旼컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� � � � WHY A GUN BAN WILL BE UPHELD BY THE SUPREME COURT � � � 읕컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� I hate ignorance, particularly in people who are ignorant of facts that are readily obtainable. I had often heard, and for that matter had often preached, that the private, individual citizen had a right guaranteed by the Second Amendment to the United States Constitution to keep and bear arms. A friend that I have a lot of respect for told me I was dead wrong and had not done my homework properly. Suddenly I discovered that it was I who was ignorant of readily obtainable facts. I resolved to do something about it and this document is the result of my research. Through the assistance of a customer of Combat Arms, I have done some searching into the thinking of the federal courts regard- ing the Second Amendment. I am saddened to report that the popular belief among gun owners that they have some Constitutional right as individuals to keep and bear arms is totally incorrect. More importantly, it appears that we have, for years, been lead to believe that there is some guarantee of the right to keep and bear arms. Those telling us that have been the people we have supported with our hard earned dollars: the National Rifle Association, the gun publications in the United States plus the other gun organiza- tions and gun clubs across America. My conclusion, on the basis of my research, is that if a gun ban, such as the one against semiau- tomatic rifles and "assault" weapons, is taken to the United States Supreme Court, the Court will decide against the gun owners. Courts in America make their decisions on the basis of a phenomenon called "precedent." The Latin term used by attorneys and judges for this is called "stare decisis" (pronounced STAR-EE DEE- CEE-SIS). It is the method of using a previously decided case to decide a current one. If an attorney or judge was able to find, in the law library, a case that was similar to the one being decided then the judge would, almost without exception, follow the previously made deci- sion. That is to say, he would follow the decision that "preceded" his and hence the name "precedent." Our legal system in the United States is based upon the English common law system. In that English system, the British judges were very careful to follow the decisions of previously decided cases. Ninety-nine percent of the time, that is the proce- dure followed in the courts in England and the United States today. The use of precedents gives uniformity and stability to legal decisions. You see this in courts and on television when a lawyer is trying to make a point with a judge and cites cases to the judge. These are, in the attorney's opinion, cases where earlier judges made a decision that the attorney would like this judge to make. Sometimes the judge will not agree to that earlier decision because the judge feels that the circumstances surrounding this particular case are somehow different. In that instance (rare) the judge does not follow precedent but instead creates a new prece- dent. So, I read through a few of the federally decided cases that make reference to the Second Amendment and found that the gun owner's view of the Second Amendment and that of the Federal District Courts and United States Supreme Court are completely different. Moreover, what I read makes me personally understand better why no one has taken one of these gun bans, such as the one in Morton Grove, Illinois, to the Supreme Court: they would lose! Here is part of what I read during my research. If you find COURT CASES AT THE FEDERAL APPELLATE LEVEL that support the view that the Second Amendment is a guarantee of the right to keep and bear arms for the individual private citizen and not, as the courts have in fact decided, a right granted to the States to permit them to arm themselves against the Federal government and/or rebellion or unrest within the State, then please contact me at the Combat Arms BBS (1-415-537-1777). Leave me a message showing the federal cases cited and the words in the judge(s) decision. Notice that I am insisting upon you using the Federal Courts. These include the United States Supreme Court, Federal District Court of Appeals and the Federal District Courts. The justification for the Federal level court is that there the judges seem to be a bit "wiser" as far as precedent and constitutional law are concerned. Again, I was disappointed to read these court decisions. Unfortunately, they make perfect legal sense. The problem appears to be that we as gun owners have not, in fact, learned what the Second Amendment reads. Here it is. Read every word twice. Amendment II 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. Note that the first 13 words are "A well-regulated militia being necessary to the security of a free state." No reasonable person could argue that this means Harry, Bob, Dorothy and Sam down at the local gun range. They are NOT "well-regulated" and anyone with any common sense will agree. The specific words in the second Amendment are important because they are what the courts have examined and discovered that since the term "well-regulated mili- tia" is included in the Second Amendment, it cannot possibly refer to the individual citizen, who is obviously not a member of any well-regulated militia. Instead, the courts state, it refers to the State's own militia, that which today we call the National Guard. What you and I hear all the time as guns owners is the last part of the Second Amendment, "the right of the people to keep and bear arms shall not be infringed." Unfortunately, those people and organizations that spit out the last 14 words to the Second Amend- ment and leave out the first 13 words seem to me to be doing the gun owning public a great disservice and spreading disinformation. Naturally that helps the anti-gun crowd even more. Another thing worth reading is the Tenth Amendment to the Constitution. