To: lew@kpix.cbs.com,complaints-enf@fcc.gov
Subject: Dan Rather's Second Amendment Lies
From: webmaster@rkba.org


PLEASE INCLUDE IN YOUR PUBLIC FILE


Dan Rather's 8/2/99 CBS Evening News piece on the Second 
Amendment was a deliberate distortion and a disservice to the 
community.  Biased reporting on an important Constitutional issue
like this does not belong on the airwaves.  I urge everyone 
reviewing KPIX license renewal to take this into consideration.

Rather claims the Second Amendment and Militia refer to 
collective federal and states' rights and not individual rights. 
This is completely counter to many widely-available writings of 
the America's Founders.  Consider for example Alexander Hamilton's 
statement in Federalist Paper No. 29:

  Little more can reasonably be aimed at, with respect
  to the people at large, than to have them properly
  armed and equipped  [1]

Or James Madison in Federalist 46:

  Notwithstanding the military establishments in the
  several kingdoms of Europe, which are carried as far
  as the public resources will bear, the governments
  are afraid to trust the people with arms.  [2]

Or Thomas Jefferson in his June 1776 draft of the Virginia 
Constitution:

  No freeman shall ever be debarred the use of arms.

Consider also the current legal definition of the militia under 
Title 10 Section 311 of the United States Code:

  United States Code (USC)
  
  TITLE 10--ARMED FORCES
  
  Section 311. Militia: composition and classes
  
    (a) The militia of the United States consists
  of all able-bodied males at least 17 years of age
  and, except as provided in section 313 of title
  32, under 45 years of age who are, or who have
  made a declaration of intention to become, citi-
  zens of the United States and of female citizens
  of the United States who are commissioned of-
  ficers of the National Guard.
    (b) The classes of the militia are--
      (1) the organized militia, which consists of
    the National Guard and the Naval Militia;
    and
      (2) the unorganized militia, which consists
    of the members of the militia who are not
    members of the National Guard or the Naval
    Militia.  [3]
  
See also the historical meaning from the debates about the 
ratification of the Constitution:

  "I ask, Who are the militia?  They consist now of the
  whole people, except for a few public officers."

  -- George Mason (1725-1792), in the Virginia Convention 
  on the ratification of the Constitution, June 16, 1788, 
  in _Debates in the Several State Conventions on the 
  Adoption of the Federal Constitution,_ Jonathan Elliot, 
  ed., v.3 p.425 (Philadelphia, 1836)


  What, sir, is the use of a militia?  It is to prevent 
  the establishment of a standing army, the bane of 
  liberty.

  -- Rep. Elbridge Gerry (1744-1814) (Mass.), Annals of 
  Congress, vol.I, p.750, August 17, 1789


  "That the said Constitution shall never be construed 
  to authorize Congress to infringe the just liberty of 
  the press or the rights of conscience; or to prevent 
  the people of the United states who are peaceable 
  citizens from keeping their own arms..." 

  -- Samuel Adams  (1722-1803), in_Debates and Proceedings 
  in the Convention of the Commonwealth of Massachusetts,_ 
  pp.86-87, (Pierce & Hale, Boston, 1850), also in 
  Philadelphia_Independent Gazetteer,_ August 20, 1789

Dan Rather also incorrectly proposes that the most recent U.S. 
Supreme Court decision to directly address a Second Amendment 
issue, U.S. v. Miller, advocates a collective rights 
interpretation.  This false interpretation is not supported by 
any reasonable reading the actual decision text.  [4]

In Miller, the Court was responding to an argument that personal
ownership of a short-barreled shotgun was protected by the Second
Amendment.  The Court's question was whether a short barreled 
shotgun was useful as a militia weapon -- that it had "some 
reasonable relationship to the preservation or efficiency of a 
well regulated militia."  In fact they are, as reflected by their 
military use through World War I and continuing through today.  
No real defense was presented in the Miller case, so that well-
known contemporary fact was never raised.  However it is clear 
that semi-automatic versions of current military rifles, such as 
those being banned in California, are ideally suited as militia 
weapons and would likely pass the Miller test.

An individual rights interpretation is also reflected in several
recent Supreme Court rulings:

  "The people" protected by the Fourth Amendment, and by the
  First and Second Amendments, and to whom rights and powers
  are reserved in the Ninth and Tenth Amendments, refers to 
  a class of persons who are part of a national community or
  who have otherwise developed sufficient connection with 
  this country to be considered part of that community.
 
  -- U.S. v. Verdugo-Urquidez, 1990  [5]

  If, however, the Second Amendment is read to confer a 
  personal right to "keep and bear arms," a colorable 
  argument exists that the Federal Government's regulatory 
  scheme, at least as it pertains to the purely intrastate 
  sale or possession of firearms, runs afoul of that 
  Amendment's protections....  Marshaling an impressive 
  array of historical evidence, a growing body of scholarly 
  commentary indicates that the "right to keep and bear arms" 
  is, as the Amendment's text suggests, a personal right.

  -- Printz v. U.S., 1997  [6]

The March 30, 1999 U.S. District Court case from Texas, U.S. v.
Emerson [7] contains a spirited and thorough defense of the 
Second Amendment as an individual right, along with other 
fundamental Constitutional rights recognized in the Bill of 
Rights.  The decision cites much recent legal scholarship and 
judicial history and I can recommend it as a useful summary 
of Second Amendment law and history.  Because of the issues it 
raises, Emerson may well lead to a new Supreme Court case 
directly addressing the Second Amendment.

Dan Rather's presentation on the Second Amendment is clearly
inaccurate, and it is a disservice to the local and national
community.

Sincerely,

Jeff Chan
__

References:

1. http://lcweb2.loc.gov/const/fed/fed_29.html

2. http://lcweb2.loc.gov/const/fed/fed_46.html

3. http://www.access.gpo.gov/congress/cong013.html

4. U.S. v. Miller, complete new research is available at:

   http://rkba.org/research/miller/Miller.html

5. U.S. v. Verdugo-Urquidez

   http://rkba.org/judicial/verdugo-urquidez.txt

6. Printz v. U.S., Justice Thomas concurring

   http://supct.law.cornell.edu/supct/html/95-1478.ZC1.html

7. Emerson v. U.S., U.S. District Court, Texas, March 30, 1999

   http://www.txnd.uscourts.gov/PDFs/emerson.pdf


Further references on request.

--
Jeff Chan
mailto:webmaster@rkba.org  *  http://rkba.org/
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