Gore, Bush and The Supreme Court

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Extracted from article in today's paper:

Many important Supreme Court rulings in recent years have been decided by a 5-4 margin.

There is an excellent chance the next President will nominate at least one justice to the Supreme Court. Of the nine current justices, Nixon appointed one, Ford one, Reagan three, Bush two and Clinton two. Only Carter is missing from the group. Of the nine, seven were nominated by Republicans and two by Democrats.

Chief Justice William Rehnquist is 75 and has served 29 years on the bench. John Paul Stevens is 80 and has served 24 years. Six of the other justices are in their 60s and one is 52.

When you go to the polls on November 7th, keep in mind the impact the next President may have on the direction of the Supreme Court.

-- Ken S. in WC TN (scharabo@aol.com), October 10, 2000


Ive given that a great deal of thought also, Ken. I must admit that this issue is the only one that has really given me pause on my presidential consideration. Of the major paties, I know that one will certainly do great damage and the other I believe is rather questionable in his Constitutional positions. Some minor party candidates have positions much closer to that of the Framers and would be a better choices as "appointers". Of course, one needs to be president to be an "appointer" so that brings up the whole "throw your vote away third party" question. Many of my associates have chosen to take the more pragmatic approach and vote for the "lesser of the two big evils". I suspect that I will make the decision to stand on principle and vote for "the greatest of the little goods".

-- William in WI (thetoebes@webtv.net), October 10, 2000.

Maybe, maybe not, Ken...

Your statement "Of the nine, seven were nominated by Republicans and two by Democrats" speaks volumes about the character of the Supreme Court. If the justices had toed the line drawn by the president that appointed them, then the numbers indicate that the court should be conservative, right-leaning and Republican in character. Roe vs. Wade would have been reversed long ago and there would be no school prayer controversy. So, what happened?

It seems that when a justice gets appointed for life, he or she becomes their own person with no political favors to pay back. Since the Senate has to confirm the president's appointee, given it's almost evenly matched Republican / Democrat make-up, I just don't see any new Supreme Court justice being anything other than a middle-of- the-roader. Any president who thinks he has a justice "in his pocket" is bound to be disappointed.


-- Craig Miller (CMiller@ssd.com), October 10, 2000.

This is VERY important, in spite of Craig's caveat. Anyone can "become their own person" once appointed to a virtually irrevocable position. However, we've still got to play the odds. As a Libertarian, I would support Harry Browne - but let's face it boys and girls - he's not going to be our next president! Realistically, you have Bush or Gore. If you think Socialism, and possibly Communism eventually, is "your way of life", then Gore is your man. If you are an individual hoping for lesser gov't, then Bush is your best bet (notice I didn't use a word like "savior"!). One step at a time. Hard to imagine any individualist such as those who might post or read here would cuddle up to Socialism, but I guess it happens. As for me - I wish the gov't would consist of taking care of roads and defense, and leave the rest of it to the states! Remember the 10th Amendment? Neither does anyone else, especially the feds! GL!

-- Brad (Homefixer@SacoRiver.net), October 10, 2000.

I'll still be voting for Harry Browne come November, I cannot in all good conciousness (sp.?) vote for anyone that does not hold the up the Constitution as the highest power of our government. The revolution has to start somewhere, it won't just appear overnight without a lot background work and small beginnings, remember, there is no such thing as a wasted vote, just a vote not cast. Vote from your heart, not from imagined consequences! Annie in SE Ohio.

-- Annie Miller (annie@1st.net), October 10, 2000.

Since we have so many libertarians out here, I thought that someone might be interested in hearing what Harry had to say...

Supreme Court Justices

Fallacy No. 6: There's a significant difference in the Supreme Court justices Bush or Gore would appoint. In fact, there's very little difference between them -- just as there's very little difference between Republican judges Anthony Kennedy and David Souter on the one hand, and Democrats Stephen Breyer and Ruth Ginsberg on the other.

Mr. Bush, for example, says he'll appoint "strict constructionists" to the bench. But in Texas he has appointed a number of activist judges -- the very kind Republicans claim to oppose.

