The “Right to Bear Arms” and “A Well Regulated Militia”
Common Sense, the Second Amendment, the Supreme Court and the Right to Be Free from Mass Shootings or Senseless Slaughters
At least 10 people died in a parking lot, entrance way and King Soopers store less than ¾ miles from my home today. The dead include a cop and a cashier.
This happened at the shopping center where I and my South Boulder neighbors shop for food and drink; where we eat at brew pubs and Nepalese restaurants; where we buy beer, bike parts, and bagels; where we patronize bank branch offices and barber shops.
So it hit close to home.
The location of the shopping center, the parking lot and the King Soopers where the shooting spree occurred 3/4 miles from my front door isn’t the point. Nor is the fact that I’ve been there hundreds of times with friends and family.
The point is this: there but the grace of the Gods go we, and all of us. It could have been — and could be — any one of us anywhere in the land on any given day.
In Boulder on March 23, 2021, it could have been any one who works at or visits any of the adjacent businesses, or somebody just passing through or walking to the bus stop on Table Mesa Drive. It could have been one — or 100 — of the hundreds students from Fairview High just up the hill on a lunch or after-school break that visit the store and shopping center every day.
Officer Eric Talley, the first officer on the team with his partner, patrolled our neighborhood. He’s been parked on the street outside my house and we always made eye contact and waved when we passed him in the cruiser. Talley’s courage in confronting the shooter saved lives.
After the shooter was wounded in the leg in the exchange of gunfire, no more victims were shot or killed. For his heroism, Officer Talley was shot dead in the head. He left seven children and a widow. He entered the force at the age of 40, to do good by others.
In 1999, Colorado experienced the first mass school shooting in modern history at Columbine High.
In 2012, another senseless slaughter occurred at the Aurora move theater in the Denver suburbs.
Thinking back on those this afternoon, I started sobbing. Because if we’re human, we experience emotions. The more I thought about it, the madder I got. The closer I looked, the clearer it was our federal judicial branch got the law wrong.
Between those two Colorado mass shootings, in 2008, a United States Supreme Court decision in District of Columbia v Heller purported to affirm that an individual’s so-called right to bear arms is guaranteed by the Second Amendment of the U.S. Constitution.
Hogwash.
In the past half century or so, 100-some mass shootings have cost many hundreds of innocent lives.
More than that, we all live in fear.
We live in fear of shootings at school if we’re kids, teachers or parents. We live in fear of a shooting just about anywhere if we leave the house. We live in fear because five justices found the individual right to bear arms trumps the individual and collective right to live free from the constant threat of mass slaughter in public places.
The 5–4 Heller decision was 157 pages total. Justice Scalia’s “opinion” was 64 pages, joined by Roberts, Chief Justice, and Justices Kennedy, Thomas and Alito. The opinion is here: 07–290.pdf (globalsecurity.org)
Justice Stevens dissented, joined by Justices Souter, Ginsburg and Breyer; and Justice Breyer dissented separately, joined by Stevens, Souter and Ginsberg.
All those pages might lead one to believe these are complicated issues on difficult questions of law.
Bull hockey.
This isn’t hard.
A junior high student could have settled the case in five minutes on a single page. We endeavor to do that below.
Assault rifles were designed to kill humans. Ethical hunters don’t need an automatic or a semi-automatic with a 30-round magazine. Michigan limits hunting rifles to six total rounds in the magazine and chamber. Fair chase.
“Hunting” with military grade assault rifles is akin to tossing a grenade into a pond and calling it fishing. For what it’s worth, I eat meat, my many friends who hunt are strong conservationists, and I’ve feasted on fresh game hunted with respect.
The National Rifle Foundation and firearms trade groups would have us believe the “AR” in AR-15 stands for Armalite Rifle. Hooey. ArmaLite and Colt (after acquiring ArmaLite) designed a few of the first assault rifles around 1960. Today, the Berreta AR70/90 is the Italian army’s standard issue service rifle. Manufactured by Berreta.
Killing unarmed civilians with an assault rifle is like shooting ducks in a barrel.
