Part 3 Wrong On Supreme Court And Second Amendment

Larry Pratt
Part III — Etzioni Wrong On The Supreme Court And The Second Amendment

Time magazine once referred to Amitai Etzioni as “the everything expert.” But, in a lengthy interview we conducted with the George Washington University professor of sociology, he proved to be an expert on nothing and wrong about virtually everything he said.

For openers, regarding the Second Amendment, Etzioni says:

    What I’m saying is that the issue, if we do have the right to bear arms as individuals, came up before the highest court in the land five times over 125 years. In each single case, without exception, the court ruled there is no such right… It’s what the highest court in the land ruled again and again and again without exception.

    Now, I know there are people out there who like to pick and choose. If they like what the court says… they say that’s fine, that’s the ultimate authority. If they don’t like it, they say the court is not the one to rule. That’s not the way we do things here. There is a rule of law and the Supreme Court is the one who gives the final interpretation. The Court ruled unanimously again and again that there is no individual right to bear arms. Read it any way you want. That is the truth.

But, of course, what Etzioni says is not the truth. The truth is that not even one Supreme Court ruling has said, “unanimously,” what the professor here asserts so confidently and categorically.

For example, U.S. v. Cruikshank (1876) involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

This case is often misunderstood or quoted out of context by claiming that it held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren’t granted or created by the Constitution; they existed prior to the Constitution.

In Presser v. Illinois (1886) Herman Presser was found guilty of parading a group of armed men with approval of the state of Illinois. He claimed this was unconstitutional and violated his Second Amendment right. Though the court stated Second Amendment issues were not involved, it reaffirmed that it applied as a limitation only on the national government. This ruling expressed the belief that the right to keep and bear arms existed independently of the Second Amendment for “all citizens capable of bearing arms,” and the states could not infringe upon this right.

In U.S. v Miller (1939), Frank Layton and Jack Miller were charged with violating the 1934 National Firearms Act, which regulated and taxed the transfer of certain types of firearms, and required the registration of such arms. In the entire text of this ruling there is no mention of the words “state militia” or “National Guard.” In fact, this ruling interpreted the Second Amendment to mean one has the right to own militia-type weapons.

In U.S. v. Verdugo-Urquidez (1991), the Court observed that the words “the people” are used in the First, Second, Fourth, Ninth and Tenth amendments. Each use refers to an individual, not a collective, right.

Finally, while Etzioni is critical of those who “pick and choose” among court decisions, he, too, picks and chooses. When it is pointed out to him that the courts once also upheld slavery, he says: “That’s right.”

    Q: So, if we were talking back then, would you now be defending slavery because it was upheld by the courts?

    A: You’re going to pick and choose now because 100 years ago there was a mistaken decision? So, now you’re going to dismiss all court decisions?

Hmmmm. A “mistaken decision” eh? Sounds like he is picking and choosing.

But, no, we are not saying all court decisions should be dismissed because some have been wrong. What we are saying is that the Second Amendment protects an individual right to keep and bear arms, a right that existed prior to the Constitution. And, thus, this individual right cannot, must not, be infringed! Period!

U.S. v. Lopez is certainly a case Etzioni would like to ignore as he picks and chooses. The Supreme Court ruled in 1995 that gun free school zones imposed by Congress were unconstitutional; under the Tenth Amendment, Congress has no authority to legislate gun free zones. Congress certainly thought it O.K. to pick and choose. They reenacted the gun ban the following year.

Pity that of all the goofy Supreme Court decisions from which to pick and choose, Congress took a decision that was constitutional and overrode it. They had the authority to override the Court, even if their law was both in conflict with the Constitution and common sense (criminals are safer in such zones and hardly likely to obey the ban).

The way to resolve conflicts between branches of government is at the polls, not by the elite hiding information that is “not suitable” for the masses as Etzioni argues.