Don Hamrick
member
- Joined
- Mar 28, 2005
- Messages
- 52
Hamrick v. President Bush, et al, U.S. Supreme Court, No. 04-1150; (appealed before judgment from U.S. Court of Appeals for the DC Circuit, No. 04-5316)
Reasons for Granting the Writ of Certiorari
The U.S. Department of Justice’s August 24, 2004 Memorandum Opinion for the Attorney General titled, Whether the Second Amendment Secures an Individual Right, concluding that the Second Amendment secures an individual right to keep and to bear arms is the latest in a series of official opinions acknowledging the individual rights’ status of the Second Amendment.
In this past century the U.S. Congress, the federal courts, the State Assemblies and the State courts have taken a restrictive interpretation regarding the Second Amendment and the Common Defence clause in the Preamble to the U.S. Constitution to the extent that the American people today are prohibited from exercising Second Amendment rights that were once freely and openly exercised before the Reconstruction Era of the American Civil War.
The U.S. Constitution and the Bill of Rights with the Thirteenth and Fourteenth Amendments are interdependent upon each other for insuring that the guarantee of our Republican Form of Government will always be preserved by an openly armed People. The gun control agenda has served to subvert this guarantee and this treachery is becoming more and more exposed through a rediscovery of the true meaning and intent of the Second Amendment by a growing number of federal courts and now by the U.S. Department of Justice.
The Second Amendment is now officially recognized as a civil right. But the scope and range of that civil right, i.e., the Second and Night Amendment rights and Tenth Amendment power to be openly armed (at least with a handgun worn as a sidearm) in intrastate and interstate travel as a U.S. citizen under the Fourteenth Amendment (the Incorporation Doctrine) has yet to be officially determined or recognized. This is the compelling reason under Rule 10 and in accordance with 28 U.S.C. § 2101(e) for the U.S. Supreme Court to grant the Petitioner his Petition for Writ of Certiorari.
Joseph Story’s commentary on the common defence clause of the Preamble to the Constitution states in part:
“No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?†[fn2]
[fn2] 1 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. Adler & W. Gorman, The American Testament (New York: 1975), 63–118. Cited in U.S. Senate Document No. 103-6; 103d Congress, 1st Session, The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided By the Supreme Court of the United States to June 29, 1992
The Second Amendment rights of U.S. civilian merchant seamen living at home in the United States, whether they are engaged in intrastate and interstate travel must also be officially recognized in law and regulations under U.S. jurisdiction and in maritime law.
Restrictive interpretations of the Second Amendment has served to defeat the Common Defence and has also served to cause havoc to Domestic Tranquility (Preamble to the U.S. Constitution) and has further undermined the General Welfare. It is time long overdue to return to the other more liberal interpretation of the common defence and the Second Amendment.
Citing from the conclusion of Brannon P. Denning’s, Gun Shy: The Second Amendmnt as an “Underenforced Constitutional Norm,†21 Harv. J.L. & Pub. Pol’y 719 (Summer, 1998):
Until the Court decides to take up the question squarely, however, and as long as lower federal courts perpetuate more erroneous decisions, judicial underenforcement of the Second Amendment will continue. By adopting Professor Sager’s thesis, I have also attempted to refocus the debate from the now-familiar Standard Model versus States’ right model. That debate has run its course; I believe that both sides have garnered all the converts they will get. As in previous works on the Second Amendment, I have been interested in exploring why the Second Amendment continues, in the federal judiciary, to be a constitutional pariah, barred from associating with other “high caste†civil liberties our judges have labored to protect.
Professor Sager’s underenforcement thesis seems a wonderful lens through which to view the Second Amendment question, and I have argued that doing so helps clarify things. In suggesting remedies, I do not pretend to have all the answers, just as I have not attempted to answer the myriad questions that would arise from full judicial enforcement of the Second Amendment. Such consensus will have to come after a challenging, but exciting and necessary, debate. I hope this Article might serve to move that debate forward, which I sincerely hope will be conducted in a reasoned, disinterested manner that befits those of us who have devoted ourselves to constitutional scholarship.Katzenbach v. Morgan [fn3]
[fn3] Predictions - and pleas, too - play a crucial role in the continuing dialogue between Congress and the Supreme Court; so do the other efforts by Congress to change the Court’s mind. Katzenbach v. Morgan may be best read as no more than an implicit judicial acknowledgment of the truth of both these propositions.
