Close X

Rhode Island Bar Journal Article

Misinformation in University of MA Newspaper

Posted by Keith G. Langer | Apr 08, 2021 | 0 Comments

A UMass columnist/student government member wrote an article claiming the Second Amendment is a collective right, and we should expand the Supreme Court to get "gun control" enacted. 

https://dailycollegian.com/.../pack-the-court-pass-gun.../

This was my response:

I have read Columnist Brum's Jeremiad regarding gun control. Let us examine this litany of false analyses.

He declares, “The truth is, unless you are a member of the National Guard, you have no Second Amendment rights. That is, only members of the National Guard would have Second Amendment rights if not for rulings by conservative Supreme Court judges in recent decades.”

That is utterly absurd. The National Guard is Constitutionally irrelevant. It was not even created until the Dick Act of 1903.

As anyone with even a minimal knowledge of what the true “militia” is knows, it originally consisted of “ all able-bodied males at least 17 years of age and, under 45 years of age.” See 10 USC 311. That legal fact was expressly noted in US v. Miller, 59 S.Ct. 816, back in 1939; hardly one of the decisions in the “recent decades” Mr. Brum bemoans.

That language is found, virtually verbatim, in Massachusetts law, which Brum also ignores. See Mass. Gen. Laws c. 33, s. 2 and 3. In both statutes, references to the National Guard supplement, not replace, the true “militia” identified in the Second Amendment.

Brum even goes so far as to declare, “ The purpose of this [Second] amendment, as affirmed by historians, was to stop the federal government from getting rid of state militias.” That is nonsense. The Founding Fathers abhorred standing armies, leaving the citizen militias as the nation's primary defense. That is why the Second Amendment expressly protected the fundamental, inherent right to arms, and the Militia Act of 1793, now 10 USC 311, expressly defined those militias.

Brum also ignores the use of the term “people” in the Constitution, claiming, “ there was no individual right to own firearms” prior to the 1986 Heller decision. That assertion is also absurd. The Supreme Court addressed the history and purpose of the Second Amendment, in detail, in Heller, supra, and the 2010 decision, McDonald v. Chicago, 130 S. Ct. 3020. The Second Amendment clearly and expressly protects a fundamental right.

Brum would have us believe that use of “the people” precludes an individual right. Law and language prove otherwise.

The Constitution also uses the word “people” in First, Fourth, and Tenth Amendments. Under Brum's shallow analysis, there would be no individual right to worship as one chooses, to assemble in groups, to speak out or write about governmental acts and policies, or to contact governmental officials. There would be no individual right to publish anything. Only some vague, unspecified collective would be authorized to do so - by means also not made manifest in Brum's reasoning. His denial of “people” as consisting of individuals would eviscerate the First Amendment. His definition has no support in Constitutional law, as numerous Supreme Court decisions clearly show.

He would also destroy our Fourth Amendment rights. It protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” That is also a clearly individual right, protecting each of us; not Brum's amorphous entity. Again, numerous Supreme Court decisions reject his specious reasoning.

The Tenth Amendment states, “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.” Note the express distinction between “states” and “people;” a distinction which Brum ignores in his claim that “people” mandates some vague, collective right - an oxymoronic concept. Only individuals have rights; states have powers. Again, as everywhere else “the people” is used in the Constitution, it deals with individual rights.

It is bizarre that Brum declares “gun control works” when it is patently obvious it does not. Whether it is Chicago, New York, Newark, Philly, Trenton, Los Angeles, or D.C. - all places with onerous restrictions amounting to bans on individuals owning firearms - these Manichean gun laws do nothing. The criminals are well-armed, profligate in use of their guns to protect their other illegal activities. Only the honest citizens are disarmed, and easy prey for the criminal element. That is the reality Brum chooses to ignore.

His solution is to pack the court: “ What we can do is increase the number of justices.” FDR attempted that power grab when he was in office. He failed. Let us hope Brum does, also.

Keith G. Langer
Class of 1975

About the Author

Keith G. Langer

Keith G. Langer, Attorney at Law SERVING NORFOLK COUNTY, MA, AND SURROUNDING AREAS Solo practitioner concentrating in civil litigation, collections, family law and administrative law, particularly firearms licensing.Professional Qualifications: One of the longest-serving member of the Firear...

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Your Time May Be Limited!

If you are a defendant in a civil suit, you have a specific period of time in which to file an answer. Failure to do so can result in a default judgment being issued against you. Failure to timely submit responses to discovery requests can also negatively affect your case. Those named as defendants in criminal cases via clerk magistrate or “show cause” hearings must appear, or the complaint will issue against them. Those seeking to appeal a negative action, such as a firearms license denial or revocation, denial of a permit, or losing a case at trial, all have specific time periods in which to act. Do not lose your rights by inertia or delay.

Act Now!

The law is an area in which inertia can have very negative consequences: The loss of rights and remedies. It is unlikely that your problem will just “go away” - act now to protect yourself and preserve your options.