the high Court, Justice Neil Gorsuch.

Now that Justice Neil Gorsuch has taken his seat on the United States Supreme Court, Americans have a man who will give due regard to the rulings in Heller—rulings that Judge Merrick Garland, were he to sit on the high Court instead, would, with the other liberal wing Justices, most certainly, shred. There's no doubt about that. With Justice Neil Gorsuch on the high Court, however, the legacy of the late Justice Antonin Scalia, as ardent defender of Americans’ fundamental right to keep and bear arms as codified in the Second Amendment, should remain secure. But, no one individual can ever guarantee that our Bill of Rights will remain secure. Federal Court cases such as the Kolbe case illustrate that lower Federal District Courts and higher U.S. Circuit Courts of Appeal that disagree with the Heller Majority’s legal and logical reasoning, jurisprudential methodology and philosophy, and the Majority’s precedential holdings, will slither around the clear, precise, emphatic instructions of the Heller Court to uphold draconian gun laws that strike at the core, the essence, of the Second Amendment right–laws that, are, then, like Maryland's Firearm Safety Act, per se unconstitutional.

The dissenting justices disagreement with the majority’s rulings in Heller is not predicated on fine points of law but rests on profound philosophical differences concerning where the fountain of rights and liberties of man draw their strength, their very existence: Whether from man-made social constructs, as those dissenting justices believe, or from rights and liberties preexistent in man that therefore transcend all social, political, and legal constructs, as the majority of the Heller court believes.

The dissenting Justices disagreed strenuously, mightily with the Majority’s reasoning, conclusions, and decisions in Heller. This disagreement between the liberal wing of the high Court and the Court’s conservative wing bespeaks more than a mere difference in approach to legal decision-making. No! The disputation is more profound and sublime. Disputation extends to the essence of a Jurist’s being. Writing for the Majority, Justice Scalia refers several times to the right of the people to keep and bear arms as a “natural right.” Reference to the phrase, “natural right” is not to be dismissed as affectation. Justice Antonin Scalia would have none of that. Every word the late Justice had penned has clear, precise, and critical meaning.:

Justice Antonin Scalia
Justice Antonin Scalia

The right of the people to keep and bear arms, as a natural right, means that the right exists inherently in man. The right of the American people to keep and bear arms is not a creation of man. It is not a creature of Statute. It is not to be deigned merely a social construct as a thing devoid of clear, irrefutable, power. No! The right to keep and bear arms exists over and above the Constitution itself. The right of the people to keep and bear arms stems from the Divine. The Right needs no proof. It needs no clarification. It needs no justification.

The Bill of Rights as constituted in—as an imposing component of the United States Constitution   —acknowledges through the codification of the right of the people to keep and bear armsthe preeminence of the right that existed prior to the creation of the Country, as an independent, preeminent and Sovereign Nation. But the right of the people to keep and bear arms is not forsaken with the creation of the Nation State, nor is the right discounted or reduced in some sense through the creation of the Nation State. Rather, the Nation exalts the right, and, in so doing exalts the individual to be and remain individual.

The right of the people to keep and bear arms is not and cannot be limited or constrained. Any attempt to do so by government operates as a betrayal of the relationship of individual to State. For this Nation State has, itself, limited powers. The People do not. Thus, it is that the Federal Government, through which the Nation State operates, obtains its power and authority by grace of the People. The People created the Government of the United States and it is within the power and right and duty of the American people to dismantle that Government if it devolves to tyranny.

The Heller decision has, then, far-reaching implications, as the right of the people to keep and bear arms, preexistent in the people—and therefore existing in the people prior to the creation of the Constitution—reiterates the Framers’ intention that the Nation is the servant of the people, and not that the people are servants—merely subjects—of the State.