Carter, supra note 402, at 863.
Citing the conclusion from Ian Redmond, Legislative Reform: The Second Amendment: Bearing Arms Today, 28 Journal of Legislation 325 (2002):
Despite decades of neglect by the Supreme Court, [fn4] Koren Wai Wong-Ervin, The Second Amendment and the Incorporation Conundrum: Towards a Workable Jurisprudence, 50 Hastings L.J. 177 (1998)David E. Murley, Private Enforcement of the Social Contract: DeShaney and the Second Amendment Right to Own Firearms, 36 Duq. L. Rev. 827 (1998) the Second Amendment endures as one of the explicit guarantees of our federal Constitution. Though some believe the amendment was once the “quintessential example†of “settled constitutional law,†[fn5] Carl T. Bogus, Fresh Looks: The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000) even they must admit that recent scholarship in the area has fueled a lively debate among academics, jurists, and citizens alike concerning the scope of the right to bear arms. [fn6] There is no modern consensus among Americans on the issue, but a growing number of people have concluded that, consistent with the text of the amendment itself, the Second Amendment safeguards an individual right from federal infringement. At least two justices of the Supreme Court have indicated that they suspect the same to be true. Quite recently, moreover, the United States Court of Appeals for the Fifth Circuit has also endorsed the individual right interpretation of the amendment.
Those who have concluded that the Second Amendment protects an individual right may disagree with the formulations of several federal courts of appeals, but it is their conclusion that finds support in the United States Constitution. If and when the Supreme Court answers Justice Thomas’s recent call to reconsider the scope of the Second Amendment, the justices [*348] should recognize as much. Moreover, in the event that someone brings a challenge against a state law infringing upon the right to bear arms, the Court should incorporate the right to bear arms against the states under the Due Process Clause of the Fourteenth Amendment. Only then will the Second Amendment, which safeguards what Justice Joseph Story called “the palladium of the liberties of a republic,†[fn8] be afforded its proper place amongst our fundamental freedoms.
[fn4] See Koren Wai Wong-Ervin, The Second Amendment and the Incorporation Conundrum: Towards a Workable Jurisprudence, 50 Hastings L.J. 177 (1998), (“Despite a large number of United States Supreme Court cases interpreting the Bill of Rights, the Supreme Court has almost entirely avoided interpreting the Second Amendment.â€); David E. Murley, Private Enforcement of the Social Contract: DeShaney and the Second Amendment Right to Own Firearms, 36 Duq. L. Rev. 827 (1998), (“The United States Supreme Court has been derelict in its duty to interpret the right to keep and bear arms.â€).
[fn5] Carl T. Bogus, Fresh Looks: The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000).
[fn6] See Wong-Ervin, at 178.
[fn7] See Printz, 521 U.S. at 939 (Thomas, J., concurring) (“Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’â€) (quoting 3 J. Story, Commentaries § 1890 (1833)).
[fn8] Id.
Justice Thomas had speculated in the Printz case. Justice Thomas stated:
Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.†3 J. Story, Commentaries § 1890, p. 746 (1833). Printz v. United States (95-1478), 521 U.S. 98 (1997). Nos. 95-1478 and 95-1503 Printz v. United States (95-1478), 521 U.S. 98 (1997) [fn9]
[fn9] Printz v. United States (95-1478), 521 U.S. 98 (1997). Nos. 95-1478 and 95-1503. Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. United States Richard Mack, PETITIONER 95-1503.
That some future date is now!
