The Right to Keep and Bear Arms – Chief Justice Warren Burger

Twenty-five years ago, retired Chief Justice Warren Burger, wrote an article about his disagreement with how the Gun Rights advocates were misrepresenting the 2nd Amendment to the US Constitution. This discussion by one of America’s foremost legal leaders is as pertinent today as when Chief Justice Burger wrote it. So, I thought I would post this article originally printed in Parade Magazine in 1990 as a guest blog on the current issue of what rights the 2nd Amendment gives to US citizens and whether assault weapons can be banned from general ownership.

[Chief Justice Warren Burgers article follows]

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The Right To Bear Arms

A distinguished citizen takes a stand on one of the most controversial issues in the nation

By Warren E. Burger, Chief Justice of the United States (1969-86) Parade Magazine, January 14, 1990, page 4
Our metropolitan centers, and some suburban communities of America, are setting new records for homicides by handguns. Many of our large centers have up to 10 times the murder rate of all of Western Europe. In 1988, there were 9000 handgun murders in America. Last year, Washington, D.C., alone had more than 400 homicides — setting a new record for our capital.

The Constitution of the United States, in its Second Amendment, guarantees a “right of the people to keep and bear arms.” However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. The first 10 amendments — the Bill of Rights — were not drafted at Philadelphia in 1787; that document came two years later than the Constitution. Most of the states already had bills of rights, but the Constitution might not have been ratified in 1788 if the states had not had assurances that a national Bill of Rights would soon be added.

People of that day were apprehensive about the new “monster” national government presented to them, and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment’s guarantees — against “establishment of religion,” “free exercise” of religion, free speech and free press — came a guarantee that grew out of the deep-seated fear of a “national” or “standing” army. The same First Congress that approved the right to keep and bear arms also limited the national army to 840 men; Congress in the Second Amendment then provided:

“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.”

In the 1789 debate in Congress on James Madison’s proposed Bill of Rights, Elbridge Gerry argued that a state militia was necessary:

“to prevent the establishment of a standing army, the bane of liberty … Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise and army upon their ruins.”

We see that the need for a state militia was the predicate of the “right” guaranteed; in short, it was declared “necessary” in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word “because” was the opening word of the guarantee. Today, of course, the “state militia” serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns — rifles, shotguns and even machine pistols — with all firearms, including what are now called “Saturday night specials.” There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to “concealed weapons” are common. That we may be “over-regulated” in some areas of life has never held us back from more regulation of automobiles, airplanes, motorboats and “concealed weapons.”

Let’s look at the history.

First, many of the 3.5 million people living in the 13 original Colonies depended on wild game for food, and a good many of them required firearms for their defense from marauding Indians — and later from the French and English. Underlying all these needs was an important concept that each able-bodied man in each of the 133 independent states had to help or defend his state.

The early opposition to the idea of national or standing armies was maintained under the Articles of Confederation; that confederation had no standing army and wanted none. The state militia — essentially a part-time citizen army, as in Switzerland today — was the only kind of “army” they wanted. From the time of the Declaration of Independence through the victory at Yorktown in 1781, George Washington, as the commander-in-chief of these volunteer-militia armies, had to depend upon the states to send those volunteers.

When a company of New Jersey militia volunteers reported for duty to Washington at Valley Forge, the men initially declined to take an oath to “the United States,” maintaining, “Our country is New Jersey.” Massachusetts Bay men, Virginians and others felt the same way. To the American of the 18th century, his state was his country, and his freedom was defended by his militia.

The victory at Yorktown — and the ratification of the Bill of Rights a decade later — did not change people’s attitudes about a national army. They had lived for years under the notion that each state would maintain its own military establishment, and the seaboard states had their own navies as well. These people, and their fathers and grandfathers before them, remembered how monarchs had used standing armies to oppress their ancestors in Europe. Americans wanted no part of this. A state militia, like a rifle and powder horn, was as much a part of life as the automobile is today; pistols were largely for officers, aristocrats — and dueling.

Against this background, it was not surprising that the provision concerning firearms emerged in very simple terms with the significant predicate — basing the right on the necessity for a “well regulated militia,” a state army.

In the two centuries since then — with two world wars and some lesser ones — it has become clear, sadly, that we have no choice but to maintain a standing national army while still maintaining a “militia” by way of the National Guard, which can be swiftly integrated into the national defense forces.

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing — or to own automobiles. To “keep and bear arms” for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; “Saturday night specials” and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.

