Comments on: Commentary: The government and gun rights http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Jack Moore http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13319 Jack Moore Mon, 03 Dec 2007 02:49:10 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13319 If 2e extends the right to keep and bear arms to (citizens) individuals then the clause in 2e ",shall not be infringed." must exclude all encroachments upon those rights(licensing,banning specific arms etc.), making such 'gun-laws' unconstitutional! Gun control IS the right to keep and bear arms. If 2e extends the right to keep and bear arms to
(citizens) individuals then the clause in 2e “,shall not be infringed.” must exclude all encroachments upon those rights(licensing,banning specific arms etc.), making such ‘gun-laws’ unconstitutional! Gun control IS the right to keep and bear arms.

]]> By: Sean Chisholm http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13237 Sean Chisholm Wed, 28 Nov 2007 14:14:38 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13237 Not necessarily. They might find that it doesn't "violate the Second Amendment rights of individuals" because those individuals have no such rights. Not necessarily. They might find that it doesn’t “violate the Second Amendment rights of individuals” because those individuals have no such rights.

]]> By: Robert Conrad http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13232 Robert Conrad Wed, 28 Nov 2007 11:35:13 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13232 The wording of the grant to cert suggests the Supreme Court considers it individual right: "Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” Notice is says "... violate the Second Amendment rights of individuals ..." So, they are determining whether or not the law violates these rights, not whether or not the right exists. The wording of the grant to cert suggests the Supreme Court considers it individual right:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

Notice is says “… violate the Second Amendment rights of individuals …” So, they are determining whether or not the law violates these rights, not whether or not the right exists.

]]> By: Andy Bohan http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13224 Andy Bohan Tue, 27 Nov 2007 18:51:54 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13224 If they rule it to be collective, what's to stop them from doing the same with the first amendment as well. I personally believe that it is an individual right, Government has powers, Citizens have rights. The Constitution clearly states how Government is run, the Bill of rights is all about the individual rights of US Citizens. Government does not need rights if it has powers, if you have power you've got it all. If they rule it to be collective, what’s to stop them from doing the same with the first amendment as well. I personally believe that it is an individual right, Government has powers, Citizens have rights. The Constitution clearly states how Government is run, the Bill of rights is all about the individual rights of US Citizens. Government does not need rights if it has powers, if you have power you’ve got it all.

]]> By: Robert Conrad http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13214 Robert Conrad Tue, 27 Nov 2007 12:15:03 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13214 All the talk of howitzers and grenades need not apply - as the Framers considered these ordinace, not arms. Ownership of other "crew served" armament (tanks, rockets) are also not protected. Anyone attempting to scare the public into tossing out the constitution's 2nd amendment based on the idea it allows their neighbor to own a nuke, is squarly mislead. USA Today poll has a 97% pro-individual rights result based on over 7,000 votes. Scanning all the various blogs, it appears the overwhelming opinion is the right of the people, not the right of the government. This may be because nearly any ordinary citizen could offer a simple explanation as to why the right of the people to own arms is protected. It requires a law professor to try and convolute an explain as to how the constitution's 2nd amendment does not cover the right of the people. Although that is not direct evidence in and of itself, it's still a note worthy observation. All the talk of howitzers and grenades need not apply – as the Framers considered these ordinace, not arms. Ownership of other “crew served” armament (tanks, rockets) are also not protected.

Anyone attempting to scare the public into tossing out the constitution’s 2nd amendment based on the idea it allows their neighbor to own a nuke, is squarly mislead.

USA Today poll has a 97% pro-individual rights result based on over 7,000 votes. Scanning all the various blogs, it appears the overwhelming opinion is the right of the people, not the right of the government.

This may be because nearly any ordinary citizen could offer a simple explanation as to why the right of the people to own arms is protected. It requires a law professor to try and convolute an explain as to how the constitution’s 2nd amendment does not cover the right of the people.

Although that is not direct evidence in and of itself, it’s still a note worthy observation.

