"F*ck the South"
Steve Schear
s.schear at comcast.net
Mon Nov 29 23:21:18 PST 2004
At 12:40 PM 11/22/2004, Tyler Durden wrote:
>A hilarious rant. You can hear this guy's anger ain't just for show,
>too--> www.fuckthesouth.com
>
>-TD
>
>Fuck the South. Fuck 'em. We should have let them go when they wanted to
>leave. But no, we had to kill half a million people so they'd stay part of
>our special Union. Fighting for the right to keep slaves - yeah, those are
>states we want to keep.
>
>And now what do we get? We're the fucking Arrogant Northeast Liberal
>Elite? How about this for arrogant: the South is the Real America? The
>Authentic America. Really?
>
>Cause we fucking founded this country, assholes. Those Founding Fathers
>you keep going on and on about? All that bullshit about what you think
>they meant by the Second Amendment giving you the right to keep your
>assault weapons in the glove compartment because you didn't bother to read
>the first half of the fucking sentence?
The Mother Jones article link to by this article spouts the same
gun-control BS that the liberal press repeats ad nauseam day in and day
out. "Regarding the second broad question of individual versus
state-militia rights, the Court held in its 1939 United States v. Miller
decision that individuals have in effect no right to keep and bear arms
under the amendment, but only a collective right having "some reasonable
relationship to the preservation or efficiency of a well-regulated
militia." Lower courts have consistently applied the Miller decision in
upholding various gun-control laws over the years. "
Not quite.
Recent History
The story begins with the National Firearms Act of 1934, which was the
first federal law regulating firearms. Prior to that time, it was generally
believed that the Constitution did not grant the federal government this
power. The Firearms Act levied a prohibitive $200 dollar tax on machine
guns and sawed off shotguns. Government officials claimed that these were
the weapons of choice for the criminal gangs that evolved during prohibition.
This law was enacted during a period when a determined effort was being
made to expand federal police power at the expense of the states. A crafty
legislative tactic of that time was to construct new federal criminal laws
as commerce measures, which could be justified as revenue producers in the
event they were challenged by supporters of state's rights. Some have
speculated that the 1934 Firearms Act was passed to provide job security
for federal agents who were threatened with unemployment by the repeal of
alcohol prohibition in 1933.
Like most criminal cases, U.S. v. Miller involved some unsavory characters.
Jack Miller, a bank robber and moonshiner with many enemies, felt the need
to carry a sawed off shotgun without paying the tax. He and his associate,
Frank Layton, had the misfortune to be caught transporting it from Oklahoma
to Arkansas and were arrested in June of 1938 by federal agents on charges
of violating the Firearms Act.
They were brought before United States District Court Judge Heartsill Ragon
in Fort Smith, Arkansas who encouraged them to plead not guilty and
appointed an attorney to represent them. He then found in their favor,
declaring that the relevant section of the Firearms Act was in violation of
the Second Amendment and therefore unconstitutional.
Federal law enforcement authorities were not pleased. Judge Ragon's
decision threatened the expansion of federal power, so the case was quickly
appealed to the Supreme Court. Jack could not afford legal representation
and died of gunshot wounds before the hearing date. His co-defendant Frank
Layton apparently decided he wasn't interested in defending his or our
rights under the 2nd and took four years probation.
That a Supreme Court case could be decided without the court hearing both
sides of the argument seems bizarre. Yet this was the perfect opportunity
for advocates of greater federal power to advance their agenda. With no
opposition, they could not lose. Despite the lack of defendant
representation the opinion, written by Justice James Clark McReynolds, was
notable in that it did not completely cave in to the government demands.
The resulting decision issued in May of 1939 stated that "in the absence of
any evidence" the Supreme Court could not say that a sawed off shotgun had
any relationship to the militia.
The critical point here is the absence of evidence. Of course that was
literally correct, since Miller's side never showed up in court. If there
had been a N. R. A. Miller might very well have gone differently. After
stating the court's opinion, McReynolds included passages from various
historical sources to show that the militia consists of all able-bodied men
who have a right, perhaps even a duty, to own firearms suitable for
military service. There was little reason to include these references
unless McReynolds wished to protect the Amendment from further encroachment.
The case was returned to the lower court where Miller, if living, could
have made further arguments on his own behalf. He could have easily and
correctly argued that short-barreled shotguns had been popular military
weapons in the trenches of the First World War. It was lucky for the
federal government that he was dead.
Still, the decision set off alarm bells in D.C. Federal prosecutors
couldn't wait to weaken Miller. In Cases v. U.S. in 1942 they found their
opportunity. The robed ones didn't see a straightforward way to eviscerate
Miller. Instead they accepted many of the ruling's conclusions, but tried
to draw a fence around it application "However, we do not feel that the
Supreme Court in Miller was attempting to formulate a general rule
applicable to all cases."
"In view of this, if the rule of the Miller case is general and complete,
the result would follow that, under present day conditions, the federal
government would be empowered only to regulate the possession or use of
weapons such as a flintlock musket ... But to hold that the Second
Amendment limits the federal government to regulations concerning only
weapons which can be classed as antiques or curiosities -- almost any other
might bear some reasonable relationship to the preservation or efficiency
of a well regulated militia unit of the present day -- is in effect to hold
that the limitation of the Second Amendment is absolute."
"Another objection to the rule of the Miller case as a full and general
statement is that according to it Congress would be prevented by the Second
Amendment from regulating the possession or use by private persons not
present or prospective members of any military unit, of distinctly military
arms, such as machine guns, trench mortars, anti-tank or anti-aircraft
guns, even though under the circumstances surrounding such possession or
use it would be inconceivable that a private person could have any
legitimate reason for having such a weapon."