Americans should ask themselves a few questions. The Constitution does not mention automobiles or motorboats, but the right to keep and own an automobile is beyond question; equally beyond question is the power of the state to regulate the purchase or the transfer of such a vehicle and the right to license the vehicle and the driver with reasonable standards. In some places, even a bicycle must be registered, as must some household dogs.

If we are to stop this mindless homicidal carnage, is it unreasonable:

  1. to provide that, to acquire a firearm, an application be made reciting age, residence, employment and any prior criminal convictions?
  2. to required that this application lie on the table for 10 days (absent a showing for urgent need) before the license would be issued?
  3. that the transfer of a firearm be made essentially as with that of a motor vehicle?
  4. to have a “ballistic fingerprint” of the firearm made by the manufacturer and filed with the license record so that, if a bullet is found in a victim’s body, law enforcement might be helped in finding the culprit?

These are the kind of questions the American people must answer if we are to preserve the “domestic tranquillity” promised in the Constitution.

 

FBI Investigation into Hillary Clinton: What Are They Looking at?

NEW: Link to the US Dept of State Office of the Inspector General Report on Clinton and other Emails.

According to a United Press International (UPI) report of statements by FBI Director James Comey, the investigation into Hillary Clinton’s State Department problems may be nearing a conclusion. Some of Clinton’s top aides and advisers were interviewed in the past week, and the FBI indicated it would next interview Clinton herself, a sign the investigation could be nearing an end and that a recommendation to prosecute or drop the case may be forthcoming.

FBI Director Comey went to great lengths to say that the FBI actions were a formal investigation and not simply a “security inquiry” as Hillary Clinton herself had dubbed it. When asked directly, he again noted he regarded the FBI’s actions as a formal investigation, contrary to Clinton’s regular characterization of the issue as a “security inquiry.” Several commentators have suggested that this manner of characterizing the investigation could indicate that the investigation may involve more than the issue of security classification of email found on the infamous “private” server used by Clinton while Secretary of State.

The investigation could include inquiry into other matters found amongst the email, including conflict of interest between the Clinton Foundation’s international fundraising and Secretary Clinton’s duties as Secretary. It seems fairly clear that Secretary Clinton did not comply with a pre-appointment written pledge to the Obama administration regarding potential fundraising conflicts. In particular, interest is being shown in the interplay between payments made with sources involving Russian uranium interests and US State Department approvals of a license needed to collect, store and process foreign uranium. On top of these possible fundraising irregularities is the direct payment to Bill Clinton of $500,000.00 from a Russian bank with strong Kremlin ties and connection to the Russians involved in the uranium deal. The Clinton Foundation was linked to the Russian atomic energy agency’s 2013 acquisition of a company that controls one-fifth of all uranium production capacity in the U.S., The New York Times reported in April 2016. http://www.thedailybeast.com/cheats/2015/04/23/clintons-tied-to-russian-uranium-control.html

According to a BusinessInsider.com report the basic facts were: This story is about the sale of a controlling stake in a Canadian company called Uranium One to Rosatom, the Russian atomic energy agency. Because Uranium One controlled uranium mines in the United States, the sale had to be approved by the Committee on Foreign Investment In the United States (CFIUS), part of the executive branch. A number of investors in Uranium One gave donations to the Clinton Foundation during the time the sale was being considered (between 2008 and 2010), in part through the participation of Frank Giustra, a Canadian mining magnate who was a large donor to the Foundation and who had controlled a company that eventually bought Uranium One (according to the Times, Giustra sold his interest in the company in 2007, before the Rosatom deal). The reason this is a story is the potential that there was some quid pro quo involved: that in exchange for donations to the Clinton Foundation and/or the speech Bill Clinton gave in Russia, Hillary Clinton used her position as Secretary of State to make approval of this sale happen. It need not be explicit, but at the very least there has to be a connection between donations and official action that Clinton took. The Clinton emails could shed light on that.

The New York Times published several lengthy analyses of Clinton’s involvement (perhaps) in the Russian uranium deal and possible glitches in Clinton promises and conditions on fundraising while she was Secretary of State. http://www.nytimes.com/2015/04/24/us/cash-flowed-to-clinton-foundation-as-russians-pressed-for-control-of-uranium-company.html [Also see links below]

The unanswered question is whether the tens of thousands of emails on the private Clinton server which the FBI has access to, but which have not been released publicly provide any further information that would cause concern for FBI investigators who have access to those emails. Another highly important question is whether the admitted attempts to delete Clinton’s “private” emails” were in fact attempts to cover up evidence of the financial irregularities that have now come to light from other sources.