Thus, Justice Scalia takes strong exception to Justice Stevens’ remark, set forth in Justice Stevens’ dissenting opinion in District of Columbia vs. Heller, 554 U.S. at 678, 679; 128 S. Ct. at 2845, that the Majority’s opinion, somehow rests for support merely upon Second Amendment “drafting history.”  Justice Scalia makes short work of that, saying:

Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” District of Columbia vs. Heller, 554 U.S. at 603; 128 S. Ct. at 2804. Not surprisingly, none of the dissenting Justices—not one—accepts as axiomatic, as self-evident, that the right of the people to keep and bear arms is intrinsic to the very being of an American. Drafting history—however language of the Second Amendment is ultimately formulated, as Justice Scalia makes clear, does no more than to codify the right—the natural right of the people to keep and bear arms.

A codification of a preexistent right is not equivalent to and, by logical implication, it is not instrumental in creating the right. Justice Scalia makes plain that the Second Amendment merely codifies a preexisting right; that the Framers’ did not create the right and did not importunately, intend to create rights. There is nothing in any of the various gyrations that the written Amendment went through to so much as suggest that the right of the people to keep and bear arms is to be construed as a right the framers had created for the American people. Such an idea would have been ridiculous to them and the suggestion would probably have been abhorrent to them, as well.

The dissenting Justices, in Heller, either have no conception of the Framers’ belief in the notion of natural rights and liberties that exist in men or they don’t care, preferring instead to read our bill of rights in relation to the constitutions and belief systems of other countries as such constitutions exist at the present time—together with notions antithetical to the very concept of natural rights and liberties.

Justices Stevens and Breyer and the other Justices who dissented in the Heller case refuse to accept the Second Amendment as anything more or other than a creation of man. This is clear from their exposition. Thus, Justices Stevens and Breyer and the other dissenting Justices consider the right of the people to keep and bear arms as nothing more or other than a mere social construct. It isn’t remarkable, then, that the dissenting Justices would argue that the right of the people to keep and bear arms is tied merely to service in a militia; but, in so tying the right to the militia, the dissenting Justices do more than merely set forth a misguided interpretation of the Framers’ belief in the truth and sanctity of a natural right of the people to keep and bear arms, these Justices essentially eviscerate the right—a critical point that Justice Scalia, looking at the writings of a professor, judge, and Civil War commentator, Thomas Cooley, aptly propounds. See District of Columbia vs. Heller, 554 U.S. at 617; 128 S. Ct. at 2812.

AR15 Gun Ban No Guns
Tying the right of the people to keep and bear arms singularly to service in a militia, functions, logically, to destroy the right—is one that cannot be overemphasized.

The point made—that the dissenting Justices’ position, tying the right of the people to keep and bear arms singularly to service in a militia, functions, logically, to destroy the right—is one that cannot be overemphasized. For it is not a minor point. It is one critical to understanding the logical impasse that exists between the liberal wing of the high Court and the conservative wing. For, differences in viewpoint commence and proceed on a very basic level. The differences in viewpoint suffuse and percolate through the reasoning of each of the two wings of the high Court and manifest as an irrefutable and irreconcilable conflict among the Justices on a level transcending mere disagreement about the law. The import of the Second Amendment as the dissenting Justices view it and as the high Court’s Majority view it may be likened to a chasm that cannot be bridged. The differences are deep-seated, intractable, grounded in unshakeable convictions of philosophical and ethical dimensions. They reflect distinctive notions concerning the relation of individual to State. The one accepting as axiomatic that rights and liberties are government constructs and, as such, those rights and liberties can be lawfully amended, disregarded, or erased altogether. The other accepting as self-evident that rights and liberties are indelibly imprinted in the individual—existing beyond space and time—part of the soul of the individual, critical to a person’s essence, and beyond a government’s lawful ability to change, disregard or eliminate.

We continue with our exposition of Kolbe and the importance of Heller in Second Amendment case decisions in Part Seven of this series.

________________________

*Case History: Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)

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  • 23 thoughts on “Rationalizing Away The Right Of The People To Keep And Bear Arms

    1. Keep in mind the Fourteenth Amendment is also part of the Constitution and specifically applies to and against each State.
      “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …” 14th Amdt Section 1

      1. Of course the 14thA along with the 13th and 15th (known as the Reconstruction Amendments) were passed after the Civil War to insure that states did not legislate away the rights of newly freed slaves. It was never intended to be used to bolster the 2nd or any other amendment (beyond the 13/15th). Strict constructionists (conservatives) should be careful as legislative intent may be an issue if that is how you want to try to use the 14th Amendment to limit what states can do to limit the 2nd A. Just saying!

