Commentary: Dead Wrong

share this:

us-supreme-court Dead Wrong

By Craig R. Smith

The Supreme Court’s ruling on Chicago’s gun control law of June 28th severely restricts what states can do regarding gun control within their borders. True conservatives, like myself, are appalled. Not only does this narrow 5-4 decision infringe on states’ rights, or what’s left of them, it violates the conservative justices own claim that they read the constitution using the lens of the original intent of the Founders. The fact is the Second Amendment was added to the Constitution to strengthen the states’ right to form a militia by empowering their citizens to bear arms under special circumstances. It was not written to give citizens the right to own guns in all circumstances.

You don’t have to take my word for it. Placing the amendment in context, the Ninth Circuit Court of Appeals, that’s the one for California, ruled that the Second Amendment does NOT prohibit states or the federal government from restricting the possession of guns. In the UNANIMOUS ruling Judge Reinhardt relied on the conservative standards of “original intent” and “strict construction of the Constitution.” He concluded that “‘well-regulated’ confirms that ‘militia’ can only reasonably be construed as referring to a military force established and controlled by a government entity.”

We can trace the Amendment back through James Madison and the need for some states to protect themselves from disturbances within their borders. Shays rebellion in Western Massachusetts had threatened many states at that time. Hence the right to empower the states to create their own militias. Both the Pennsylvania frame and the Massachusetts constitution argued that the people have the right to keep and bear arms but only for “the common defense.” Thus, using the criteria established by conservatives for reading the Constitution, the Ninth Circuit concluded that the Second Amendment allows states, not individuals, to form militias and thereby confer on individuals of the state the right to bear arms.

But even if the Supreme Court’s majority did not want to be consistent on this issue, they know that amendments are not absolute when faced with a compelling government interest. For example, the First Amendment does not protect speech that is treasonous or defamatory. It is in the government’s interest to protect national security and to prevent libel and slander. The compelling government interest in the case of the Second Amendment is rampant death and crime by hand gun. Twelve thousand people a year in the United States are shot to death, that’s about 33 a day. About 240 a day are injured by gun fire. Both categories include much domestic violence and many children. Many of the children have found guns at home; and many of those take guns to school. With almost 500 handgun killings a year in Los Angeles alone, not to mention rapes that occur using a gun to the head, assaults and the like, one would think an effective gun control system would be in place. Perhaps that is why in the previous case before the Supreme Court in 2008, President Bush’s U.S. Solicitor General Paul D. Clement said guns are subject to “reasonable regulation” by the government and that all federal restrictions on guns should be upheld.

But the Supreme Court has terminated that possibility.

Our only hope is to realize that five to four rulings are weak and can be overturned when one judge changes his or her mind, or when a judge retires that voted on the prevailing side and is replaced by one favoring the other side. Hopefully, the Supreme Court will come to its collective senses soon and undo this terrible decision.

Dr. Craig R. Smith, Director
Center for First Amendment Studies
Cal State Long Beach

Craig R. Smith is a professor of communication studies at California State University, Long Beach. He is also the director of the Center for First Amendment Studies at CSULB and president of the Freedom of Expression Foundation, which was created in 1983 and dedicated to research on First Amendment issues. Dr. Smith has written several articles on gun issues. In fact, was one of the very first people to come up with the idea of ballistic registration of barrel markings of handguns to give law enforcement a new and efficient way of matching the bullet from a crime scene with the gun that was used in the crime.

Photo Credit


12 Responses to “Commentary: Dead Wrong”
  1. Tucker says:

    No, sir, YOU are dead wrong. Re-read the 2nd ammendment which states that the right of the people to keep and bear Arms shall not be infringed. Even if you would like to pretend that it does not apply to individuals, that is not how the text reads.
    You seem to ascribe to the distorted view that our rights are granted by the government. Nay, the rights precede this or any government. The Bill of Rights exists merely to protect rights that every free man posseses by the nature of his humanity and freedom. The right of self protection is absolutely necessary to Life, Liberty, and the Pursuit of Happiness.
    Why you commentary appears on a site about Long Beach, I am not sure. But I am glad for my fellow citizens of this city that the Supreme Court has struck down at least this sort of attempt by you and your fellows to deprive us free men of our unalienable rights.

  2. Tucker says:

    “No free man shall ever be debarred the use of arms.” -Thomas Jefferson

  3. Actual, Tucker, that sentence starts with the idea of a militia being necessary. It specifically refers to in the case of forming a militia.

