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Tuesday, April 7, 1999

Smokey Briggs


By Smokey Briggs

Second Amendment

is fundamental

I don't often have good things to say about judges especially federal judges.

This week I do.

Last week, Judge Sam Cummings, federal judge for the Northern District of Texas, handed down a ruling concerning the Second Amendment that makes sense.

The Second Amendment to the United States Constitution reads as follows: "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."

According to the Associated Press report, this particular case involved a San Angelo doctor who ran afoul of a federal law that makes it illegal for someone involved in a contested divorce to own a handgun.

Judge Cummings ruled that the federal law violated the doctor's constitutional rights under the Second Amendment.

This ruling has the potential to be a landmark case for the Second Amendment and all of constitutional law.

Now constitutional law, unfortunately, is no simple subject. Two-hundred-plus years of judicial/political tinkering has created a lot of confusion.

When the Constitution, and soon thereafter the Bill of Rights, was adopted, it was understood that constitutional restrictions on government only applied to the federal government.

The personal freedoms guaranteed by the Bill of Rights were guarantees of protection from the federal government, not the individual state governments.

The general consensus was that as long as the federal government was prohibited from infringing on these rights, citizens would be able to monitor these same rights within their own states.

As a last resort, it was thought, citizens could "vote with their feet" if they felt their state was infringing on their rights, and move to a state with different laws.

Of course, many state constitutions provided protections similar to the Bill of Rights.

The 1868 ratification of the 14th Amendment (which provided for due process and equal protection under the law for all) began a change in constitutional law.

Since its adoption, the Supreme Court has gradually interpreted the 14th Amendment as applying constitutional restrictions to the state governments as well as the federal government.

During this gradual interpretation, the Supreme Court set forth that the 14th Amendment only applied to those rights that were deemed "fundamental."

Since this process began, the question has always been just what is a fundamental right?

The textbook definition of a fundamental right are those rights that are mentioned in the text of the Constitution and the amendments, and also those rights judged to be "implied" because they are fundamental to freedom.

Most of the first ten amendments have been found to be fundamental protections of individual rights.

Except for the Second Amendment.

Those that oppose an armed citizenry most often put forth two arguments.

First, they argue that the Second Amendment is not a "fundamental" right. As we have seen, the concept of a fundamental right has been defined to some degree.

The fact that the framers of the Constitution made such specific textual reference to a right to keep and bear arms is powerful evidence that the Second Amendment touches on some fundamental, individual right.

The second argument usually put forth is that, "Well, maybe it is fundamental, but the right protected by the Second Amendment is the right to have a militia like the National Guard."

This is the argument used by the federal prosecutors before Judge Cummings.

The problem with this argument is that it does not make sense.

Why would the founding fathers have been so worried about having a national guard that they would include a provision for it as the Second Amendment to the Constitution?

Why would they include a provision for a national guard in the "Bill of Rights", a set of amendments specifically aimed at safeguarding the rights of the individual person?

There are no good answers to these questions.

The only basis for this "national guard" argument is the use of the word "militia" in the Second Amendment text.

A quick check of the definition of "militia" as used when the Constitution was written reveals that "militia" referred to every able bodied man who could tote a rifle.

Yes, the authors of the Second Amendment were concerned with a militia a militia composed of all able-bodied men and a militia that was not at the beck and call of the national government.

Clearly, when it was ratified, the Second Amendment was intended to protect the right of the individual to keep and bear arms.

Given history's chronicle of mans' attempted tyranny over his fellow man, this makes sense.

The authors of the Constitution and the Second Amendment realized that the only true protection of mans' God given rights was the one they had recently used free, armed men banded together to fight tyranny.

The Second Amendment was their attempt at making sure that, should the need ever arise again, the people of the United States would be armed and capable of standing up to oppression in any form.

Which brings us to the significance of Judge Cummings' ruling.

According to the Associated Press report, Judge Cummings has ruled that the Second Amendment is a fundamental right.

As a fundamental right, the right to keep and bear arms is elevated to a status shared by such rights as freedom of speech and the free exercise of religion. Also, as a fundamental right, it is applicable to the states as well as the federal government through the 14th Amendment.

More importantly Judge Cummings states that, "A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right."

The federal prosecutors plan to appeal the ruling.

Whether Judge Cummings' ruling will prevail in the Fifth Circuit Court of Appeals remains to be seen.

Even more interesting will be whether the Supreme Court elects to hear the case if it is appealed past the appellate court.

If the Supreme Court hears the case, it may be forced to rule on what the Second Amendment does or does not say something the Court has carefully avoided.

More than likely, the current Supreme Court will refuse to hear such a politically charged case.

In any case, it should be heartening to free people everywhere that at least one federal judge is capable of making such a common sense ruling regarding a constitutional right.

