The following article appeared in the May 20, 1996 issue of The New Gun Week. Permission to reproduce in computer message and file bases granted. Copyright © 1996 by J. Neil Schulman. All other rights reserved.

The Unconstitutional
Bill of Rights

by J. Neil Schulman

What does it mean to be an American?

This is a question patriots are going to have to start asking themselves, seriously, for the first time since the end of the Civil War on April 9, 1865, six score and eleven years ago.

That war, the most costly in American lives of any in U.S. history, was made inevitable by the decision of the Supreme Court of the United States announced on March 6, 1857 in the case of Dred Scott v. Sanford. Scott was a slave purchased by a U.S. army surgeon, John Emerson, in 1833, while in the slave state of Missouri. In 1834, Scott accompanied Emerson to Illinois, a free state, and thereafter to the northern part of the Louisiana Purchase, a free territory. The two returned to Missouri in 1838. In 1846, Emerson having died and title to the slave Dred Scott having passed to John F.A. Sanford of New York, Scott sued the out-of-stater Sanford in Federal court, his antislavery lawyers arguing that because Scott had been a resident in a free state and a free territory, he was a free man. The Supreme Court ruled in the Dred Scott case that Negroes were not citizens of the United States and did not have legal standing to sue in the federal courts.

"Standing," in the legal sense, is the first issue that any court must look at as a legal issue. Could a lawyer go into court representing a redwood tree's right not to be cut down? The court would first have to decide whether the tree had legal standing to bring a petition or lawsuit to the court. Does a fetus have the right to sue a mother to prevent the mother from aborting? The court would first have to decide whether the fetus was an "it" or a legal person. The Supreme Court in Dred Scott asserted that Scott was not a "he" but an "it": mere property.

The Supreme Court having ruled on March 6, 1857 that the Constitution of the United States allowed slavery, and that the American Declaration of Independence was incorrect when it stated on July 4, 1776 that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," it was a matter of a short four years and five weeks before the conflict between those Americans who believed that the Declaration of Independence applied to all men found themselves in a shooting war with those who believed it applied only to white men, when pro-slave-state Confederates fired on Fort Sumter on April 12, 1861.

One can easily argue that the decision by President Abraham Lincoln to preserve the jurisdiction of the Constitution of the United States over Southern States who had voted to secede was a Pyrrhic victory, in that it was brute force rather than love of liberty which defeated the South - and the balance of power between the states and the federal government has never been right since. Nevertheless, the Southern States had also first seceded from Britain under the Declaration of Independence's premise, "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Dred Scott was not consenting to be a slave. The Southern states could try to secede from the Constitution of the United States. They could not secede from Dred Scott's natural rights as stated in the Declaration of Independence.

Why this history lesson? Why now?

We have had controversial Supreme Court decisions in the years since the Dred Scott case. Brown v. Board of Education. Roe v. Wade. But there now comes a case as important as Dred Scott, and it cannot be allowed to stand without forcing American patriots who love liberty to ask themselves what sort of country the United States of America has become, where an obvious right, enshrined in the Constitution of the United States, can be summarily dismissed by a federal appellate court on the same grounds as the Dred Scott case: that a citizen of the United States doesn't have standing to bring suit in federal court when officials violate his constitutionally protected rights.

The case is Hickman v. Block, and the ruling was announced April 5, 1996 by the United States Court of Appeals for the Ninth Circuit.

Douglas Ray Hickman, owner of a Southern California security firm, had repeatedly applied for a license to carry a concealed firearm, and had repeatedly been denied, by public officials including Los Angeles County Sheriff, Sherman Block. The merits of Hickman's applications are no longer at issue, since Hickman later obtained such a license from the City of Los Angeles as part of a separate lawsuit filed in California state courts. But Hickman first sued in federal court, citing his right under the Second Amendment to "bear arms." The Second Amendment to the Constitution of the United States 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." The sole question remaining before the Court of Appeals for the Ninth Circuit when it issued its ruling was: did Douglas Ray Hickman have legal standing to sue in federal court for any injury that might arise from violation of his rights under the Second Amendment?