Petitioner’s case has such imperative public importance as to justify deviation from the normal appellate practice and to require immediate determination in the United States Supreme Court under Rules 10 and 11 of the Rules of the Supreme Court of the United States as well as in accordance with 28 U.S.C. § 2101(e).
Reasons for Granting the Writ of Certiorari
The U.S. Department of Justice’s August 24, 2004 Memorandum Opinion for the Attorney General titled, Whether the Second Amendment Secures an Individual Right, concluding that the Second Amendment secures an individual right to keep and to bear arms is the latest in a series of official opinions acknowledging the individual rights’ status of the Second Amendment.
In this past century the U.S. Congress, the federal courts, the State Assemblies and the State courts have taken a restrictive interpretation regarding the Second Amendment and the Common Defence clause in the Preamble to the U.S. Constitution to the extent that the American people today are prohibited from exercising Second Amendment rights that were once freely and openly exercised before the Reconstruction Era of the American Civil War.
The U.S. Constitution and the Bill of Rights with the Thirteenth and Fourteenth Amendments are interdependent upon each other for insuring that the guarantee of our Republican Form of Government will always be preserved by an openly armed People. The gun control agenda has served to subvert this guarantee and this treachery is becoming more and more exposed through a rediscovery of the true meaning and intent of the Second Amendment by a growing number of federal courts and now by the U.S. Department of Justice.
The Second Amendment is now officially recognized as a civil right. But the scope and range of that civil right, i.e., the Second and Night Amendment rights and Tenth Amendment power to be openly armed (at least with a handgun worn as a sidearm) in intrastate and interstate travel as a U.S. citizen under the Fourteenth Amendment (the Incorporation Doctrine) has yet to be officially determined or recognized. This is the compelling reason under Rule 10 and in accordance with 28 U.S.C. § 2101(e) for the U.S. Supreme Court to grant the Petitioner his Petition for Writ of Certiorari.
Joseph Story’s commentary on the common defence clause of the Preamble to the Constitution states in part:
“No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?†[fn2]
[fn2] 1 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. Adler & W. Gorman, The American Testament (New York: 1975), 63–118. Cited in U.S. Senate Document No. 103-6; 103d Congress, 1st Session, The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided By the Supreme Court of the United States to June 29, 1992
The Second Amendment rights of U.S. civilian merchant seamen living at home in the United States, whether they are engaged in intrastate and interstate travel must also be officially recognized in law and regulations under U.S. jurisdiction and in maritime law.
Restrictive interpretations of the Second Amendment has served to defeat the Common Defence and has also served to cause havoc to Domestic Tranquility (Preamble to the U.S. Constitution) and has further undermined the General Welfare. It is time long overdue to return to the other more liberal interpretation of the common defence and the Second Amendment.
Citing from the conclusion of Brannon P. Denning’s, Gun Shy: The Second Amendmnt as an “Underenforced Constitutional Norm,†21 Harv. J.L. & Pub. Pol’y 719 (Summer, 1998):
Until the Court decides to take up the question squarely, however, and as long as lower federal courts perpetuate more erroneous decisions, judicial underenforcement of the Second Amendment will continue. By adopting Professor Sager’s thesis, I have also attempted to refocus the debate from the now-familiar Standard Model versus States’ right model. That debate has run its course; I believe that both sides have garnered all the converts they will get. As in previous works on the Second Amendment, I have been interested in exploring why the Second Amendment continues, in the federal judiciary, to be a constitutional pariah, barred from associating with other “high caste†civil liberties our judges have labored to protect.
Professor Sager’s underenforcement thesis seems a wonderful lens through which to view the Second Amendment question, and I have argued that doing so helps clarify things. In suggesting remedies, I do not pretend to have all the answers, just as I have not attempted to answer the myriad questions that would arise from full judicial enforcement of the Second Amendment. Such consensus will have to come after a challenging, but exciting and necessary, debate. I hope this Article might serve to move that debate forward, which I sincerely hope will be conducted in a reasoned, disinterested manner that befits those of us who have devoted ourselves to constitutional scholarship.Katzenbach v. Morgan [fn3]
[fn3] Predictions - and pleas, too - play a crucial role in the continuing dialogue between Congress and the Supreme Court; so do the other efforts by Congress to change the Court’s mind. Katzenbach v. Morgan may be best read as no more than an implicit judicial acknowledgment of the truth of both these propositions.