EDITOR'S NOTE: Smokey Briggs is the editor and publisher of the Pecos Enterprise. He can be e-mailed at:

Your View

Public hearing important to all area residents

This Friday is the day. The public hearing for the Draft Environmental Impact Statement  for the Realistic Bomber Training Initiative will be held in Pecos at the Pecos High School Cafeteria at 5:00 p.m. to 9:00 p.m.

Copies of the Draft EIS are available at the Reeves County public library. This is a beautifully written document. We have noticed a great improvement in the last few EIS's as the military is making a greater effort to "sell" these proposals to an increasingly more knowledgeable and less tolerant public. This Draft is a result of the public input over this proposal and previous ones. Only trouble is the military just gives "lip service" to all of the areas that people have complained about without any reasonable solutions. They feel that if they just address the problems they have complied with the National Environmental Policy Act.

Our industrial noise consultants have told us that all of the military's aircraft pollution and noise technical data is a farce and a fiction. They continue to use pollution figures with a mixing height of 5,000 feet for planes flying as low as 200 to 500 feet above ground level. Go figure. They leave out the real impacts of the gale force winds, pollution and the startle effects of that altitude. You get the same explosive effect as with the jet fighters except that with the bombers you'll have a whole 1/3 of a second warning.

When you take this explosion, spread it out over 24 hours and then average it over a 30-day period like the data the military continues to use hey it's not all that bad.

We want the best trained military possible. Locating these Low-level Realistic Combat Training Flights over populated private property or any human environment is UNREASONABLE.

As the military keeps taking over more and more airspace, they have a history of using Environmental Assessments (in order to avoid the scoping process) in lieu of the required Environmental Impact Statements for Major Federal Actions. They refuse to do a Programmatic EIS to expose the accumulative effects of all of these proposals and illegally continue to do it piecemeal (bring in more planes ... take over airspace .. bringing more planes .. take more airspace, etc.)

Because the military has had so much trouble becoming NEPA compliant, they now control the Federal Aviation Administration. They have created a situation of the military "Fox" guarding the navigable airspace "Hen house" which is bad news for us chickens.

The NEPA process only works if the public participates. You are required to make comments and exercise your rights. Once they build those emitter and scoring sites we will never get West Texas back. There is no sunset clause on these proposals and nothing to stop them from adding more flights and airspace later. If you are not directly under one of these routes right now remember these planes have a history of not staying on their routes and will have a deteriorating effect over our whole area.

We urge everyone to attend the public hearing and/or send in comments to the RBTI before May 2, 1999 to become part of the Final EIS. For more information contact the Trans-Pecos Protection Group at (915) 364-2323.

P.O. Box 605
Alpine, Texas 79831

Information offered on military training flights

I am writing to provide information and analysis based on the Environmental Impact Statement with a focus on Alternatives B and C, which include segments of Military Training Route 178 in Reeves and Loving County. Both alternatives include up to 10 flights at an altitude of 400 feet for B-1 and B-52 bombers. Alternative A, which represents no change from the present baseline for four flights per day, is hypothetical in that residents of the affected areas report that there is not a consistent history of flights in those segments that would form an actual history for noise and pollution.

Although the Draft acknowledges that a B-1 creates a decibel level of 117 at 300 feet and a B-52 creates decibel level of 110 at the same altitude above ground level, it creates a methodology defined by the Defense Dept. that devalues that effect. "The cumulative metric, DNL ... Is a 24-hour average A-weighted sound level measure. DNL sums the individual noise events and averages the resulting level over a specified length of time. It is a composite metric accounting for the maximum and the number of events." The methodology averages noise events over a week and a month, which I think tends to create an interpretation that avoids focus on the peak intensity of the moment of loudest decibels, and I assume includes periods when no planes are present. "L dmnr is the monthly average of the Onset-Rate Adjusted Day-Night AVerage sound Level (DNL). For this EIS, all noise levels were calculated using L dmnr." The executive summary states that "Noise levels would not exceed levels likely to damage structures," but residents underlying the flight path are best qualified to report actual experience.

The Draft states that DNL will not exceed 62 on Military Training Route 178 and defines a 65 DNL as the ]threshold for an adverse finding.

The Draft states that "aircraft emissions produce minimal quantities of criteria pollutants and ground level concentration of pollutants are fractions of federal and state standards." Table F-1 in the Appendices gives estimated tons per year amounts for carbon monoxide, volatile organic compounds, nitrogen dioxide, sulfur dioxide, and particulate matter for the air quality control region (AQCR) in which our counties lie. Tables F-2 provides estimates under Alternate B (Lancer) and Alternative C (Texon), named after the military operations area for each alternative. Alternative B, in general, doubles the amount of pollutants, and Alternative C, somewhat less that doubles the pollutants. The Draft states "the total annual emissions of criteria pollutants would increase in AQCR 153, 210,211, and 218, with the greatest amount of change in ACQR 218." Reeves and Loving Counties lie in ACQR 218. The Draft states that Multiple-AirCraft Instantaneous Line Source (MAILS) modeling confirms that Alternatives B and C would not cause excesses for National Ambient Air Quality Standards or Prevention of Significant Deterioration Class I standards. We should note that the MAILS calculations are based on pollutant samples taken at 5,000 feet above ground level, which tend to obscure pollutant levels at actual flight altitudes of 400 feet in our counties.

