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By Roz Rogoff

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About this blog: In January 2002 I started writing my own online "newspaper" titled "The San Ramon Observer." I reported on City Council meetings and other happenings in San Ramon. I tried to be objective in my coverage of meetings and events, and...  (More)

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Obama's Executive Order on Gun Control

Uploaded: Feb 7, 2016
The political debates are underway, and so far I haven't heard much said about the Second Amendment. Some Republicans have attacked President Obama for his new Executive Order on gun control. What does it do and does it violate citizens' Constitutional rights guaranteed in the Second Amendment?

That depends on what the rights guaranteed in the Second Amendment are. What was the purpose of the Second Amendment? Was it to make sure every American has the right to own an arsenal? Does that even make sense at a time when the only weapons in existence were swords, bayonets, cannons, and black powder muskets?

In 1791, when the first ten amendments to the Constitution were ratified by the original states, there were no six guns or repeater rifles. These were 30 years or more in the future. There were cannons and muskets, which took from one to five minutes to load. Really!

The photo below shows the kind of weapons used in the 18th Century. It is taken from the website of a company that makes gunpowder for antique rifles.



The Bill of Rights was not directed at individuals. It was to persuade the Colonies to join into a union instead of becoming separate countries. The concern in the Colonies was to keep their separateness and not be taken over by a central government as was already the case with England. They agreed to a Federal Government as long as it was weak and would not take away their individuality.

The Bill of Rights was more of a State's Rights document than for Individual Rights since most residents – women, slaves, Indians, immigrants, renters, tenants, and those without property – had no rights anyway. Ah those "good old days," when wealthy White Men ruled and everyone else was subservient.

The Second Amendment contains two clauses, the second of which may or may not depend on the first but almost certainly does.

"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."

What that says to me is that states can establish their own Militias, and the members of State Militias have a right to be armed. It doesn't mean all citizens of the union of states have a right to be armed.

Also since we know that the arms available at that time are nowhere near what are available now, the Second Amendment only refers to the primitive arms that existed in 1791. If James Madison, the author of the Bill of Rights, and the representatives from each state that signed it, could have imagined the kind of arms that are available today, they would have certainly put additional restrictions on what individual citizens have a right to own.

So we come back to the question ask at the top. Does Obama's Executive Order violate the Second Amendment? No, because it is still left to the individual states to enforce their interpretation of Militias, but additional Federal supervision is provided. It's a little like sending your 18 year old "adult" to college, but sending a bodyguard along to keep him/her out of trouble.
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Comments

 +   5 people like this
Posted by Joe Potosky, a resident of another community,
on Feb 7, 2016 at 6:24 pm

Gun control is not crime control. Pass mandatory criminal control!

Step one.

If charged with having/using a firearm unlawfully....

No reduced bail, Subject to an automatic dangerousness hearing, No plea bargains, No reduced sentences, No early release from prison, and minimum state sentencing laws for crimes committed with a firearm.

No need for step two.


 +   8 people like this
Posted by DKHSK, a resident of Bridle Creek,
on Feb 7, 2016 at 10:05 pm

DKHSK is a registered user.

"...the right of the PEOPLE to keep and bear Arms, shall not be infringed."

Misunderstanding punctuation and grammar is no excuse to grab guns from law-abiding citizens. Emphasis on law-abiding and citizens.

The Supreme Court has ruled on this amendment a number of times and the outcome is always the same.

I will say that I am coming around to changing the law regarding the gun show loop-hole. Why is it that we all have to register our cars, but private sales of guns are not required to be registered? I understand that to register a gun you have to pay various fees but so what, you have to do the same for a car!

Dan


 +   4 people like this
Posted by mooseturd, a resident of Pleasanton Valley,
on Feb 8, 2016 at 9:23 am

mooseturd is a registered user.

Roz, Your blog is about as effective as Obama's Executive Order.


 +   6 people like this
Posted by FrequentWalkerMiles, a resident of Another Pleasanton neighborhood,
on Feb 8, 2016 at 12:16 pm

FrequentWalkerMiles is a registered user.

If the author of this blog is correct, then the freedom of speech and press on the World Wide Web is not guaranteed since we didn't have the Internet in 1791. Bring on the censors!


 +   5 people like this
Posted by Michael Austin, a resident of Pleasanton Meadows,
on Feb 8, 2016 at 7:27 pm

Michael Austin is a registered user.

Roz, Nice blog. The weapons of today AK47 or what ever they are called and other similar type guns are designed to kill people, and are guns that fools own.

Fools that own AK47 probably never hunted game in their life time. Reading your blog I remembered my childhood experiences hunting game.