  4. Jarhead1982 says:

    What an idiot, states don’t have rights, they have powers. When in agreeing to join the union that is the United States, the states agreed to abide by the ultimate set of laws in the land, The US Constitution & BOR.

    The 9th amendment clearly allows for the exercise of those states powers on those issues that are not of the issues governed by the US Constitution & BOR.

    The last two important rulings on this issue, Heller & McDonald ruled the states and a city government (federal enclave) had exceeded their authority and infringed upon that right as enumerated in the BOR, grow-up and get over it!

    Then the bending of the intent and context that this slick worded communications expert is entertaining to say the least as he is definitely not a legal law expert, english language expert, much less a thorough reader of Judicial opinions.

    Funny how when you read both judicial rulings, Heller & McDonald, all 9 justices have agreed that is always has, and will be an individual right. The argument for accuracy, that both 5-4 votes were about, was the constitutionality of a gun ban.

    Now as to the second amendment. Why is it, that the anti’s (politest term I can generate this morning) always claim that the militia existed first? I mean after all, no single individual citizen possessed a firearm to feed, or defend themselves or family in times of need. Oh darn, they did, all prior to the forming of any militia. If these individuals did not possess a firearm, and obviously have those individual inherent rights, then please explain how any militia would be formed? Do the rules and laws governing the formation and activities of any of the militias state in any fashion the following.

    “Since the citizens are unarmed, it is the responsibility of the militia to arm the individuals as needed and with standardized weaponry” or something to that point. No they do not.

    Have the militias ever been rescinded by a law or amendment, no they have not so they still exist.

    Then the final problem these antis misconstrue is the militia has never, ever, been defined or mandated with the protection of the individual. In fact the US Supreme Court has ruled 10 separate times the government is not legally liable to protect the individual citizen.

    No, no single militia rules or by-laws infer that the militia existed first, or that the militia existed for the protection of the individual citizen.

    Care to peruse the halls of english literature? Complex sentence structure. A sentence that can and does convey at least one action, supported by another and determining fact. That is called a dependent & independent clause.

    An independent clause is a complete sentence that can be used by itself and convey an action or complete thought. Without this, the meaning and act of the dependent clause can not exist.

    “the right of the People to keep and bear arms shall not be infringed.”

    A dependent clause is not a complete sentence and can not stand by itself.

    “A well regulated militia being necessary to the security of a free State,”

    No matter which way slick willies with words attempt to spin this, the militia does not exist without the individual citizen who comes with their own firearms.

    Then this supposed “expert” deems to flaunt death and shooting numbers, all without supplying the underlying facts which when shown, always make these anti experts look childish and foolish.

    Of those almost 12,000 homicides, a number referenced from several years ago (2008 FBI UCR), the author of this laughable opine forgets to mention the following. That the government in multiple formats and on many occasions, has identified that 80% of the violent crimes in the US, are committed by career criminals/gang members (USDOJ National Gang Threat Assessment annual report 2009). That many police studies, most notable Chicago & NYC show that 76-80% of those who are shot, both shooter and injured were involved in a criminal activity at the time of the shooting, or the shooter had a long violent felony history.

    We guess then that punishing the many who don’t break the law, for the actions of the few, is morally right? Therefore the constitution must allow the people to legally inflict shared punishment on all politicians because if one is found guilty of fraud, all politicians must be punished for the transgressions of the one right?

    Then this so called expert refuses to acknowledge the apparent ineptitude of laws preventing anything. After all the Brady Background check is so effective right? Sorry, a law that when reviewed between two government reports, The USDOJ Background Check & Firearm Transfer annual report 2008, and the USDOJ Survey Firearms use by Felons, performed 1997, published Nov 2001, it is laughable.

    Laughable that in 2008 only 4.48% of felons are inconvenienced from acquiring a firearm from a licensed source, by a law that prosecutes less than 1% (.048% of felons) of those it prevented from buying a firearm from a licensed source. Those licensed sources are retail stores and gun shows, of which gun shows account for .64%.

    By the way, how many lives may the activities of the law have saved? We have the FBI UCR violent crime rates, and we have the 1,500 felons that were prosecuted on a yearly basis. So comparing the rate of murdered by firearms, adjusting to not put all the credit on the 80% of crimes committed by felons, the ratio of injured versus killed by hospital databases per 100k people, we see around 1 person killed and 8 injuries that may have been prevented.