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This Amendment is often referred to as the "State's Rights Amendment." Notice that the phrase "or to the people" comes AFTER the reference to the States. Furthermore, the Constitution does not delegate to the United States nor does it prohibit the States from governing gun control. Therefore, the Tenth Amendment will support a gun ban within a State. The logic is simple: the Founding Fathers had little trust of a strong, centralized Federal government. Their faith was in the States. Surely if the people of a given State, through their duly elected officials, decide that specified firearms are to be prohib- ited within their State, then that State would not be tolerant of the Federal government telling it that it could not do so. The Federal courts have decided along these lines every time! I invite you to find the fallacy in this argument. Frankly, as a gun owner and gun store owner, I wish I could. The tragic truth appears to be that the Second Amendment, in the eyes of the Federal courts (and, quite frankly, they are all that really count), feel that the Second Amendment has nothing whatsoever to do with the private, individual citizen. It is sad to see your/my bubble burst but it is better not to live under false hope either. I often have heard people saying in the past that such and such a book shows that the "intent" of the Founding Fathers was different than what I am describing here. Quite frankly, that simply is a moot point and does not matter. Remember, under the doctrine of stare decisis (precedent), today's judge should rule as judges in the past have ruled on similar cases. The precedent is more than a little established. As you will read in the cases below, as recently as 1987, the judges will often refer to the U.S. v. Miller decision that the Supreme Court decided in 1939. That is an example of the doctrine of stare decisis. A FEW OF THE MANY FEDERALLY DECIDED CASES AGAINST US 1. Charles F. ECKERT v. City of Philadelphia, PA, U.S. Court of Appeals, 3rd District, case reference 477 F.2d 610, decided May 2, 1973. "Appellant's theory in the district court which he now repeats is that by the Second Amendment to the United States Constitu- tion he is entitled to bear arms. Appellant is completely wrong about that. As long ago as 1939 the United States Supreme Court held that there must be `...some reasonable relationship to the preservation or efficiency of a well- regulated militia.' ...It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution. See U.S. v. Miller, 307 U.S. 174 (1939)." 2. United States of America v. Ted E. OAKES, U.S. Court of Appeals - 10th District, case reference 564 F.2d 385, decided October 25, 1977. "Defendant presents a long historical analysis of the amendment's background and purpose for which he concludes that every citizen has the absolute right to bear arms. This broad conclusion has long been rejected by U.S. v. Miller, 307 U.S. 174. "The purpose of the Second Amendment, as stated in the Supreme Court in U.S. v. Miller, supra at 178, was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the Amendment must be inter- preted with that purpose in view." 3. U.S. v. Forrest Edwin McCUTCHEON, U.S. Court of Appeals - 7th Circuit, case reference 446 F.2d 133, decided June 14, 1971 "We do not feel required to cite the legislative history of analogous legislation and cases deciding kindred questions relating thereto, or the century and a half of federal legis- lation providing for an organized militia, now the National Guard. We deem it sufficient to rely upon the landmark deci- sion of U.S. v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed 376 (1939)." 4. Linda Kaye KRISCO v. Leroy Oswald, Frederick Conjour and the Township of Whitehall, U.S. District Court for the Eastern District of Pennsylvania, case reference 644 F.Supp. 147, decided January 16, 1987. "Rather the Second Amendment secures to the several states the right to establish and equip a militia. Stevens v. U.S., 440 F.2d 144 (6th Circuit - 1971). Finally, the Second Amendment has consistently been held to constitute a limita- tion upon the power of the federal government vis-a-vis the states, not a limitation upon the state vis-a-vis their own citizens. Eckert v. City of Philadelphia, 129 F.Supp. 845 (E.D. Pa. 1971)." 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 Notes before proceeding: The reader is advised that many of the several laws quoted in the U.S. v. Miller case, as relate to the National Firearms Act, have been since modified. The discussion of those weapons laws which is contained in the Supreme Court decision was based on the laws then in force. Also note that the defendants, Jack M