Carter, supra note 402, at 863.
Citing the conclusion from Ian Redmond, Legislative Reform: The Second Amendment: Bearing Arms Today, 28 Journal of Legislation 325 (2002):
Despite decades of neglect by the Supreme Court, [fn4] Koren Wai Wong-Ervin, The Second Amendment and the Incorporation Conundrum: Towards a Workable Jurisprudence, 50 Hastings L.J. 177 (1998)David E. Murley, Private Enforcement of the Social Contract: DeShaney and the Second Amendment Right to Own Firearms, 36 Duq. L. Rev. 827 (1998) the Second Amendment endures as one of the explicit guarantees of our federal Constitution. Though some believe the amendment was once the “quintessential example†of “settled constitutional law,†[fn5] Carl T. Bogus, Fresh Looks: The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000) even they must admit that recent scholarship in the area has fueled a lively debate among academics, jurists, and citizens alike concerning the scope of the right to bear arms. [fn6] There is no modern consensus among Americans on the issue, but a growing number of people have concluded that, consistent with the text of the amendment itself, the Second Amendment safeguards an individual right from federal infringement. At least two justices of the Supreme Court have indicated that they suspect the same to be true. Quite recently, moreover, the United States Court of Appeals for the Fifth Circuit has also endorsed the individual right interpretation of the amendment.
Those who have concluded that the Second Amendment protects an individual right may disagree with the formulations of several federal courts of appeals, but it is their conclusion that finds support in the United States Constitution. If and when the Supreme Court answers Justice Thomas’s recent call to reconsider the scope of the Second Amendment, the justices [*348] should recognize as much. Moreover, in the event that someone brings a challenge against a state law infringing upon the right to bear arms, the Court should incorporate the right to bear arms against the states under the Due Process Clause of the Fourteenth Amendment. Only then will the Second Amendment, which safeguards what Justice Joseph Story called “the palladium of the liberties of a republic,†[fn8] be afforded its proper place amongst our fundamental freedoms.
[fn4] See Koren Wai Wong-Ervin, The Second Amendment and the Incorporation Conundrum: Towards a Workable Jurisprudence, 50 Hastings L.J. 177 (1998), (“Despite a large number of United States Supreme Court cases interpreting the Bill of Rights, the Supreme Court has almost entirely avoided interpreting the Second Amendment.â€); David E. Murley, Private Enforcement of the Social Contract: DeShaney and the Second Amendment Right to Own Firearms, 36 Duq. L. Rev. 827 (1998), (“The United States Supreme Court has been derelict in its duty to interpret the right to keep and bear arms.â€).
[fn5] Carl T. Bogus, Fresh Looks: The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000).
[fn6] See Wong-Ervin, at 178.
[fn7] See Printz, 521 U.S. at 939 (Thomas, J., concurring) (“Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’â€) (quoting 3 J. Story, Commentaries § 1890 (1833)).
[fn8] Id.
Justice Thomas had speculated in the Printz case. Justice Thomas stated:
Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.†3 J. Story, Commentaries § 1890, p. 746 (1833). Printz v. United States (95-1478), 521 U.S. 98 (1997). Nos. 95-1478 and 95-1503 Printz v. United States (95-1478), 521 U.S. 98 (1997) [fn9]
[fn9] Printz v. United States (95-1478), 521 U.S. 98 (1997). Nos. 95-1478 and 95-1503. Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. United States Richard Mack, PETITIONER 95-1503.
That some future date is now!
Petitioner’s case has such imperative public importance as to justify deviation from the normal appellate practice and to require immediate determination in the United States Supreme Court under Rules 10 and 11 of the Rules of the Supreme Court of the United States as well as in accordance with 28 U.S.C. § 2101(e).