While FBI Director Comey has gone to great lengths to explain his intentions and duty is to provide a thorough investigation and not one directly tied to the exigencies of the ongoing presidential campaign, it seems a foregone conclusion that if there were any potential for any indictments forthcoming, that the interests of the nation would require disclosure of such a possibility prior to the nominating convention and the election. “I don’t tether to any particular external deadline,” Comey told reporters, “so I do feel the pressure to do it well and promptly, but as between the two, I always choose ‘well.'” Again, Comey, AG Lynch and all of their staffs involved in the investigation have been silent into exactly what the investigation is looking for.

Breitbart Report Speculating on What Clinton’s Email may Disclose  Journalist and author Carl Bernstein stated that there would be “very damaging” leaks from the investigation into Democratic presidential candidate former Secretary of State Hillary Clinton’s email, and described her conduct as “what she did was an act of recklessness, and entitlement, that there’s no excuse for.”

United Press International (UPI) report

New York Times reportCash Flowed to Clinton Foundation Amid Russian Uranium Deal”

New York Times report Donations to the Clinton Foundation, and a Russian Uranium Takeover”

 

Donald Trump MUST Release Tax Returns Before Convention

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Donald Trump MUST release his tax returns, and more importantly, disclose the reason behind the IRS audit of his finances. Donald Trump’s statement that “One, the voters don’t actually care about this, and two, there is no new information that would come out of the tax returns” is pure nonsense and could not be farther from the truth.

While releasing his tax returns would give voters important information about Donald Trump’s wealth, business acumen and financial dealings, the very nature of the audit being conducted by IRS against Donald Trump is the most important information. It is essential information that the people need before the election for President. Unlike the typical IRS audit experienced by the average citizen which may be caused by a simple mistake or the taxpayer fitting a profile that the IRS is looking at to justify audits, the very real possibility exists that a complex multi-year IRS audit like is being done on Donald Trump’s tax records could very well be a “forensic audit” that is part of a criminal or quasi-criminal investigation involving tax evasion, fraud or other misdeeds. If the IRS is doing a forensic audit in search of tax evasion or the like, the American people need to know, before the election, and even before the nominating convention.

The very fact that Donald Trump is under investigation for tax years going back to 2009 is highly suspect. Such a multi-year audit could be an indicator that there is something organically wrong with Trump’s finances. Trump’s involvement in real estate investments, derivative based financing and companies involved in bankruptcies, foreclosures and leveraged buy-outs puts him in the prime territory where other financial moguls have had serious tax evasion problems. The fact that Trump says he cannot release his tax returns “because he is being audited” is profoundly suspicious in itself. There is no official reason why he should not or could not release his returns. In February 2016, IRS said, regarding Trump’s tax case, “Federal privacy rules prohibit the IRS from discussing individual tax matters. Nothing prevents individuals from sharing their own tax information.” So, the only possible reason for Trump not releasing his returns is his own self-protection. If he is being investigated for tax evasion or tax fraud Trump would be foolish to disclose the nature of the IRS audit or release his returns, but the voters should demand it.

CNN article on Nixon Releasing Tax Returns while being audited. http://linkis.com/money.cnn.com/2016/0/BoB0c 

CNN article on Trump tax case – http://www.cnn.com/2016/05/11/politics/donald-trump-tax-returns/index.html

Businessweek: Trump has Reported Profits that are not Real https://ricochet.com/businessweek-trump-reported-profits-not-real/

The Forensic Tax Audit Specialist Who Taught Donald Trump to Bankrupt a Company but Keep the Wealth for Himself — http://forensiccpas.com/warren.html

Hillary Clinton’s Legislative Record

Quoting Meredith Shiner’s article on Yahoo, here is a synopsis of Hillary Clinton’s accomplishments as a legislator in her 8 years in the US Senate.  

Link to Meredith’s full article https://www.yahoo.com/news/the-hillary-clinton-record-in-the-senate-she-116148327116.html

In the eight years she served as a senator, Clinton introduced three bills that became law, a 2008 bill “to designate a portion of United States Route 20A, located in Orchard Park, N.Y., as the ‘Timothy J. Russert Highway,’” a 2006 bill to name a Averill Park, N.Y., post office the “Major George Quamo Post Office Building” and the 2003 “Kate Mullany National Historic Site Act” to get national historic status for the New York home of an early female labor leader.