All we want from a Supreme Court justice is the ability to read and understand the plain words of the Constitution. When the First Amendment says "Congress shall make no law ... abridging the freedom of speech, or of the press" that's what it means -- and thus it is unconstitutional to censor the Internet, prohibit tobacco advertising, or limit political advocacy. When the Second Amendment says, "the right of the people to keep and bear Arms, shall not be infringed," that's what it means -- and thus all the gun-control laws on the books are unconstitutional.

You will get Supreme Court justices who will honor the Constitution and restore your liberty only when you get a president who believes more in your liberty than he does in big government. So we'd better get started now doing whatever is necessary to elect such a President -- no matter how long you think it might take.

-- William in WI (thetoebes@webtv.net), October 11, 2000.

Why is it your Right to Bear Arms fanatics choose only to quote the portion of the amendment you choose. You conveniently leave off the part of, "In order to maintain a well-regulated state militia,..." Well-regulated, to a strict constructionalist, would be the federal government has the authority to say how they are armed in order to be a well-regulated body. For example, the government might say, in order to avoid stocking a multitude of ammunition types, all state militias shall only have rifles which fire .223 ammunition and all hand-guns must fire 9mm.

-- Ken S. in WC TN (scharabo@aol.com), October 11, 2000.


Just to be sure that we are on the same page here...those are Harry Brownes words not mine.

Since Harry isnt here to answer so I will try to compose an appropriate answer on his behalf.

-- William in WI (thetoebes@webtv.net), October 11, 2000.

The sole and major purpose of a "well regulated state militia" according to Constitution historians, was to be able to keep the Federal government in check, that is, George Washington, Thomas Jefferson, etc., wanted to insure that at all times the States would combined have more power, both represented and by brute force. There is where the idea of well armed militia came in. The framers of the Constitution feared above all else that the Federal government would become too powerful and get out of hand, and not respond to the wishes of the people. And that is why Republicans and Democrats want to take our guns away, or at least, make it very difficult for us to own them. They fear that if we are well enough armed, which is our right as guaranteed under the Constitution, we won't take their crap anymore. They ought to worry, that time is coming soon. That is the whole gun control issue in a nutshell, after you eliminate all the politically correct gobble-de-gook. Annie in SE OH.

-- Annie Miller (annie@1st.net), October 11, 2000.

I am a constitutionlist ! I have at my fingertips multiple automatic weapons and large groups to back me ! I am what the "Founding Fathers" were ! I take no joy in what I have been forced to become.

Some say men like me are mentally ill ? We have suicide by cop syndrome ? OK, maybe--I call it Freedom syndrome. So you live in chains and smile, why ? Because your warm, fed, and housed ? Well my friends---I'd rather be cold, hungery, and calling a cave home than to live like that !

If you intend to live like that (which a lot of people do) than all can I ask --"do it on your property". In the end you cannot hide there, neither can I. We can only fulfill the scripture. Today ? or Tommorrow ? Your choice ! Either way, the moon turns to BLOOD !

-- Joel Rosen (Joel681@webtv.net), October 11, 2000.

Thanks William in WI & Annie Miller, I voted for Harry last time, but was really wavering now because of who might be put on the Supreme Court. Now I know I'll go with Harry again.

-- Darrell Schlueter (schlut@adams.net), October 12, 2000.

Ken from TN. We are fanatics? Why can't you liberals quote the Constitution correctly? The 2nd Amendment states: "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 portion you attempted to quote is simply and introductory clause to the amendment as it is in at least one other area of the Constitution. It is acknowledging Congress's right of supervising the milita but, it is hands off when it comes to infringing on the right of the people to bear arms. The 2nd Amendment is there for one reason and that is to keep a tyrannical government at bay. Read the Federalist Papers, it is very obvious!

-- Jerry Hammond (csawolf@madisontelco.com), October 12, 2000.

Yeah, Jerry and Dareel ! Finally someone who knows how to read! If we don't stand up for our Constitution rights, who will? We will, that's who! That, and our well regulated State militia, got a lot of members here in rural SE OH ready when needed. Men in black, beware, we can shoot a varmint at 100 yards or more!

-- Annie Miller (annie@1st.net), October 12, 2000.

