Posts Tagged ‘Law’


The Reasoning Behind the Second Amendment

February 22, 2011

A lack of understanding our national history leads to erroneous debate surrounding the Second Amendment to the Constitution of the United States.  Only by pealing back time does the correct view of its meaning take place.  Regardless of how loudly either side in the argument (gun ownership rights vs. banning guns all together) screams, the Second Amendment’s meaning is what it was back in 1791, when the States ratified the Bill of Rights.

Without question, the twenty-seven words of the Second Amendment are some of the most debated in American History.  In retrospect, one may wonder why our Founding Fathers constructed an amendment with such an ambiguous meaning, but that is the point – it is not ambiguous.  The text of the amendment reads, “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.[1]”  In reading the amendment, if taken in the context of 1791, its meaning is clear.

Starting at the beginning, in May of 1607, England established its first permanent settlement in North America, Jamestown[2].  From then until February 1912, with the statehood of Arizona, the colonies and Untied States, as a nation, had frontier territory contained within its boarders.  Taking Alaska and Hawaii into account, the date moves to 1959.   The term frontier implies a certain wildness and untamed nature.  Even after statehood, vast areas within newly formed states remained untamed for years.

Since Jamestown, and through the implementation of Manifest Destiny, the areas of America’s frontier changed, changing the needs of the citizens along with it.  For instance, 1881 Washington, DC has more in common with today’s metropolitan areas than it did with the Western frontier town of Fort Sumner, New Mexico of its day.  Two notable killings took place that year, one carried out by a county sheriff and his posse (a type of temporary militia used at the county and town level) the other,carried out by a lone gunman.

The sheriff’s situation is well-known.  He was Pat Garrett and his posse (the number of men in posse is hotly debated) hunted down Billy the Kid in Fort Sumner[3].  Washington’s lone gunman has less notoriety, his name: Charles Guiteau.  Guiteau surrendered to Washington police who arrested him for the assassination of President James Garfield[4].  The point is, in the West, militias (posses) were commonly employed to answer specific needs while Washington counted on a police force.  As settled areas become stable, and communities grow, the dangers faced by its citizens change.  In Washington the need for a ready response of arms was no longer required, while in Fort Sumner existence itself depended on it.

In respect to the Second Amendment, it is the dangerous nature of frontier land, which promoted the need of local militia.  As settlements grew, displaced groups, like Native American, took exception to loosing land they lived on for years, if not centuries.  Moreover, settlers gave little notice to treaties with tribal governments or boundaries of native lands, making hostilities inevitable.

Before the American Revolution, the overall duty to protect citizens fell to the British Army.  The size of the colonies made protection impossible.  With its vast territory and over 3,000 miles distance from England, the American Colonies presented the British Army with a very large logistics problem.  The Army’s primary concern was holding off encroachment of other nations, like France and Spain, into areas England claimed.  This left far-flung settlements at the mercy of angry Native-Americans, as well as raiding parties of the other nations.  Raising local militia solved the immediate assistance issue.

At the outbreak of hostilities, a settlement’s government called out their militia.  The unit was expected to meet the particular event and resolve it, or at least hold out until regular army troops arrived.  It was a system of mutual benefit to the Crown Government as well as the colonists.

The most famous militia organization was the Massachusetts Minutemen.  The romantic view of this militia is farmers grabbing their guns and running to fight when called upon by the likes of Paul Revere.  In truth, the Minutemen were a formal militia unit given a charter by the Massachusetts Provencal Congress in 1774[5].  Every community supplied men for their local militia similar to the Minutemen, but all were under the control of some sort of civilian authority and not a rabble with bad intent.

Some of the same militia units employed in support of regular British Army units before the American Revolution, later supported, if not enrolled in whole in the Continental Army under General George Washington.  In fact, General Washington’s first experience in military affairs was as adjutant in charge of Virginia’s Southern District Militia.  In this role, Washington inspected, mustered, and regulated the various companies of men.  He later led Virginia’s Militia into the Ohio River region and briefly fought regular French troops and their Algonquin allies in the engagement that began the French-Indian War[6].

After America’s independence from Great Britain, the new federal army faced the same logistical issues suffered by the British before them.  Again, local militias formed to meet the need.  Again, the various governments authorized and organized militia under local authority.