We used traps along jack rabbit trails. The traps consisted of a twine wet with our spit, rounded into a loop, and frozen in the cold winter air, secured to a tree root on the far end. When A jack rabbit came along through the loop, it was immediately caught.

Another method we used when walking though fields of tall grass was slings and sling shot. We put several sharpened stones in our slings. When A pheasant was spooked out, we let loose with our slings and those with sling shot on their wrist let loose also. We were very successful hunters in our youth. We cooked and eat all the wild game we hunted.


 +   1 person likes this
Posted by rosalindr, a resident of San Ramon,
on Feb 12, 2016 at 2:03 am

rosalindr is a registered user.

Mooseturd,

You are correct. Obama's Executive Order has no effect whatsoever. What is does or doesn't do is explained in the link in paragraph 1 under "Executive Order on Gun Control."

My blogs are purely for my opinions as your comments are for yours. Since Obama's Executive Order has no effect, my blog simply explains that. Your comment has no effect either, and is about as useful as your screen name.

Roz


 +   2 people like this
Posted by rosalindr, a resident of San Ramon,
on Feb 12, 2016 at 2:08 am

rosalindr is a registered user.

FrequentWalkerMiles,

The Supreme Court has kept up with modernizing the interpretation of the First Amendment. The Internet, and even political donations, are now included in the definition of "Free Speech."

Roz


 +   1 person likes this
Posted by FrequentWalkerMiles, a resident of Another Pleasanton neighborhood,
on Feb 12, 2016 at 12:05 pm

FrequentWalkerMiles is a registered user.

I'm glad you mentioned that. Then per your own words

"Also since we know that the arms available at that time are nowhere near what are available now, the Second Amendment only refers to the primitive arms that existed in 1791. If James Madison, the author of the Bill of Rights, and the representatives from each state that signed it, could have imagined the kind of arms that are available today, they would have certainly put additional restrictions on what individual citizens have a right to own. "

Replace "arms" with "vessels of communication" and see how that sounds.




 +  Like this comment
Posted by DKHSK, a resident of Bridle Creek,
on Feb 12, 2016 at 4:01 pm

DKHSK is a registered user.

Good point, FWM.


 +  Like this comment
Posted by rosalindr, a resident of San Ramon,
on Feb 13, 2016 at 4:09 am

rosalindr is a registered user.

Frequent Walker,

You still don't get it. You are trying to mix the Second Amendment into the First Amendment.

The 1st Amendment guarantees individuals freedom of speech and religion. Freedom of speech is an individual right which the Supreme Court recently extended to corporations.

The 2nd Amendment focused on each State's rights to form their own militias and arm their citizens. Therefore each state sets its own laws about what "arms" citizens have a right to own. The Federal Government does not.


Roz


 +   1 person likes this
Posted by rosalindr, a resident of San Ramon,
on Feb 13, 2016 at 4:44 am

rosalindr is a registered user.

Dan,

"Misunderstanding punctuation and grammar is no excuse to grab guns from law-abiding citizens. Emphasis on law-abiding and citizens." The only thing I misunderstand is where the heck you came up with this.

Where do I say anything about grabbing guns from anyone? It seems to me you are the one "Misunderstanding punctuation and grammar."

There has been considerable debate over what the 2nd Amendment grants to states vs. individuals. The Supreme Court in a 5 to 4 Decision in 2008 held "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

The dissenting four Justices had different interpretations.

1. that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended
2. that the "militia" preamble demands the conclusion that the Second Amendment touches on state militia service only
3. that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis
4. and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.

So the majority, 5 Justices, interpreted the 2nd Amendment as an Individual Right. The dissenting 4 Justices, interpreted it as applying to State militias. My blog supports their #2 reason which I did not know in advance. I think I'm in good company here, even if it is on the losing side.

Roz


 +   1 person likes this
Posted by DKHSK, a resident of Bridle Creek,
on Feb 13, 2016 at 10:00 am

DKHSK is a registered user.

Roz,

When you say "It doesn't mean all citizens of the union of states have a right to be armed.", is why I noted about punctuation and grammar.

That the 2nd mentions "people" instead of citizens does not negate my point. EVERYONE can legally own firearms unless they are a felon.

"The dissenting four Justices had different interpretations. "

You're right, but another way of looking at this would be to say that the 5 supporting Justices read the text and correctly interpreted the word "people" as anyone else would. Let me type that again:

"...the right of the people..."

Looks and sounds pretty definitive to me.

As Democrats are so fond of saying: " This is settled law".