    Ooohhh such scary numbers, all that tens or hundreds of millions of taxpayer dollars spent on the Brady Background Check that may prevent .011% of the result. Yep, the poster child of all gun control laws actually does what, ROTFLMFAO, not much, to felons that is! Funny how we can show actual incidents over the last 3 years showing 550 people saved by the defensive gun uses for those who wail if just one life is saved, it is worth it. So to then we can prove multiple lives were saved.

    But again, these only results or symptoms of the root causes of violence. Just as doctors use symptoms to identify a root cause and treat that root cause of an illness, why do fools like Craig Smith refuse to address the root cause of violence, and only look at the symptoms? It is always one of two things, they are indelibly stupid, or they have an agenda.

  5. Tucker says:

    Yes, Margaret, it does. But if you do not have individual gun rights, you cannot have a militia. A militia is not a militia without guns in the hands of the people. I completely agree with the ammendment when it states that a militia is necessary. We need to be a militia to properly defend our Liberty.
    “A militia, when properly formed, are in fact the people themselves … and include all men capable of bearing arms.”– Senator Richard Henry Lee, 1788.

  6. Outland says:

    Fortunately, we have documented evidence that the framers intention was that all of the people have the right to keep and bear arms without exception.

    James Madison was the principal author of the US Constitution and is often called the “Father of the Constitution”. He was also responsible for the first ten amendments and thus is also known as the “Father of the Bill of Rights”. He should know what the amendment means and clearly stated such on more than one occasion.

    “Americans have the advantage of being armed—which they possess over the people of Europe where the governments are afraid to trust the people with arms.”
    – James Madison 4th president of the United States

    Just one example of many quotes to the affirmative, with none in the negative.

  7. Bookkie says:

    “A militia when properly formed are in fact the people themselves and include all men capable of bearing arms. To preserve liberty it is essential that the whole body of people always possess arms and be taught alike, especially when young, how to use them.” Richard Henry Lee, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights. Additional Letters From the Federal Farmer 53, 1788

    “I ask sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” –George Mason, during Virginia’s ratification convent

    “The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. The unlimited power of the sword is not in the hands of either the federal or the state governments, but where I trust in God it will ever remain, in the hands of the people.” -Pennsylvania Gazette, February 20, 1788

    The People are the Milita, not the National Guard or the Miltary. Each and every one of us is a member of the Milita, even you Dr. Smith. Do you get it now? I doubt it. The only reason that some want to read it differently is that they know they cannot force their beliefs on others if they are properly armed. They know that they cannot repeal the Second Amendment through the legal Amendment process so they have tried to lie about the meaning of the Second. They are afraid to try as they would then have to engage in honest debate. If you’ll notice that every one who advocates the propaganda that Dr. Smith is putting out always try and play the touchy feely card. They also fail to mention that it has been estimated that guns prevent between 800,000 and 4.8 million crimes a year. Most without any shots ever being fired.

    Dr. Smith outright lies when he claims that the 9th Circuit ruled UNANIMOUSLY. Only a three-judge panel ruled. The 9th Circuit’s decision not to hear the case en banc was made over a highly divided court. Judge Pregerson disagreed with the panel as did Judge Kozinski. He fails to mention other cases such as Emerson, where the Judge found that the Second Amendment is an individual right. He also miss-leads everyone since this decision was made in the early 2000’s, a few years before the U.S. Supreme court ruled in either McDonald or Heller. In addtion a good portion of Reinhardt’s opinion relied on evidence provided by anti-gun ‘Historian’ Michael Bellesiles. By the way Bellesiles book that was quoted in the opinion has been proven to be fake. As a result of his blatant fudging the facts in his book, Bellesiles lost the Bancroft prize and was forced to resign from his teaching post at Columbia University.

    Sorry Dr. Smith, but your lies and propaganda won’t work anymore. Maybe the University of Long Beach should consider asking for your resignation. I’m just glad that I never had to take any classes from you.