]]> By: Stephen J. Mattingly http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13202 Stephen J. Mattingly Tue, 27 Nov 2007 03:59:54 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13202 I highly recommend Jack N. Rakove's article "The Second Amendment: The Highest Stage of Originalism" from the April 2000 Chicago-Kent symposium. It will give pause to some who clearly are convinced that the original understanding of the amendment wass that it would protect the rights of individuals to keep and bear arms for all purposes without substantial state regulation. Another interesting read is "A Well-Regulated Right: The Early American Origins of Gun Control" located at 73 Fordham L. Rev. 487, which details the extensive array of early gun regulations that no one saw as inconsistent with the Second Amendment or any stronger right in a state constitution. The original understanding of the amendment was simply not as one-sided as most here seem to assume. I highly recommend Jack N. Rakove’s article “The Second Amendment: The Highest Stage of Originalism” from the April 2000 Chicago-Kent symposium. It will give pause to some who clearly are convinced that the original understanding of the amendment wass that it would protect the rights of individuals to keep and bear arms for all purposes without substantial state regulation. Another interesting read is “A Well-Regulated Right: The Early American Origins of Gun Control” located at 73 Fordham L. Rev. 487, which details the extensive array of early gun regulations that no one saw as inconsistent with the Second Amendment or any stronger right in a state constitution. The original understanding of the amendment was simply not as one-sided as most here seem to assume.

]]> By: Benjamin P. Hayek http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13186 Benjamin P. Hayek Mon, 26 Nov 2007 16:30:32 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13186 With respect to Ms. G. Odonnell’s comment, I don’t believe that any serious proponent of “original intent” subscribes to her characterization of what actually goes into the process (e.g., “reading between the lines,” etc.). Rather, “original intent” folks recommend that – when the meaning of the text is unclear – one examine other sources available (e.g., “legislative history,” other contemporaneous texts on the subject, such as correspondence and the Federalist Papers, etc.). Hence, most “original intent” people focus first on the text alone, and then on other sources if the text is reasonably ambiguous. In other words, seances or other supernatural tools are not required to reasonably ascertain the Framers' intent. With respect to Mr. Ian Argent, I’d first note that my proposed “limiting principle” of “commonality” (which is by no means original with me) was offered in response to an invitation to provide one by Mr. McKewen. Needless to say, I think it an abundantly reasonable reading, supported by the text itself, the original intent of the Framers, and more contemporary scholarship on this issue. For example: “Arms were common,” writes Leonard Levy in his Origins of the Bill of Rights at 140 (2001), and notes on the next page Thomas Jefferson’s famous quip: “Let your gun therefore be the constant companion of your walks.” On 143 Levy continues: “Massachusetts in 1780 was the first to use the phrase ‘to keep and bear arms.’ John Adams was responsible for it; in his monumental two-volume defense of the constitutions of the States, he argued that arms in the hands of individual citizens are subject to their discretion to defend themselves.” And on 144, Levy notes that Samuel Adams argued that our Second Amendment “expressly provide that [the Amendment] could never be construed ‘to prevent the people from keeping their own arms,’” which was rather prescient given that our Supreme Court did precisely that in its subsequent (albeit sparse) Second Amendment jurisprudence. Thus, any objection turning on the mere existence of grenades, cannons, and warships (even if at least one of each was privately owned) has no logical force unless one can additionally show that any of those weapons was “commonly owned” at the time of Framing. Since none of them were, Mr. Argent’s objection is easily met and disposed with. Last, with respect to Mr. Fahey’s comment, I'll only note that any proposed theory of constitutional interpretation that requires “logical extensions” of any given concept is more deserving of a presumption of doubt than accuracy. To be sure, it has been by discarding the text, ignoring the Framer's intent, and relying on a chain of "logical extensions" that have led us to this curious state of affairs (i.e., one where interpreting a constitutional provision as simple and basic as the Second Amendment is now a deeply mysterious and puzzling task for many). In any event, I appreciate the comments and fondly look forward to the Supreme Court finally weighing in on these issues. With respect to Ms. G. Odonnell’s comment, I don’t believe that any serious proponent of “original intent” subscribes to her characterization of what actually goes into the process (e.g., “reading between the lines,” etc.). Rather, “original intent” folks recommend that – when the meaning of the text is unclear – one examine other sources available (e.g., “legislative history,” other contemporaneous texts on the subject, such as correspondence and the Federalist Papers, etc.). Hence, most “original intent” people focus first on the text alone, and then on other sources if the text is reasonably ambiguous. In other words, seances or other supernatural tools are not required to reasonably ascertain the Framers’ intent.

With respect to Mr. Ian Argent, I’d first note that my proposed “limiting principle” of “commonality” (which is by no means original with me) was offered in response to an invitation to provide one by Mr. McKewen. Needless to say, I think it an abundantly reasonable reading, supported by the text itself, the original intent of the Framers, and more contemporary scholarship on this issue.