 +  Like this comment
Posted by BobB, a resident of Another Pleasanton neighborhood,
on Feb 13, 2016 at 11:52 am

BobB is a registered user.

I think I agree in disagree with both DKHSK and rosalindr. The language of the amendment does seem to be out of date because the vast majority of people today agree that people are legally permitted to posses only some categories of arms. You can own a rifle, shotgun, or handgun, but not a Howitzer or tactical nuclear missile (for example). In other words the right of the people to keep and bear Arms needs to be infringed, for all our safety.

That really doesn't fit with "...the right of the people to keep and bear Arms, shall not be infringed." But you didn't have nuclear, chemical, or biological arms, or even modern artillery when the constitution was written, so a broad interpretation of the second amendment worked in those days, but not today.

I think it probably is time to revisit the language of this and some of the other amendments. I hope we have the courage as a society to do it.


 +  Like this comment
Posted by rosalindr, a resident of San Ramon,
on Feb 13, 2016 at 4:18 pm

rosalindr is a registered user.

BobB,

Thank you for the wise comment. I tried to say that, but there are some posters who will defend the "People's right to bare arms" no matter what.

Roz


 +  Like this comment
Posted by rosalindr, a resident of San Ramon,
on Feb 13, 2016 at 4:27 pm

rosalindr is a registered user.

Shocking death of Supreme Court Justice Antonin Scalia Web Link

This gives President Obama another chance to appoint a Supreme Court Justice. The Republican debate is coming up in 90 minutes. I'm sure this will be added to the questions.

Scalia was one of the 5 Justices who voted with the majority on the meaning of the Second Amendment. A new Obama appointee could swing the interpretation in the other direction.

My condolences to Justice Scalia's family. I didn't always agree with his decisions, but he was a good man. May he RIP.

Roz




 +  Like this comment
Posted by DKHSK, a resident of Bridle Creek,
on Feb 13, 2016 at 6:25 pm

DKHSK is a registered user.

BobB,

The definition of "arms" has already been settled and excludes howitzers, bombs and, uh, nuclear weapons.

Try again.

Roz,

Mitch McConnell has already said there will be no vote on a replacement for Antonin Scalia until after the next Presidential election, thankfully.

Tonights debate should be very interesting.


 +   1 person likes this
Posted by SHale99, a resident of another community,
on Feb 14, 2016 at 8:29 am

SHale99 is a registered user.

Bottom line nobody 'needs' a fully automatic (spray and pray) rifle or handgun to 'hunt' or 'defend' their home.
Also, if I have to go through a background check to be on the school premise or my son's class I don't think it is too much trouble for one to be required to own a weapon.

I mean REALLY.

Shale


 +  Like this comment
Posted by DKHSK, a resident of Bridle Creek,
on Feb 14, 2016 at 9:30 am

DKHSK is a registered user.

SHale99,

Fully automatic rifles/hand guns are already illegal to own, and to the best of my knowledge that's not even being challenged by anyone.


 +  Like this comment
Posted by BobB, a resident of Another Pleasanton neighborhood,
on Feb 14, 2016 at 6:43 pm

BobB is a registered user.

"...definition of "arms" has already been settled and excludes howitzers"

Settled by whom? If the definition or "arms" has to be some special definition applied only to the second amendment, then the problem is with the amendment, not the definition or the word.

Web Link

"Weapons and ammunition; armaments:"

They didn't call it them the "Strategic Arms Limitation Talks" because they were talking about shotguns and revolvers. They were talking about nuclear weapons.

Web Link


 +  Like this comment
Posted by SHale99, a resident of another community,
on Feb 14, 2016 at 7:07 pm

SHale99 is a registered user.

DKHSK: er, ah, um. A semi-automatic anything converts to fully auto with not much effort. NOBODY even needs a semi-automatic to hunt or defend their home.
All for deep background checks and no guns for any felony convicted 'people'.
No rights being trampled on here.

Shale


 +  Like this comment
Posted by DKHSK, a resident of Bridle Creek,
on Feb 14, 2016 at 8:14 pm

DKHSK is a registered user.

BobB,

Legal definition of "arms": Web Link

Get with it.

I almost feel as if you're punking me because your response was so juvenile I can hardly believe it comes from somebody who's had in the past some semi-intelligent things to say, but really, the SALT treaty as an example to change the 2nd Amendment? LOL!

And SHale, modifying ANY firearm to be fully automatic is ALREADY AGAINST THE LAW. Making it explicit in the constitution does exactly...nothing.

And please don't go to that canard regarding "semi-automatic" firearms and hunting, you obviously have no idea what the term even means and you OBVIOUSLY have never been hunting.