From the Minutemen in 1776 to today’s state national guards, well regulated militias are formed to advance public safety and the freedom to engage in the pursuit of happiness. That includes freedom from foreign enemies and domestic threats. And yeah, that begs the question of who defines the “threats”. We don’t settle that one, here.
The NRA and the play-acting, unregulated militias who support it say they have an answer for why the “right to bear arms” must extend to individual citizens, and all of them. What if we need to rise up and overthrow a government of tyrants, one that would compromise all our individual freedoms guaranteed by the Constitution and the Bill of Rights?
To which I say: damn good question. Let’s think it through.
Say we — or some of us — perceive the need to rise up and overthrow a tyrannical government.
I can relate. A few months ago, some thought the Republic might be teetering on the edge of Civil War when insurrectionists stormed Congress (on January 6, 2021) to keep a President I considered a tyrant in power.
No knowing how it would turn out, if push came to shove I was ready and willing to fight to the death for our freedoms and our democracy. As most any patriot would. On one side or the other.
That’s what civil wars are about. State versus state. County versus county. Neighbor versus neighbor. Abolitionist versus slaver. Brother versus brother. I get it. If you care enough, you’re willing to die for your beliefs.
Let’s keep going. Let’s say 45 stayed in office so my side was taking up arms against the crowd that overturned the election. I’d be an insurrectionist under that scenario. Considered such by 45 and whatever toady was serving as his Attorney General.
If I got caught “bearing arms” to overthrow the tyrant, I’d be a prisoner of war and a traitor to the regime. The Constitution defines treason by a citizen of the U.S. as levying war against the United States.
Congress passed a law providing: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death”, or be imprisoned for at least five years and fined at least $10,000. It’s an old law. $10k was more money when it was passed.
Translation: exercising the “right to bear arms” to overthrow the government subjects the bearer of arms to death. So a “firearms” violation would be the least of my worries if I got busted for taking up arms. The same would be true for whoever took up arms with intent to overthrow our government.
If we oppose the government we take up arms to overthrow, that government will consider us traitors subject to death under the law of the land.
In other words, the Second Amendment NRA crowd want to be law-abiding insurrectionists. That’s what we lawyers refer to in the Olde English as “a contradiction in fooking terms”. The rebels seeking to overthrow the government would legally be considered traitors subject to death regardless of whether they had a Second Amendment “right” to own (or bear) the guns they wielded against their government.
Let’s look at the rest of the world.
Where rising up to overthrow governments isn’t all that uncommon throughout history, including our own back in 1776. In most of those other countries, there is no “right to bear arms”. If there is, it doesn’t extend to insurrectionists.
So, rebels across the globe bury their weapons in the back yard or hide them in the basement under the false floor. Places like Syria, Kurdistan, Nicaragua, Northern Ireland — to name just a few over the last few decades. Even Canada. Or Mexico.
Back to the Supreme Court’s Heller decision, let’s have another think on it as long as we’re rethinking things. Here’s the Second Amendment:
Read it. Think it through. It’s easy enough to reach the obvious conclusion. If you read the words, the dissents offered the only way to make sense of all the words and especially the first four.
“Con Law” 101 requires giving effect to all the words in the text. The premise is that the founders included all the words for a reason. The majority ignored the first four — amounting to the most important of 27 total words in a single sentence.
Here’s an alternative opinion in plain language exercising common sense and applying basic tenets of Constitutional law
Heller, who asserts a Constitutionally protected “right to bear arms” under the Second Amendment, does not allege to be a member of a militia, let alone a well regulated militia. No facts in the record would support such membership.
Accordingly, the District of Columbia’s decision to protect the safety and freedom of other citizens of the District in no way infringes on any of Heller’s Constitutional rights.
The governments of cities, counties and states across the land — as well as the U.S. Congress — are similarly empowered to condition the “right to bear arms” on membership in a well-regulated militia, under the plain language of the Second Amendment.
Heller’s case is dismissed with prejudice, and the District is affirmed.