Well-regulated, to a strict constructionalist, would be the federal government has the authority to say how they are armed in order to be a well-regulated body. For example, the government might say, in order to avoid stocking a multitude of ammunition types, all state militias shall only have rifles which fire .223 ammunition and all hand-guns must fire 9mm.

Believe it or not there was a rather extensive argument over this very same question during the debates that led up to the Militia Act of 1792.

That act established a "Uniform Militia throughout the United States,"consisting of every able-bodied male citizen between the ages of eighteen and forty-five and provided: That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

To understand how this is related and what it means in relation to the Second Ammendment, we will have to take a rather lengthy trip though history.

This bill was passed because some militia members often showed up for assembly with weapons and accoutrements, or a lack thereof, that were considered by many as substandard to meet military needs. During the revolution we had learned hard lessons due to the failure of the militia to be armed with bayonettes. Often a citizen soldier was unable to preform his role because his flint failed and he had not brought another or he had not properly estimated the amount of ammunitions to bring. Some type of guideline had to be created to insure that a member of the militia would be able to preform his duties in future conflicts.

Many militia members showed up with weapons with bores smaller than .45 caliber, which was considered the smallest effective military round, and many argued that it should be made mandatory that each man be required to bring weaponry that met a specific caliber requirment and should specify the accoutrements to be used as it would present a more threatening proffesional like force to the enemy.

Those on the other side of the issue argued that this was a militia and it was composed of armed free citizens. As such, the federal government then did not have authority to specify anything to the individual without paying for it. Congress was not authorized for such expenditures during times of peace. They also argued that any man willing to fight with any arm at hand was better than only fielding those who could afford a military caliber musket. The tradition of asking a free man to take the field with whatever he could afford was and ancient tradition, right and practice. I cannot recreate their historical sources but I do have something nearly as good...

Senate Subcommittee on the Constitution. JANUARY 20, 1982
The right to keep and bear arms as a part of English and American law antedates not only the Constitution, but also the discovery of firearms. Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty.

At this point, though a king could grant himself the authority to specify the weapons required, it was understood that the common man could not be expected to afford nor learn to properly use some weapons of the day.

The body of armed citizens were known as the "fyrd". While a great many of the Saxon rights were abridged following the Norman conquest, the right and duty of arms possession was retained. Under the Assize of Arms of 1181, "the whole community of freemen" between the ages of 15 and 40 were required by law to possess certain arms, which were arranged in proportion to their possessions. They were required twice a year to demonstrate to Royal officials that they were appropriately armed. In 1253, another Assize of Arms expanded the duty of armament to include not only freemen, but also villeins, who were the English equivalent of serfs. Now all "citizens, burgesses, free tenants, villeins and others from 15 to 60 years of age" were obliged to be armed.

[The] English legal system not only permitted, but affirmatively required them, to be armed. The thirteenth century saw further definitions of this right as the long bow, a formidable armor-piercing weapon, became increasingly the mainstay of British national policy. In 1285, Edward I commanded that all persons comply with the earlier Assizes and added that "anyone else who can afford them shall keep bows and arrows".

Edward I policy was the first enactment of a requirement of what weapon was to be owned by a specified group. It wasnt until 1511 that Henry the VIII

expanded the requirement of longbow ownership, requiring all citizens to "use and exercyse shootyng in longbowes, and also have a bowe and arrowes contynually" in the house. Fathers were required by law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them in longbow use.

The militia continued to be a pivotal force in the English political system. The British historian Charles Oman considers the existence of the armed citizenry to be a major reason for the moderation of monarchical rule in Great Britain; "More than once he [Henry VIII] had to restrain himself, when he discovered that the general feeling of his subjects was against him.... His 'gentlemen pensioners' and his yeomen of the guard were but a handful, and bills or bows were in every farm and cottage". The later Tudor monarchs continued the system and Elizabeth added to it by creating what came to be known as "train bands", selected portions of the citizenry chosen for special training. These trained bands were distinguished from the "militia", which term was first used during the Spanish Armada crisis to designate the entire of the armed citizenry.