Clinton was a co-sponsor on 73 other pieces of legislation that became law, most notably the Lilly Ledbetter Fair Pay Act of 2009, which was approved before she resigned to become secretary of state, and a 2008 bill to improve veterans’ mental health care.

Significantly, of those 73 co-sponsored bills that became law, 25 were led by Republicans — and 17 of those GOP-led bills were introduced by members who have since left Congress. But Clinton’s close working relationship with Republicans in Congress began to fray during her years at State, both because fewer members knew her personally any more, and because of the rising partisanship of the Obama era.

The Ted Cruz Natural-Born Citizen Issue

The Ted Cruz Natural-Born Citizen Issue

Another Update: New Jersey judge rules in Cruz’s favor on “natural born citizen “issue. http://www.msn.com/en-us/news/politics/ted-cruz-is-us-citizen-judge-rules/ar-BBrHzpx?OCID=ansmsnnews11

Recent Update: In addition to the following information, please note that Ted Cruz has won a case before the Pennsylvania Supreme Court.

Texas Sen. Ted Cruz has won a case in Pennsylvania’s highest court that had challenged his eligibility to appear on the state’s GOP primary ballot and serve as president.

The state Supreme Court order Thursday upheld a lower-court judge’s decision to dismiss the case.

A Pittsburgh resident and registered Republican voter, Carmon Elliott, had argued that Cruz isn’t eligible to run for president or to appear on Pennsylvania’s April 26 primary ballot because he was born in Canada.

Commonwealth Court Judge Dan Pellegrini ruled March 11 that common law precedent and statutory history maintain that an eligible candidate includes any person born to an American citizen, regardless of where.

Elliott had acknowledged that Cruz’s mother was born in the United States and has been a U.S. citizen her whole life.


In the 2016 election many have challenged Ted Cruz’s ability to run for President since he was born in Canada and his father was Cuban. The United States Constitution requires the President and Vice-President to be a “natural born citizen” of the United States. Like the earlier “birther” complaints about Barack Obama supposedly being born in Kenya, the complaints about Cruz’ citizenship are heavy on noisy rhetoric and grossly short on logic.

Conspicuously, in spite of the numerous Republican opponents, nobody has successfully filed any court litigation on this point, for good reason. Cruz’ US citizenship deriving from his Delaware born mother’s US citizenship meets the statutory requirement for be a “natural born citizen.” (See Cruz’ mother’s birth certificate.) (And Ted Cruz’ Canadian birth certificate.) Several court cases have been filed and dismissed by the courts. http://www.newsday.com/long-island/politics/spin-cycle/lawsuit-challenging-ted-cruz-s-citizenship-status-dismissed-by-ny-court-1.11614047

There are two answers to why Ted Cruz is a US Citizen, a short answer and a complicated long answer.

Short Answer: There are two types of US citizenship, Natural Born and Naturalized. If the US federal law acknowledges you as a citizen without the need to go through the naturalization process, you are a natural born citizen. Ted Cruz has never been naturalized, he has been issued a US passport, therefore the US government deems him to be a natural born citizen.

Long Answer: The long answer starts out with the same logic as the short answer, but the details are filled out with specific references.

Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States, under clause 5:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

The Twelfth Amendment states, “No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” The Fourteenth Amendment does not use the phrase natural-born citizen. It does provide, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Under Article One of the United States Constitution, representatives and senators are required to be U.S. citizens, but there is no requirement that they be natural born.

Eight of the first nine presidents—Martin Van Buren being the exception—as well as early potential presidential candidates, were born as British subjects in British America before the American Revolution but were eligible for the office by virtue of having been citizens at the time that the Constitution was adopted.

Jus soli is a Latin term that means law of the soil.  Many countries follow the system of jus soli or more commonly known as, birthright citizenship. Under this concept, citizenship of a person is determined by the place where a person was born. Jus soli is the most common means a person acquires citizenship of a nation. Another system called jus sanguinis is when a person acquires citizenship through their parents or ancestors. The U.S. follows the jus soli system to determine citizenship.   What this means is that whoever is born in the U.S. and is subject to its jurisdiction is automatically granted U.S. citizenship. The Fourteenth Amendment, codified that judicial authorities recognize that the philosophy was integral at the conception of the country’s constitution.

Pursuant to 8 USCS § 1401, the following persons can acquire citizenship by jus soli:

A person born in the U.S., and subject to its jurisdiction.