  8. E Zach Lee-Wright says:

    Wow. Mr. Smith could not be more wrong. For starters states do not have rights. I know that is news to some of you but states have powers, not rights. This is why the amendment applies to people and not states. “The right of the people” is the controlling phrase. Madison protected the state’s ability to raise a militia by insuring the people of the state could be armed. It is a two purpose amendment with an economy of words but The Supreme Court was 9:0 on this issue if you read the decisions of the Heller case from 2008. All nine justices viewed the amendment as a individual, not a collective right. Read the amendment slowly while remembering “states do not have rights” and you just might get it. You may call me E. Zach Lee-Wright

  9. When the Bill of Rights was written, it was a different world. People needed guns to hunt and to protect their homes. The authors had no concept of what the 21 century world would be like.
    The world during the time the Bill of Rights was written was one where the enemy your country was at war with could come marching down your street and right into your home. The guns they knew of were simple and slow. not automatic weapons.
    Kids needed to need to learn about guns in order to survive by hunting
    That is not at all likely in the present world. This is not the age of buckskins and coon caps. We do not need to hunt for food, the enemies of our country are not likely to march down our street, but bomb us from the air, and it is easier and safer to defend our homes with a good security system and a couple of well trained dogs that are kept in the house rather than left alone in the yard.
    I live in one of the “worst” neighborhoods in Long Beach. I will be sixty in September. I do not have a gun nor would I allow one in my home. I have lived in “bad” neighborhoods for 38 years now and nothing bad has happened to me because I know how to live here.
    Most of the shootings in the neighborhood are committed by teenage boys to stole guns from their parents. What this neighborhood needs is better parenting, not more people with guns.
    In present times possessing a gun is unnecessary and more or a danger than a protection. I am more afraid of “good American citizens” with guns than I am of any terrorist. They’re the ones that go nuts and shoot people from towers or shoot up a MacDonald’s.

  10. I forgot to say that militias are no longer necessary. The National Guard is what the militia once was. Militias were a necessity of a society that was more wilderness than civilization and very little law enforcement. Most people lived far away from any kind of military base and the fastest transportation was a horse.
    Now we have the police, the National Guard, and the branches of the military reserve. We have military bases all over the country. We have airplanes and missile launchers.
    A bunch of people standing in the street with handguns are not going to do much to defend this country because ground invasions are not likely to occur until we have pretty much been bombed flat or chemically destroyed. Some hero hiding in the basement with his hoard of guns is not going to save the world.
    That kind of heroism is useless and those who imagine it are pathetic.
    Wake-up and smell the modern world.

  11. Jarhead1982 says:

    Bully for you, you have been lucky, but the numbers are hard to ignore, just as your arrogance that you are right and can tell everyone else they do not have the right to make the choice. You don’t have the proof either to support your claims or statements, therefore you are full of shiite!

    Two big dogs, lol, hope the PETA people don’t ban your protection in the near future or some little hoodlum does what I know they have done, get rid of your dogs. It is real easy, slip some antifreeze, manufacturing mercury, meth or PCP into some ground burger and toss chunks to your dogs.

    By the way, how is it that the US SUpreme Court has ruled ten separate times that the government is not legally liable to protect the individual, and where the best police response times are 4 minutes, on average 15-20 minutes.

    I have been lucky, lived in nice neighborhoods all my life. Funny how twice in those “nice” neighborhoods, burglars attempted to break in while we were at home. Once when normally my 5’1″ 100lb mother would have been all by herself, I came home during lunch break to find a 6’2″ 300lb burglar attempting to break in, and unless I had been there, he would have done so.

    Funny how I somehow managed to not put the additional 2 pounds of pressure onto the trigger and blow his head off. Then again, like many of the 30-35 million retired military personnel in the US today, my skill set of control with firearms hasn’t diminished and frankly I am a better handler of firearms than most police today. Funny how we found out later he (the attempted burglar) had a lengthy violent assault record yet you can prove he wouldn’t have done any harm to my mother eh little lady?

    Two other times, prevented an attack when at the mall and out, and sweety, lets make this plain and simple, I was a qualified expert in combat tactics and maneuver and know by heart and instinct when I am being set-up by an encirclement.

    Just as you claim your one persons experience is sufficient to carte blanche ban firearms and ban self defense, so to is my example and all the others listed on these following web sites carte blanche reason to keep and bear firearms.

    Keep & Bear Arms
    The Armed Citizen
    American Rifleman

    You will see over 80 instances a month of successful defensive gun uses, and over the last three years over 550 people saved by such action.

    The best you can reference is a VPC report in 2009 that claimed 137 people had been killed over a three year time frame by people licensed to carry concealed. Of course the anti gunners sponsoring the report didn’t provide any details on the shootings, such as was it in self defense, etc, etc as sweety, those details are what put the incident in proper perspective and prevents people like you from portraying the intended victim as a criminal.