One such organized unit was the First Regiment of the Chatham County Mailias, which served the Savannah, Georgia region.  Shortly after the war in 1786, a group of runaway slaves, which fought with the British “refused to return to the service of their owners,” as a history of the time put it[7].  No right-minded person could possible blame them.  This group marauded and waylaid traffic along the Savannah River.  Numbering over thee-hundred armed men, they were more than the normal civil authority (the county sheriff) could remotely handle.  The First Regiment Militia, assisting regular army troops stationed at Beaufort, SC. routed the men from their encampment in the swamps along Bear Creek and restored order.  As a side note, any society that chooses to enslave a large portion of its population is well advised to keep a sizable militia handy.

In the end, during our initial development as a nation, individual states required the militia to maintain order.  Rather than a position of sinecure, militia served, earned their pay (or received no pay at all) and often died in the process.  It was left to the federal government to maintain a national army and to the states to maintain a self-policing force the national army called upon from time to time.  That is what the Second Amendment is about, the ability of the individual states to maintain civil order and assist in national times of need.  Standing armies are costly.  Avoiding that level of public debt, states organized militia groups.

While gun advocates point to the Second Amendment and claim the right of gun ownership, the Amendment does not interfere with each individual state’s ability to regulate the practice.  In truth, it does not even require a state to allow gun ownership.  It simply prevents the federal government from outlawing it.  Unlike the First Amendment, the Second does not enumerate several different rights; it limits the authority of the federal government to interfere with individual states and citizens protecting themselves.

One reason militia worked before and not now – the large variety of weapons available.  Until the time of the Civil War, a man with a musket only needed a few pieces of flint, some bulk lead, and a supply of gunpowder.  With the limited caliber of muskets, casting of balls was a simple process handled in the field camp; many men carried their own casts simplifying matters further.  With the invention of cartridge style ammunition, supplies of pre-manufactured bullets for each type of weapon are required.  Imagine the supply chain nightmare of supporting a unit in the field with a dozen or so different cartridges.  Simply put, no longer can a government expect to supply ammunition to citizens bringing their own weapon to a fight; the variety is overwhelming.

Today, the National Guard takes on the role the militias filled in years past.  They are a hybrid of militia groups and a standing army.  Fringe survivalist groups claim some tie-in to our historic militia groups, but they lack the charter and civil oversight to operate in the public interest.  In the end, they are a bunch of guys with guns that challenge the civil authority, not work to protect the population at large.  Mostly, the need to call men at a moments notice to man the parapets is gone.  Organized militias, as intended by the Second Amendment, are simply of no practical use today.

It is easy to get caught up in the rhetoric of organizations like the National Rifle Association and its focus on the later half of the amendment, the “right of the people to keep and bear Arms, shall not be infringed” portion.  What they fail to acknowledge is the role the states play or the “A well regulated Militia, being necessary to the security of a free State” portion.  Of course, the gun control fanatics are just as far off point, as the amendment does afford citizens the right to own a gun at the federal level and a state walks a fine line when they attempt to limit that right.

What both groups fail to understand is we do not live in 1791 anymore nor is our society some utopia where we sit around a campfire and sing Kumbayah.  Guns and gun related violence exist in our society today.  It is true statement that outlawing citizens from owning guns leaves only the criminals with gun.  It is equally true that improvements in firearm technology places in the hands of one individual the means to rapidly murder dozens of citizens.  The tragic events at Virginia Tech come to mind[8].

The Founding Fathers never intended our Constitution and the Bill of Rights to be static.  After two-hundred and twenty years of development, both in society and technology, it is about time we revisit the Second Amendment and modify it to reflect the times today.  Outlawing gun ownership is not any sort of answer, just as it’s not an answer to allow any nut with a diver’s license to own a bazooka.  What we really need is to address the issue respecting various points of view and craft a new amendment that will serve the United States over the next two-hundred and twenty years.

Follow Up Reading:

Here is another blog post expanding on the issues of rights and gun control: Guns, Driving and Our Rights


[1] “The Constitution of the United States of America,” Amendment 2. GPO Access Home Page. Web. 22 Feb. 2011. <>.

[2] “Jamestown Settlement.” Official Jamestown Settlement & Yorktown Victory Center Visitor’s Site. Web. 22 Feb. 2011. <>.

[3] “Billy the Kid.” Wikipedia, the Free Encyclopedia. Web. 22 Feb. 2011. <>.

[4] “Charles J. Guiteau.” Wikipedia, the Free Encyclopedia. Web. 22 Feb. 2011. <>.

[5] Microsoft Encarta Encyclopedia Standard: 2004, Redmond, WA: Microsoft Corporation.

[6] “The French and Indian War.” Antique Prints And Maps From The Philadelphia Print Shop. Web. 22 Feb. 2011. <>.