Sincerely.




 +  Like this comment
Posted by SHale99, a resident of another community,
on Feb 15, 2016 at 8:09 am

SHale99 is a registered user.

DKHSK: Mehthinks you need to google around to see just WHAT type of firearms are legal and what they do. AND how far the NRA jumps each time they feel threatened.

PLus, the NRA kinda goes bonkers if ANY additional 'models' of firearms are added to the 'no no list". Clear example of a group with too much mouth.

Bottom line (again) no rights w/held if close scrutiny and waiting times applied to firearm purchases.

clear fact is too many people have guns. And for the wrong reasons.Much like IQ challenged folks who get a big dog for 'protection'. All dogs bark!

Shale


 +  Like this comment
Posted by DKHSK, a resident of Bridle Creek,
on Feb 15, 2016 at 8:19 am

DKHSK is a registered user.

SHale99,

Blah blah blah, NRA, blah blah blah...We have the 2nd, it's passed Supreme Court muster, deal with it.

I don't need to do any googling, I've already handed you your lunch.

Now eat it :)

Buhbye.


 +  Like this comment
Posted by BobB, a resident of Another Pleasanton neighborhood,
on Feb 15, 2016 at 12:07 pm

BobB is a registered user.

@DKHSK,

That was the point I was trying to make. One "legal" definition of "arms" whose purpose is to interpret the second amendment, and one standard dictionary definition for all other purposes. I'll admit plenty of people don't have any kind of problem with this.

But then I think the first amendment could have been worded better too. (I know I'm in the minority there also). Incidentally, I was in DC on business in December and took some time to visit the National Archives -- something I'd recommend to anyone if they have the chance. It was great to see the original documents, though they look quite faded and hard to read now. But even more interesting was to see some of the rough drafts of the bill of rights. I thought some of the early wordings worked better than the final ones, but that would be a long discussion.


 +  Like this comment
Posted by DKHSK, a resident of Bridle Creek,
on Feb 15, 2016 at 2:58 pm

DKHSK is a registered user.

BobB,

I understand that you can say 'I wish we could have done "X" better' but that is just what we've done through the courts many times over, on all different kinds of arcs. The results are what they are.

Heck, I wish we had term limits for congress in the Constitution so that we'd get rid of these so-called professional politicians like the charlatan McCain of Arizona, or the idiot Schumer of New York. These dinosaurs stay in for 30 years and are as corrupt as they are inept.

We don't always get what we want.


 +   1 person likes this
Posted by rosalindr, a resident of San Ramon,
on Feb 15, 2016 at 11:26 pm

rosalindr is a registered user.

DKHSK & BobB,

The way to get term limits in the Constitution is to add an Amendment. It would have to be approved by 2/3 of the states, but if enough voters want it, it could be done.

Roz


 +  Like this comment
Posted by FrequentWalkerMiles, a resident of Another Pleasanton neighborhood,
on Feb 17, 2016 at 10:41 am

FrequentWalkerMiles is a registered user.

Rosalindr,

"Therefore each state sets its own laws about what "arms" citizens have a right to own. The Federal Government does not. "

If you are right, then we need to nullify all federal gun laws since by your interpretation only States can make such laws.

In addition, as far as I know the only real "militias" allowed in California are the likes of the Army/Air National Guard, which can be, and has been frequently put under the jurisdiction of the DoD. There is a CA state military reserve, but I believe under the United States Code, it is also technically subject to federal activation, so your suggestion that the 2nd Amendment only applies to states maintaining their own militias without federal involvement is blantantly ignored in California.


 +  Like this comment
Posted by Michael Austin, a resident of Pleasanton Meadows,
on Feb 17, 2016 at 7:18 pm

Michael Austin is a registered user.

There are the unofficial, not main stream militias in California and else where that are active, or deactivated by law enforcement.

A couple of militias that come to mind, Symbionese Liberation Army (SLA), Black Panthers.

The group in Oregon that took over the preserve. Other self anointed groups remain active.

The guy in Texas, that AG Janet Reno fumbled.


 +  Like this comment
Posted by rosalindr, a resident of San Ramon,
on Feb 17, 2016 at 10:54 pm

rosalindr is a registered user.

FWM,

I'm not a Constitutional scholar. I'm just a blogger with an opinion. My interpretation is what I believe James Madison intended, but since I can't ask him it is still just an opinion.

I interpret the Bill of Rights, including the Second Amendment, as rights granted primarily to each individual state and from each state to its citizens.

However, remember that Congress is made up of Representatives and Senators from each state. So if they vote for a national gun law, that law is approved by each state by proxy.

Roz


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