    Hey maybe we can portray a real risk to public health, a doctor. Doctors per a JAMA report kill 44k-98k people a year or 132k-294k every three years to be a 14,000 to 31,000 times more likely to kill you than a person licensed to carry a concealed pistol. Guess we should ban doctors eh?

    The of course we find out from the government reports, USDOJ National Gang Threat Assessment annual report 2009 that 80% of all violent crime in the US is attributable to career criminals/ gang members. Then of course we have the multiple police studies, Chicago & NYC for example. They report that 76-80% of shootings, are where both shooter and injured were both involved in criminal activity at the time of the shooting, or that the shooter had along violent felony record.

    You are afraid based on your own inherent fears, or due to the main stream medias demonization and lies pertaining to whom is responsible for 80% of the deaths in the US by firearms related homicides?

    After all, it does appear that you may be in the throes of a mental illness. Most people who are ill mentally, don’t realize they are ill. In your case you apparently believe an inanimate object like a gun has supernatural powers to load, decide, aim, and pull the trigger by itself. This is a classic symptom of a mental illness called “Fetishism”. Advanced stages of this illness are classic in that a person believes they hear from an object or nothingness, voices or telepathic mind control where the person is forced and commanded just by being near an inanimate object (a gun) are automatically forced to obey and commit a violent crime. This classic symptom is what a “Schizophrenic” claims, Schizophrenia is a well documented mental illness that has indeed been proven to be a public health risk and any who believe an inanimate object has this ability to command a person in near proximity, should seek mental medical help as soon as possible for everyones sake.

    I can keep going on pointing out actual government data to prove the pro gun position, but all you will use is your empathy, emotions, and no facts or data to support your position and sweety, claims and reports from the anti gun crowd, proven to use any lie they can to further their goal, is NOT irrefutable proof.

    Then again, we really do not have to worry, as the leaders of the anti gun movement have proven every single time that they will not attempt to refute actual facts and data. Why you say, well it is easy, this is classic activism 101 Saul Alinsky style. To acknowledge a fact exists, forces the group attempting to portray another side of the issue to incorporate it into the discussion. So we don’t really expect you Margaret to reply with actual facts and data as it would destroy your pathetic position.

  12. Jarhead1982 says:

    Oh and one thing you apparently don’t know anything about research on laws. Because lady, the unorganized militia has not been replaced or repealed by any state or federal constitutional change or law.

    Then again we see what a military expert you are not.

    Vietnam didn’t happen for the US, Afghanistan didn’t happen for Russia and history doesn’t show the 20% of countries where the rebel element has indeed won the war.

    Then again you did consider that today those technologically inferior Taliban & Al Quaeda people have all been killed and don’t exist almost 9 years after the fight began eh?

    You don’t consider that of the 3 million US military personnel that 2/3 rds are support personnel and that they are spread all over the globe in the 5 branches of the military. What would be the result of a massive withdrawal of US forces on all their peacekeeping duties and presence in the world eh? What happens in a power vacuum, oh thats right, chaos.

    But since the US citizens are oh so appalled by collateral damage in other countries, what perchance would be their reaction to have it occur here in the US eh? This alone would destroy any though of the US military using overwhelming technology and the associated firepower that goes with it.

    Then of course you are assuming that no group of soldiers or police would openly defect to the rebels side with their weapons and skills, along with the 30-35 million retired military personnel already in the civilian population eh?

    My, my, you are counting on 1 million troops of which how many will fire upon their own people, to defeat 50 million plus gun owners, spread out over 51 states. Where the goobernment will patrol and maintain strict border travel, just like they have accomplished when preventing drugs from crossing the Mexico border eh?

    We always see other countries more than willing to smuggle arms and aid to the forces opposing the US and this wouldn’t happen in such a situation because you say so, ROTFLMFAO, how naieve.

    Then again, you believing that only the government has a list is rather naieve of you. Lets see, 50 million gun owners and how many politicians and their supporters that created such a civil war, oh maybe 5,000. So yeah, reality is, how many of those 5,000 will get taken out before they change their position and or surrender eh?

    You have no freaking clue as to what is or isn’t militarily capable were such an occurrence to happen so your opinion on that matter don’t mean one darn thing.

    You cant pick and choose the rights to keep in the BOR, either accept them all or none at all.