[7] Charles Jones, Jr. The Life and Services of the Honorable Maj. Gen. Samuel Elbert (Cambridge: The Riverside Press, 1887), SUPPLAMENTAL NOTES, 47.

[8] June, Early. “Virginia Tech Massacre.” Wikipedia, the Free Encyclopedia. Web. 22 Feb. 2011.  <>.


Illegal Immigration: Checkpoint Charlie Will Not Solve the Problem

May 7, 2010

The recent action by the state of Arizona has returned the issue of people coming to America illegally to the international spotlight.  President Calderón of Mexico is critical of the law in a very public way, even calling it a “violation of human rights[i].”  Without delving in to the particular motivation of Arizona, it is clear that inaction by the federal government is leading us to a patchwork of laws regarding a subject that needs a national consensus.  For purely political motives, the federal government refuses to effectively deal with the issue resulting in harm to the citizens of the United States as well as people here illegally.

The problem for both the congress and the administration is perception.  On the one hand, too tough a law is seen as racist; on the other, too little intervention is seen as not protecting the national border.  In reality, it seems the public is truly concerned about one border, the one between the U.S. and  Mexico.  The northern border with Canada hardly receives national media attention, though it is almost three times as long.  The U.S. – Canada border is 5,526 miles in length while the U.S. Mexico border measures 1,952 miles.[ii] That illustrates it is not the border itself that creates a problem but its being crossed illegally.

There are two basic approaches to ending people coming to the United States illegally,

  1. Protect the boarders to prevent illegal entry.
  2. Remove the reason people enter illegally.

Returning to the political reality politicians face, to address the first approach requires building a national barricade and patrolling the border, much like the East Germans attempted with the Berlin Wall during the Cold War.  The image of our borders dominated by Cold War style “Checkpoint Charlies[iii]” is not the image most politicians wish to give the world, though that is quickly becoming the norm. What is next, will Arizona have neighborhood checkpoints and ask everyone for their documents?  In other words, welcome to the Police States of America.

Figure 1 Checkpoint Charlie[iv]

Addressing the second approach requires understanding why people enter the United States illegally.  While there are many reasons, one dominates all others – work.  Slanted media coverage focuses on issues that inflames fear and promotes stereotypical prejudiced beliefs while minimizing employment as the prime motive.  In doing so, the politician has no political upside in addressing work as the true motive and faces many downsides.  One of the biggest downsides being people working in the United States illegally provides a cheap labor force for employers.  Taking that labor force away will drive wage costs up in employment areas like farming and food processing plants, which employ people here illegally on an industrial scale.  Still, that is exactly what needs to be addressed and does not require the extreme measures of making “Fort America” out of our home.

Regardless of the defensive systems we install, people will get past them.  People enter the United States illegally from all parts of the planet and in all sorts of ways.  Looking at the border with Mexico only addresses the means of egress and not the motives behind the entry.  Rather than pass a law that requires the police to engage in practices that are bound to create civil rights issues, a sensible course of action is to require all employers to verify employment status and penalize them when they do not in a way that removes the incentive for hiring people not here legally.

We face many problems that are not easily solved.  This is not one of them.  The solution is simple and cost-effective.  All it requires is political leadership and that is where it fails.  Rather than accepting the reality of needing the labor force people here illegally provide and giving them a legal option, our political leaders simply kick the can down the road for our children to deal with.  To put it bluntly, anyone with an entrenched position that refuses to compromise is part of the problem and prevents a solution.

The law passed in Arizona seems to take a “just get rid of them” approach.  Expanding that to a national level would mean the removal of a little fewer than twelve million people[v] from the United States.  The cost and logistics of such a move is staggering.  By the very nature of the individuals being undocumented, how would we prove them to be citizens of a particular country to return them to?  It is not as if a country will allow us to dump them on their doorstep because we do not want them.  A better solution is to punish the ones giving the incentive in the first place and then develop a system that allows people to work here legally.  Why do we need to send them home first?  It is more cost-effective to document them where they are and move on.

It is often stated that it is unfair to people who followed the rules to allow the people here illegally to simply get in line for citizenship.  It rewards illegal behavior.  That is not true as there is no need to grant them citizenship at all.  Instead, we grant them foreign worker status, collect taxes, and move on to the next problem.  If they wish to become citizens, let them use the process in place now, if not they can simply work until they wish to return to their home countries. We can thank them for their hard work and they can thank us for the opportunity to earn some money to support their families back home.