  • A person born in the U.S. as a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.
  • A person of unknown parentage found in the U.S. while under the age of five year. The person can remain a U.S. citizen if it is not shown before s/he attains twenty five years that the person was not born in the U.S.
  • A person born in an outlying possession of the U.S. (i.e., including Puerto Rico, the old Panama Canal Zone, Panama, the Virgin Islands and Guam) of parents, one of whom is a citizen of the U.S. who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.

Jus soli” is common in developed countries that desires to increase their own citizenry. Although many countries follow general jus soli rules for citizenship, most also require that the parents also have citizenship of the country, or legal residency. The only countries that allow a child of any person who is physically born in a country to be a citizen are Cuba, Chile and the United States, hence the other 2016 election issue involving “anchor babies” and illegal immigration.

Most European countries follow the principle of Jus sanguinis. In general, citizenship is conferred by birth to a parent who is already a citizen of that country, or by naturalization in that country.  This is contrary to Jus Soli because the mere fact that a person is born there does not, in and of itself doesn’t confer citizenship.

If a country follows the “jus sanguinis” or right of blood system, you inherit a parent’s citizenship. So, if your father and mother were each from a different jus sanguinis nation and you were born in a jus soli jurisdiction, you would be able to claim citizenship in three countries.

There are, however, exceptions to a rule a country follows because of treaties with other countries such as children of foreign diplomats are recognized as being citizens of the country that sent their parents there.

Also, people born on a foreign flagship or airliner are entitled to claim citizenship in the country under whose flag the vessel was registered.

In Ted Cruz’ case, he was born in Canada, but his parents were citizens of Cuba and the United States respectively. Under Canada’s jus soli laws, Cruz would be entitled to claim Canadian citizenship if he so wished. He did not, and, in fact, affirmatively rejected Canadian citizenship a few years ago, when the issue first came up. Instead, Ted Cruz claimed US citizenship under his mother’s US citizenship, per jus sanguinas law. US statutes clearly allow a child born of a US mother overseas to claim his US birthright. Ted Cruz did this and was acknowledged by the United States government to be a US citizen and was issued a US passport.

One last issue, although Ted Cruz has affirmatively rejected his Canadian citizenship, some have asked whether he might also have Cuban citizenship, based on his father’s Cuban citizenship at the time of his birth. Chapter II Article 29 of the Cuban Constitution provides that a person born to a Cuban parent overseas can be a Cuban citizen, but only if they comply with Cuban law and affirmatively ask for that citizenship. So, both Ted Cruz and Marco Rubio might be eligible to ask Raul Castro for Cuban citizenship based upon their father’s Cuban citizenship. Don’t hold your breath. Absent that request, they are both US citizens.

 

Dear America – Advice from a Dear Friend

Dear AmericaWhen you have to be the one to tell your friend the squad hates her boyfriend

Posted by Clisare on Monday, March 21, 2016

And another Irish view of Trump 

Cruz Demands Medical and Psych Check of Trump

Quoting to an Examiner article,  see link below:

The ongoing saga between Republican front runner Donald Trump and Ted Cruz has continued, reaching new lows after a report in the National Enquirer claimed that the Texas senator had an affair with at least five women. After denying the reports, the Cruz campaign called for the release of Trump’s medical records.

 

After Trump threatened to release private information and “spill the beans” to Cruz’s wife Heidi, the Tea Party favorite has been in constant denial. Calling the allegations of a sex scandal from the National Enquirer “garbage,” Cruz’s campaign manager took to Twitter in an attempt to call out the billionaire real estate mogul, as reported by The Hill on March 25.

“MISSING #SleazyDonald: Why no events in 4 days; none planned for 8,” campaign manager Jeff Roe tweeted out shortly after 2:30 p.m. local time. Continuing, Roe asked, “Ever had psychological eval? What is hiding in medical records! Release!” The tweet highlights the fact that Trump has not made a public appearance since his threat on Tuesday night.

The Trump campaign has gone on the record to deny any truth that they leaked information to the National Enquirer about the alleged sex scandal, despite the accusation from Cruz. With the Republican National Convention just four months away, Trump is still considered the favorite with Cruz having an outside shot at a comeback. Ohio Gov, John Kasich is still in the race, but with only 143 delegates to his name, is not expected to last much longer.

 

http://www.examiner.com/article/cruz-campaign-calls-for-release-of-donald-trump-s-medical-records-mental-check