Right, what legitimate reason does Steve Schear have for keeping a fully
armed tank in their back yard? While this certainly seems reasonable to
most citizens, was this type of limitation intended when the Framers
drafted the 2nd?
Does Original Intent still matter?
According to Mr Lessig's analysis of Supreme Court judicial conduct,
"Translating Federalism: United States v Lopez," one of the challenges
faced by those attempting to interpret the Constitution is that there has
been a qualitative change in the depth of understanding of common citizens
regarding the "fictions" and "conventions" that underlie it. He cites de
Tocqueville, following his early 1800s U.S. tour, to support the assumption
that "The government of the Union rests almost entirely on legal fictions.
The Union is an ideal nation which exists, so to say, only in men's minds
and whose extent and limits can only be discerned by the understanding.
Everything in such a government depends on artificially contrived
conventions, and it is only suited to a people long accustomed to manage
its affairs, and one in which even the lowest ranks of society have an
appreciation of political science."
The system is not fundamentally different, in this sense, from baseball:
For no one would say that baseball is just the rules of the game; more than
the rules, it is the understandings of those rules, and the practices that
they envision, that constitute the knowledge necessary to play the game.
But what happens when this "diverse knowledge and discernment" disappear?
When these "artificially contrived conventions" lapse, how does a
constitutional regime respond? More particularly, how does written
constitution survive when the "fictions" upon which it rested indeed become
fiction? His answer is not very well.
This is the distinctive feature of constitutionalism in America. It is not
that conventions and understandings behind the constitutional text
disappear; it is that they change. They change both in their substance, and
in their location: They not only direct different readings of the
constitutional text, but they are possessed, or understood, no longer by
"the common people," instead by a constitutional elite lawyers, law
professors, and members of government. The distinctive problem of American
constitutionalism is how to read this constitutional text, when these
understandings are fundamentally different from what they were. The result
of this erosion of common understanding is that the Supreme Court swings,
sometimes wildly, between two poles Mr. Lessig calls "orginalism" and
"texturalism".
Originalism attempts to maintain fidelity and articulate these previously
understood conventions, and apply them today to assure that the
constitutional structure original established is, so far as possible,
preserved. The effort, we could say, is to translate that original
structure into the context of today. Texturalism is less focused on
fidelity. Its method is more direct. It simply reads a text according to
relatively simple rules of interpretation, finding that understanding of
the text that is most compelling in the current context. It doesn't worry
whether that current reading is the original reading. It aims simply at
finding a reading that coheres best with what is now understood to be the case.
Though many of today's citizens and judiciary are most comfortable with a
texturalistic interpretation, in my view only an originalistic reading is
acceptable. Texturalism is a slippery slope which encourages a "make it up
as you go along" ethic. It is in just this situation we find ourselves in
today regarding the 2nd Amendment.
Our Radical Beginnings
From the Declaration of Independence the right of individuals to overthrow
their governments when THEY feel that it has been enshrined. While some
might insist that Constitutional Amendments or massive civil unrest is the
only legitimate means of achieving fundamental change, I would remind you
that only a relative minority of American Colonials took an active part in
the Revolution. Even Lincoln, watching the storm clouds approach over
secession, recognized this right for violent overthrow.
"Whenever they shall grow weary of the existing Government, they can
exercise their constitutional right of
amending it or their revolutionary right to dismember or overthrow it."
-- First Inaugural Address (available at
http://www.bartleby.com/124/pres31.html)
"Any people anywhere, being inclined and having the power, have the right
to rise up, and shake off the existing
government, and form a new one that suits them better. This is a most
valuable,---a most sacred right---a right,
which we hope and believe, is to liberate the world. Nor is this right
confined to cases in which the whole people
of an existing government, may choose to exercise it."
(Speech in the United States House of Representatives, Jan. 12, 1848)
Back to the Future
You or I certainly couldn't consider overthrowing our government by force
with a pistol, rifle or shotgun. The robed ones understood this clearly in
Cases. If the rule of the Miller case were to stand as a full and general
statement "... Congress would be prevented by the Second Amendment from
regulating the possession or use by private persons not present or
prospective members of any military unit, of distinctly military arms, such
as machine guns, trench mortars, anti-tank or anti-aircraft guns, even
though under the circumstances surrounding such possession or use it would
be inconceivable that a private person could have any legitimate reason for
having such a weapon. It seems to us unlikely that the framers of the
Amendment intended any such result."
The Justices knew this assertion against individuals possessing the right
and the means for violent overthrow to be historically false. I suspect
they saw acceptance of a plain reading of the 2nd as tantamount to a
suicide pact. Accordingly they adopted a textural interpretation. As the
comedian Lenny Bruce was fond of saying, "In the halls of justice, the only
justice is in the halls."
So, where we sit now is that we have an implied right to overthrow our
government by violence but the planning or possession of the effective
means is a felony. From my perspective an acceptance of the original intent
of the Framers and complete reversal of Miller/Cases is in order. But I'm
not holding my breath. Both the liberal and conservative poles in our
political spectrum routinely seek to obtain "plain readings" of those
Amendments they support and textural interpretations of those they abhor.
Only by a full and complete reading of all Amendments can we all truly hope
to attain the rights and protections afforded under our great system of
laws. If some of these laws have become outdated or culturally problematic,
do not weaken our system by interpreting them away. Use the Amendment
process. That's what its there for.
(I have submitted a piece similar to this to the NYT and other press but I
doubt their editorial bias will incline them to ever publish it.)
Steve Schear
P.S. If still doubt the basis of my arguments I point you to "The
Embarrassing Second Amendment," by professor Sanford Levinson
http://www.shadeslanding.com/firearms/embar.html
More information about the cypherpunks-legacy
mailing list