The United States Court of Appeals for the Ninth Circuit said no. It said, "Hickman lacks standing to sue for a violation of the Second Amendment." The Court's reason? "The question presented at the threshold of Hickman's appeal is whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arms. We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action."

The ruling was issued by a three-judge panel of the Ninth Circuit: Cynthia Holcomb Hall, John T. Noonan, and William B. Shubb. Before Hickman asks the Supreme Court of the United States to grant a further hearing, Hickman's attorneys will ask the complete Ninth Circuit to take another look at the case. They could do so or not. The Supreme Court of the United States could issue a summary affirmation of the Ninth Circuit's ruling, or it could deny certiorari -- which means they could decide not to listen to the case and let the ruling stand as the law of the land for the federal district in which the lawsuit was filed -- or the Supreme Court could agree to hear this case and tell us whether Douglas Ray Hickman has as little standing to ask for his rights as Dred Scott, which is what the Court of Appeals for the Ninth Circuit has ruled.

There are at least seventy million Americans now living to whom this question is not theoretical but immediate and meaningful: they are the seventy million Americans who are estimated to own guns. That is about half the adults in the United States, a much larger part of the population than the ethnically black African population of the United States on March 6, 1857. If a federal appeals court can get away with telling seventy million Americans that they don't know how to read a plain English sentence with a single unrestricted clause in it -- "the right of the people to keep and bear arms shall not be infringed" -- and that the authors of the Bill of Rights were illiterates who wrote "people" when they really meant "states" ... then what?

Another Civil War four years and five weeks from now? A mass protest movement equivalent to the Civil Rights protests of thirty years ago? Mass civil disobedience, as gun-owners find themselves subject to the legislative whims of the Charles Schumers and Dianne Feinsteins in Congress, and the Bill and Hillary Clintons in the White House?

Make no mistake: this court ruling was decided on political grounds, not judicial grounds. It will take a political mass movement to overturn it. This election year is as good a time as any to start.

The candidates for president, and for Congress, must be shown this decision and they must take a position on it. They must have questions shouted at them about it at press conferences and signs asking them about it at their public rallies. The presidential candidates must be asked whether they will appoint federal judges who will rule that there is an individual right to keep and bear arms under the Second Amendment. Candidates for the United States Senate must be asked whether they will vote to confirm an appointment of a candidate who does not pledge to support the Second-Amendment.

You see, we patriots have to start deciding what we are going to do if we find ourselves with no Second Amendment. There are already legislative and court attacks on the rest of the Bill of Rights: anti-terrorism legislation which attacks the Fourth, Fifth, and Sixth amendments; a Communications Decency Act which threatens the First Amendment. Ultimately, protections written on parchment are only as good as the will, and power, of the people to enforce them.

Are you willing to live in a United States of America where you have no legal standing to sue for violation of your Constitutional rights? If you are, you and I have nothing further to discuss.

But if you are not willing to live in a country where a federal court can say you have as few rights as a slave -- then what are you willing to do about it?


Update, October, 1996: On October 6, 1996, in the beginning of its 1996 session, the Supreme Court of the United States denied Hickman's Petition for a Writ of Certiorari, refusing to review the Ninth Circuit Court of Appeals ruling that a citizen of the United States has no standing to claim violation of his rights under the Second Amendment to the United States Constitution.

Recently, in Australia, new legislation was passed which requires Australians to surrender to the government all handguns, and semi-automatic rifles and shotguns, with severe criminal penalties for not doing so after a period of amnesty. The Australian Department of Justice at Victoria posted a FAQ (Frequently Asked Questions) on its website at . The website is also fascinating in that it also includes information on what places and times firearms may be surrendered to the government, and every page carries the Orwellian-sounding legend, "We need to comply."

The following question and answer may provide some perspective on the Hickman decision:

Q. But surely people have the right to own firearms?

There is no right enshrined in the Australian constitution to carry arms nor does Australia have a Bill of Rights similar to the United States of America. Having a firearms licence is a privilege just as a driver licence is and there are responsibilities attached to that privilege.

If you're interested in one possible long-term outcome of the Hickman decision, click here.

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