Honoring the Constitution frees America’s children and teachers to attend school without being slaughtered by psychopaths armed with military grade weapons; and from the fear of mass murder on any given day at their school , place of worship or during any other lawful assembly.
Families across the land need not fear for their lives — or those of their family members from 9 days to 109 years old — if they venture out to the grocery store, a restaurant or any other business or gathering place in the country.
Six last words:
Don’t Take Your Guns to Town
Signed, Chiropolos, J.
Post Script:
Take it away, John (as Boulder wipes our tears away):
Johnny Cash (Live) — Don`t Take Your Guns To Town — YouTube
Don’t take my word or Johnny’s song for the truth. Learn from the past.
Read the history of the American West. Lawman after lawman in wild cow-town after wild cow-town brought peace by requiring that cowboys and others didn’t tote their guns in town.
Before the law curbed the lawlessness, innocent bystanders and law-abiding citizens were at risk of being struck and wounded or killed by stray bullets.
Once the principle was established that civilized communities needed to be safe for families and honest folk, guns were left at home or checked with the sheriff on reaching town. We stopped seeing gunfights in the streets, or bodies being hauled away from senseless shootings rooted in carrying weapons in own.
Places like Abilene and Deadwood changed dramatically for the better through the exercise of common sense and modest precautions. Fisticuffs or knife fights weren’t extinguished, but didn’t put innocent lives at risk.
The occasional shooting became the exception to the rule, instead of a commonplace occurrence. We got it, until we didn’t.
What went wrong to make us less safe today than 150 years ago?
Three letters: the NRA.
Back to the present, it might be relevant that Heller (the plaintiff from the Supreme Court opinion) was a white male. I’ll leave the reader to form they own opinions on whether or not that was germane to the decision of the five white justices who joined Scalia’s majority opinion in Heller.
Important takeaway is that the job of the courts is to get it right on the Constitution. If they get it wrong, they’re human, they erred and they can take another look.
For further reading: The NRA Supported Gun Control When the Black Panthers Had the Weapons — HISTORY
Rifle or pistol?
The Boulder King Soopers shooter killed ten (none wounded) with what is believed to be a legally purchased Ruger AR 556 "pistol". It's not a pistol, but that's what it's called.https://www.youtube.com/watch?app=desktop&v=_aiBQbzflsAIn the Supreme Court Heller opinion, Scalia goes on and on about how certain legal scholars or politicians spoke about the 2A in the 19th Century and whether a particular weapon is in "common use".One word: irrelevant.The 2A opens with "A well regulated militia". The mass murderer in Boulder -- and all of them in all the shootings -- were not in militias. That's the controlling factor.The 2A goes to the "right to bear arms". It means guns.The upshot: the right to bear arms can be limited to members of a well regulated militia by any government with authority to do so, which is all of them: feds, states, counties, towns and cities. That's the starting point. Scalia and the four white dudes who signed his majority opinion are full of soggy overcooked lasagna.Another point. The shooter's ethnicity, religion, age, residency and other demographic details are also irrelevant. The relevant factor under the 2A as to whether they have a right to bear arms is whether they is in a well regulated militia.Bullets kill regardless of the spiritual beliefs or lack thereof of the shooter. Same for ancestry, height, weight, gender and political affiliation. Back in the Wild West, the lawman had everybody check they guns at the jail -- or a hotel or stable with permission of the lawman -- when they got to town. Cowboy, sheep-man, mule-skinner, buffalo hunter, stagecoach driver, shotgun, business-person, traveler, farmer, rancher, didn't matter. E-V-E-R-Y-B-O-D-Y. The rationale: everybody is safe if everybody checks they guns. Nobody is safe if only some bodies check they guns. Simple. One more time for those in the cheap seats: if you're not in a well regulated militia, you don't have a right to bear arms under the U.S. Constitution.
Beat the drum for the roll call of remembrance:Denny Strong
Neven Stanisic
Rikki Olds
Tarlona Bartkowiak
Suzanne Fountain
Teri Leiker
Eric Talley
Kevin Mahoney
Lynn Murry
Jody WatersRest In Peace.