Accepting that Arizona’s only wishes to address valid issues surrounding people entering the country illegally, Washington’s inability to take action is the root problem that drives the issue.  We need to remove the politics and just deal with the problem.  Then Mexico can start dealing with its own problem of not providing for its citizens to the point they seek to enter the United States illegally, President Calderón – that is the true human rights violation you need to address.

[i] Booth, William. “Mexican Officials Condemn Arizona’s Tough New Immigration Law.” – Nation, World, Technology and Washington Area News and Headlines. Web. 07 May 2010. <;.

[ii] Length of United States Border with Mexico. Wolfram|Alpha. Wolfram Alpha LLC. Web. <;.

[iii] 1950s, The Early. “Checkpoint Charlie.” Wikipedia, the Free Encyclopedia. Web. 07 May 2010. <;.

[iv] Mellmann, Helga T.H. A View of Checkpoint Charlie, the Crossing Point for Foreigners Who Are Visiting East Berlin. 1977. Photograph. DefenseImagery. United States Department of Defense. Web. 7 May 2010.

[v] United States of America. Department of Homeland Security. Office of Immigration Statistics. Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008. By Michael Hoefer, Nancy Rytina,, and Bryan C. Baker. Office of Immigration Statistics. Web. 7 May 2010. .


What Ever Happened to Judgment?

February 25, 2010

Back in the 1990s, Phillip K. Howard wrote a relatively small book called The Death of Common Sense. The book is a cautionary tale describing the cause and effect of the regulations we deal with as we go though our daily activities.  It was very successful, as far as this type of book goes, but unfortunately, we (the United States of America) did not heed his warnings.  In truth, we pressed the gas pedal of regulation down hard, to the point of stifling every aspect of our daily lives.

Reading the book left me with one huge question then, and it still remains today – what has happened to our judgment?  As a lawyer, Mr. Howard is well aware of the negative aspects regarding regulation and the legal system.  That is not to say he wants regulation removed, to the contrary, he describes a system of regulation that allows for common sense to prevail.  That is the point, not every issue is equal in basis, nor should the rules regarding every issue be “one size fits all.”  Common sense judgment must be applied.

Today, life revolves around lawsuits, we are either suing, being sued, looking to sue or fear being sued.  It drives our lives in ways we no longer even see.  Want to make a snazzy new bucket everyone will want to buy – not without a warning label that a small child might drown in it.  Let’s be honest, it would not be much of a bucket if a small child could not.  A logical question might be what is wrong with taking the extra precaution of a warning label?  The problem is one of familiarity, warning labels are so common we no longer see them; they no longer have meaning.  Why does the bucket label exist in the first place?  Fear of a lawsuit.  Heaven forbid a child drowns, but if it happens, your new bucket company is safe, you warned them.  Still, that warning does not prevent the lawsuit as much as give an affirmative defense and limit liability.

Of course, now the federal government now requires such a label.  Rather than work on trivial matters such as our economy or health care, they spend their time on regulations that allow them to claim action when in reality, it does nothing to improve safety.  For example, ten times as many children drown in bathtubs as buckets each year but the tubs do not carry the warning.  Maybe the plumbing industry has better lobbyists.

As silly as the example is, the bucket warnings are real.  I am sure businesses do not mind the warnings for fear of a lawsuit making it to trial, not an individual’s safety.  People have lost faith that a judge will look at a stupid claim and throw it out.  We cannot fully blame judges; in addition to things like warning labels, our various legislative bodies have passed laws that restrict a judge’s ability to judge with the result being they are more a referee than true jurist, especially when a jury is involved.  In the end, the more we define how a judge must rule, the less judgment takes place.  The problem with such legislation it is the assumption that all situations are equal, that every claim is at least valid and should be heard.

If judges cannot use common sense, individuals and businesses are left to try to cover every possible out come, however remote.  As Mr. Howard points out “society is boiled down to our least common denominator.”  There is a difference between driving 100MPH to get to the ballgame on time and doing so to get your child to the hospital.  A judge should not have a law that prevents seeing each case with its particular circumstances and applying sound judgment.  In both cases, the individuals are guilty of the same offence but intent does matter.  Judges must be allowed to take that into consideration.  A party of a lawsuit can appeal a decision they feel is wrong.  We, as society must accept their verdict even if we do not agree with it.  They heard the case, weighed the facts, took situations into account, we did not.

We need to return common sense to our legal system.  We need fewer dictatorial laws and ones that are more reflective.  Laws that allow judges to do their job; laws that allow the public to have faith in the system, no matter what side they are on, not feel as though they’ve been run over by it.

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