        1. The debates in Congress during the 1870s on the Civil Rights Acts and the 14th Amendment specifically spoke about te Right to Keep and Bear Arms. The fact that the impetus for the Fourteenth Amendment was the rights of freed slaves, there is no restriction or mention of the word slave .
          ““No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; and all citizens must be secure in our rights since citizens have the right to defend their life.
          Section 5 says that Congress shall enforce by law each section of the amendmemt.

    2. People who support the notion of a second amendment are at a constant disadvantage with these socialists as they pass laws and pay for attorneys on the taxpayer dime, while we who support a free second amendment must fund a lawsuit. We are always fighting a losing battle, they plan, we react. I like that some states have passed laws prohibiting local communities from passing more stringent requirements, and what I like even more is the idea of financial damages when a community loses one of these challenges.

    3. If all of the 2A supporters and practitioners had somewhere to go, as a new and permanent community, it would probably be the safest country on the planet and everyone would want to immigrate there. Of course we would have strict immigration policies and enforcement. Things like the first poster here would of course not be allowed because of his sheer ignorance, or stupidity.
      I just don’t understand why people dont see that its not, by a large majority, the people who own and enjoy gun culture legally and responsibly who are the problem but the criminals who are the problem. You just dont hear outrage about criminals anymore, theyre almost celebrated. Isnt there a law against being a criminal? That was a joke.

      1. @Bill, Somalia is up for grabs. No real government or armed forces. Total disorganization. Yes, they are all armed from 5 years old on up, but they are all addicted to Cot from five years old on up.They can’t shoot for shucks. Hire Executive Outcomes, Inc on contingency. Bull doze the resulting mess. Build the most fantastic resorts on the most fantastic beaches in the entire world. Write a Constitution, and let freedom ring!

        1. Wow, EO! I haven’t heard that name in a few years. Cobus et al were extremely effective, so effective in fact that 400 of them put down an attempted coup of 3,000 and did it in record time. How did they do it? The ROE were very simple, get the job done, period! And they did. They were highly trained, highly motivated.

      2. “Things like the first poster here would of course not be allowed because of his sheer ignorance, or stupidity.” Seems to me that if you support the 2nd Amendment you must also support the 1st. I presume that this is also part of your “joke?”

        1. Dave, yes, it is part of the joke, but I believe what he is stating is that people like Gil would not be treated as normal people due to their lack of cognition. They would be taken care of like my neighbor’s, what then was called retarded, not sure what the current PC term is, adult child was taken care of. Everyone in the neighborhood was mindful of his disability, and he was, unlike Gil, a nice decent person, and treated well.

        2. What? Fighting and duelling were the order the of day in the Founders eras. They would look at our generation who would only use force in self-defense as a era of weaklings.

    4. Because in the good old days duelling was second nature. Heck Abraham Lincoln was quite the fighter and almost got into a public duel with broadswords. The right to fight and duel was the original intention of the 2A.

        1. Please, he is a troll who doesn’t address issues not only because he can’t but because he’s a working member of the anti-gun VPC who uses the pseudonym “Gil” among others.

          That aside, this is, most likely, one of the best articles yet, if slightly longer than the attention span of most.

      1. “The historical reality of the Second Amendments
        protection of the right to keep and bear arms is not that it protects the right
        to shoot deer. It protects the right to shoot tyrants, and it protects the right
        to shoot at them effectively, with the same instruments they would use upon us.”
        –Judge Andrew Napolitano
        Molon Labe…Can’t you READ?

        1. I suspect Gil may be a Soros ‘plant’. Paid to draw folks off topic ,paid for each comment he makes. So, if he can get people to respond,he replies ,etc. $$$. I replied also. Win or loose. If the Socialist`,Communist`,progressive,left,alt left,liberal`s push hard enough,they will learn they are in for a real fight. It`s a war of words…..for the present.

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