The Draft does not disclose the effect on people, animals, crops and water resources of dumping excess fuel before returning to base. The Draft makes no attempt to evaluate the effect of pollutants on soil and water resources. What is the long-term effect of repeated flights? Do pollutants eventually degrade the underground potable water supply? It would be in the interest of the local economy to discover existing studies on this question. I am not aware of any studies on this question. I am not aware of any studies indicating damage to food crops, and the local farmers have not expressed any concern on this question.

The Draft concludes that there are "no disproportionate impacts to minority and low-income populations." Federal law prohibits the federal government from actions that would harm Hispanic and low-income people more than any other groups. The Draft defines the poverty level as $12,674 for a family of four. The Draft concludes " The review of the area established that no populations of any kind, including minority or low-income populations, would be subject to noise levels of 65 DNL or higher under any alternative. As such, minority and low-income populations would not be adversely affected. For this action, no further assessment of environmental justice is warranted." In effect, the Draft creates a standard defining no one as being harmed so we don't have to look at the issue of environmental justice. As an additional example of the Draft's creation of standards that avoid having to deal with troublesome issues, it states "communities included in this analysis consist of those denoted as incorporated or as county seats and those as large as county seats." This avoids having to examine issues affecting Saragosa, Orla, and Mentone because these communities are not incorporated.

It concerns me that the Air Force has had a year to prepare this Draft and we have had about two weeks to study its approximately 400 pages prior to the meeting on Friday, April 9 when we are allowed to request modifications to the environmental impact statement. It concerns me that the Air Force intends to manage the audience by 45 minutes of displays and extended statements thereafter. You will be allowed three minutes to respond to the complex issues in the draft. Does the Air Force intend to respond to questions regarding the draft?


Family wants fairness in out-of-state court

On Tuesday, my brother (Jose T. "Joey" Herrera Jr.) traveled to Davidson County, Tennessee for a Bond Hearing before Judge Cheryl Blackburn, as he promised to Judge Lee S. Green. The Bond Hearing entailed the presentation of some 50 reference letters from friends, family, and leaders of our community regarding my brother's reliability to appear before the court in Tennessee in subsequent proceedings. In the Bond Hearing proceeding the Judge set Bond at $500,000. In order for my brother to make bond, the family with the help of family and friends, must deliver 10% or $50,000 to a bonding company in Tennessee. On Tuesday afternoon, Slater Bonding Company, Inc. of Nashville was willing to post the entire $500,000 bond. However, on Wednesday morning, information was released which caused the Slater Bonding Company to reduce their commitment to only $250,000.

In the continuation of my brother's Bond Hearing on Wednesday, the Judge was informed that the family was prepared to forward $50,000 for the bonding fee and would pledge, with the assistance of family and friends, an additional $800,000 worth of property and promissory notes as collateral to secure the bond. However, because Slater Bonding Company had reduced its commitment the attorneys for my brother proposed that the bond be set at $275,000, with $25,000 being deposited directly with the Davidson County Court. The judge denied this proposal.

On Thursday morning, I was informed that the Slater Bonding Company was now declining to post any bond for my brother in this case. So, we are left with the 10% of the bond amount and the collateral property of family and friends and NO Tennessee bonding company willing to post the bond.

I do not know my brother's business, whether he is guilty or innocent of the charges it is for a jury to decide, but I do know he is entitled to make bail. My brother is not going to run. Our family has pledged everything we have plus with family and friends who they too have pledged their resources.

If my brother has made mistakes, he will have to answer for them, however, he should not be denied a bail bond, solely because the court in Tennessee feels that he is a flight risk.

My mother and father are devastated by this whole ordeal, but through God's help and guidance, and because of all the people who have us in their prayers, showing their love and kindness, we will make it through this. Guilty or innocent, Joey is still my brother and setting the bond at $500,000 for an out-of-state U.S. resident has essentially had the effect of not allowing him to make bail. The bond for the co-defendants in this case was set at $250,000, because they are from Nashville, Tennessee. they have clearly put him the same category as the Mexican Nationals. Our family has many ties to this community. This is about more than Joey now, this is about the honor of our family and I assure you that Joey will not run. We have the money to pay the bonding fee and the collateral to secure the bond. What we do not have is a Tennessee bonding company that is willing to post the bond.


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