In 1642, civil war broke out and promulgated weapons confiscation, oppression of minorities, and silencing of political opposition. Charles II won and began enacting repressive legislation, expanding the definition of treason, establishing press censorship and ordering his supporters to form their own troops creating his own secret police as it were. In the ensuing years, roving predatory bands terrorized the countryside of the unarmed populace who now had no means to defend themselves from brigands and marauders.

In 1668, the government of James was overturned in a peaceful uprising which came to be known as "The Glorious Revolution". Parliament resolved that James had abdicated and promulgated a Declaration of Rights, later enacted as the Bill of Rights. Before coronation, his successor William of Orange, was required to swear to respect these rights.

At this point, due to arbitrary power exercised by the [government] against the militia and its effect of disarming the nation the House of Commons initiated a Bill of Rights.

The Bill of Rights, as drafted in the House of Commons, simply provided that "the acts concerning the militia are grievous to the subject" and that "it is necessary for the public Safety that the Subjects, which are Protestants, should provide and keep arms for the common defense; And that the Arms which have been seized, and taken from them, be restored." The House of Lords changed this to make it a more positive declaration of an individual right under English law: "That the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law." The only limitation was on ownership by Catholics, who at that time composed only a few percent of the British population and were subject to a wide variety of punitive legislation. The Parliament subsequently made clear what it meant by "suitable to their conditions and as allowed by law". The poorer citizens had been restricted from owning firearms, as well as traps and other commodities useful for hunting, by the 1671 Game Act. Following the Bill of Rights, Parliament reenacted that statute, leaving its operative parts unchanged with one exception--which removed the word "guns" from the list of items forbidden to the poorer citizens. The right to keep and bear arms would henceforth belong to all English subjects, rich and poor alike.

Note that this all occurred in relativly recent history for the Framers. The people had the right at this point to own not just a particular type of arm but all arm. The Framers were educated men and had learned many lessons from the past. We would do well to remember the 1671 Game Act when seemingly innocuous game laws are used to threaten our rights, phrases like cheap handguns are used to disarm the poor amongst us and the phrase sporting purpose is bandied about as the only reasonable justification for firearms.

In the colonies, availability of hunting and need for defense led to armament statutes comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were "well armed"; in 1631 it required colonists to engage in target practice on Sunday and to "bring their peeces to church." In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.

When the British government began to increase its military presence in the colonies in the mid- eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that his act was illegal since they were "British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights" while another argued that this "is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense". The newspaper cited Blackstone's commentaries on the laws of England, which had listed the "having and using arms for self preservation and defense" among the "absolute rights of individuals." The colonists felt they had an absolute right at common law to own firearms. Together with freedom of the press, the right to keep and bear arms became one of the individual rights most prized by the colonists. When British troops seized a militia arsenal in September, 1774, and incorrect rumors that colonists had been killed spread through Massachusetts, 60,000 citizens took up arms. A few months later, when Patrick Henry delivered his famed "Give me liberty or give me death" speech, he spoke in support of a proposition "that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government...."

This is the point in time when the phrase well regulated came into usage in association with the militia. We know that at this point the crown has no authority over the type of arm owned by a subject due to the English Bill of Rights and its creation of common law. All men are allowed the use of all weapons and the crown has no authority to say else wise. We also know that these men were well practiced in the art of the rifle and that what we would term as readiness drills were common practice.

Throughout the following revolution, formal and informal units of armed citizens obstructed British communication, cut off foraging parties, and harassed the thinly stretched regular forces. When seven states adopted state "bills of rights" following the Declaration of Independence, each of those bills of rights provided either for protection of the concept of a militia or for an express right to keep and bear arms.

It is significant that some wrote it in as a militia concept and some expressed the individual right and that is because historically they are the same thing. They are not dependant upon one another nor can they be considered as issues independently of one another because they are not separate issues but intertwined into a singular historical precedent.

Following the revolution but previous to the adoption of the Constitution, debates over militia proposals occupied a large part of the political scene. A variety of plans were put forth by figures ranging from George Washington to Baron von Steuben. All of the proposals called for a general duty of all citizens to be armed, although some proposals (most notably von Steuben's) also emphasized a "select militia" which would be paid for its services and given special training. In this respect, this "select militia" was the successor of the "trained bands" and the predecessor of what is today the "national guard". In the debates over the Constitution, von Steuben's proposals were criticized as undemocratic. In Connecticut one writer complained of a proposal that "this looks too much like Baron von Steuben's militia, by which a standing army was meant and intended." In Pennsylvania, a delegate argued "Congress may give us a select militia which will, in fact, be a standing army--or Congress, afraid of a general militia, may say there will be no militia at all. When a select militia is formed, the people in general may be disarmed." Richard Henry Lee, in his widely read pamphlet "Letters from the Federal Farmer to the Republican" worried that the people might be disarmed "by modeling the militia. Should one fifth or one eighth part of the people capable of bearing arms be made into a select militia, as has been proposed, and those the young and ardent parts of the community, possessed of little or no property, the former will answer all the purposes of an army, while the latter will be defenseless." He proposed that "the Constitution ought to secure a genuine, and guard against a select militia," adding that "to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." The suspicion of select militia units expressed in these passages is a clear indication that the framers of the Constitution did not seek to guarantee a State right to maintain formed groups similar to the National Guard, but rather to protect the right of individual citizens to keep and bear arms. Lee, in particular, sat in the Senate which approved the Bill of Rights. He would hardly have meant the second amendment to apply only to the select militias he so feared and disliked.

Other figures of the period were of like mind. In the Virginia convention, George Mason, drafter of the Virginia Bill of Rights, accused the British of having plotted "to disarm the people--that was the best and most effective way to enslave them", while Patrick Henry observed that "The great object is that every man be armed" and "everyone who is able may have a gun".

Nor were the antifederalist, to whom we owe credit for a Bill of Rights, alone on this account. Federalist arguments also provide a source of support for an individual rights view. Their arguments in favor of the proposed Constitution also relied heavily upon universal armament. The proposed Constitution had been heavily criticized for its failure to ban or even limit standing armies. Unable to deny this omission, the Constitution's supporters frequently argued to the people that the universal armament of Americans made such limitations unnecessary. A pamphlet written by Noah Webster, aimed at swaying Pennsylvania toward ratification, observed Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.

In the Massachusetts convention, Sedgwick echoed the same thought, rhetorically asking if an oppressive army could be formed or "if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" In Federalist Paper 46, Madison, later author of the Second Amendment, mentioned "The advantage of being armed, which the Americans possess over the people of all other countries" and that "notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

To be continued on Monday

-- William in WI (thetoebes@webtv.net), October 13, 2000.

Ken et al: Remember when the word "gay" meant nothing more than "happy"? Well, our language is ever-changing, and the phrase "well- regulated" is a case in point. Remember the "Regulator" clocks? Well-regulated, in the parlance of the time meant accurate, not well controlled. It meant having a militia that could hit what it was aiming at, which is the real definition of gun control. And in order for the militia to be well regulated, it had to be familiar with firearms and adept in their use, which could only be accomplished by the right of the individual to own and bear arms! GL!

-- Brad (Homefixer@SacoRiver.net), October 14, 2000.

Thank you, William, for posting all that -- it sure makes for interesting reading! I wonder what would happen if all the people were required to won guns and know how to use them now? And to teach their children to use them? I know my father taught my brothers and I to shoot when we were pretty little, and none of us has ever used a gun in a crime! And, Brad, thank you for your comment on what "well- regulated" means. A valuable addition to any home library is a copy of the Noah Webster's dictionary printed in the early 1800's, and now being reprinted. A lot of homeschool suppliers carry it, if anyone is interested in seeing what words used to mean.

-- Kathleen Sanderson (stonycft@worldpath.net), October 14, 2000.

How come my response came up in bold print? I didn't do that!!

-- Kathleen Sanderson (stonycft@worldpath.net), October 14, 2000.

It's really incredible to me that the folks who scream for gun control don't understand that the screaming they do is only allowed because of guns.

Thanks very much for the history, William. It is a blessing to have you here!

-- Doreen (animalwaitress@yahoo.com), October 14, 2000.

I don't have a comment -- just popping in to turn off the BOLD 'cause William left it on. Hmmmm. I think he's the one who taught me how to do this! Gee, now I hope I did it right!

-- Joy Froelich (dragnfly@chorus.net), October 15, 2000.

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