For example: “Arms were common,” writes Leonard Levy in his Origins of the Bill of Rights at 140 (2001), and notes on the next page Thomas Jefferson’s famous quip: “Let your gun therefore be the constant companion of your walks.” On 143 Levy continues: “Massachusetts in 1780 was the first to use the phrase ‘to keep and bear arms.’ John Adams was responsible for it; in his monumental two-volume defense of the constitutions of the States, he argued that arms in the hands of individual citizens are subject to their discretion to defend themselves.” And on 144, Levy notes that Samuel Adams argued that our Second Amendment “expressly provide that [the Amendment] could never be construed ‘to prevent the people from keeping their own arms,’” which was rather prescient given that our Supreme Court did precisely that in its subsequent (albeit sparse) Second Amendment jurisprudence.

Thus, any objection turning on the mere existence of grenades, cannons, and warships (even if at least one of each was privately owned) has no logical force unless one can additionally show that any of those weapons was “commonly owned” at the time of Framing. Since none of them were, Mr. Argent’s objection is easily met and disposed with.

Last, with respect to Mr. Fahey’s comment, I’ll only note that any proposed theory of constitutional interpretation that requires “logical extensions” of any given concept is more deserving of a presumption of doubt than accuracy. To be sure, it has been by discarding the text, ignoring the Framer’s intent, and relying on a chain of “logical extensions” that have led us to this curious state of affairs (i.e., one where interpreting a constitutional provision as simple and basic as the Second Amendment is now a deeply mysterious and puzzling task for many).

In any event, I appreciate the comments and fondly look forward to the Supreme Court finally weighing in on these issues.

]]> By: Lee Liberman Otis http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13184 Lee Liberman Otis Mon, 26 Nov 2007 16:22:31 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13184 Do you have the quote for what Mukasey said in "vow[ing] political independence from White House influence", including the context in which the statement you are referring to was made? I would be very surprised if then-Attorney General designate Mukasey said anythign that would preclude consultation with the White House through the proper channels (e.g. SG or Deputy AG with White House Counsel or Deputy Counsel) on what position the Department plans to take before the Supreme Cout on a novel constitutional question. That kind of consultation took place routinely under Ronald Reagan, George H.W. Bush and Bill Clinton as well as this President. It's one of the reasons we have elections. Do you have the quote for what Mukasey said in “vow[ing] political independence from White House influence”, including the context in which the statement you are referring to was made? I would be very surprised if then-Attorney General designate Mukasey said anythign that would preclude consultation with the White House through the proper channels (e.g. SG or Deputy AG with White House Counsel or Deputy Counsel) on what position the Department plans to take before the Supreme Cout on a novel constitutional question. That kind of consultation took place routinely under Ronald Reagan, George H.W. Bush and Bill Clinton as well as this President. It’s one of the reasons we have elections.

]]> By: peter tammaro http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13167 peter tammaro Mon, 26 Nov 2007 01:59:31 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13167 SCOTUS WILL strike down the D.C. Law beacause it is UNREASONABLE and ARBITRARY...the day WILL come when U.S citizens will be forced to defend their lives with their privately owned weapons..... SCOTUS WILL strike down the D.C. Law beacause it is UNREASONABLE and ARBITRARY…the day WILL come when U.S citizens will be forced to defend their lives with their privately owned weapons…..

]]> By: Ian Argent http://www.scotusblog.com/2007/11/commentary-the-government-and-gun-rights/#comment-13159 Ian Argent Sun, 25 Nov 2007 16:41:20 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-the-government-and-gun-rights/#comment-13159 "Stephen P. Halbrook uses the phrase “firearms and other common hand-carried arms,” which I believe (obviously) encompasses rifles, shotguns, and handguns, all of which were “common” at the time of framing. Since Howitzers, grenade launchers, and small thermonuclear devices were not “common” (the didn’t exist) at the time of framing, these are obviously excluded by the original intent. And since none of those items are “common” in the present-day context, even “the living Constitution” excludes them, too. So, I’d argue, the limiting principle is the commonality of the firearm.:" Unfortunately, you're incorrect in at least a couple of points. There were contemporaneous examples of privately owned cannons, and even warships (as the Constitution accepts - a letter of Marque and Reprisal is useless without the ability to use it - which requires a warship). Likewise, the "grenades" of the period were able to be privately owned, etc. I don't like arguements based on the "destructive power" of current armaments as opposed to those of the era of the Founding Fathers, because of the inherebt applicability to other rights (such as the 1st amendment). “Stephen P. Halbrook uses the phrase “firearms and other common hand-carried arms,” which I believe (obviously) encompasses rifles, shotguns, and handguns, all of which were “common” at the time of framing. Since Howitzers, grenade launchers, and small thermonuclear devices were not “common” (the didn’t exist) at the time of framing, these are obviously excluded by the original intent. And since none of those items are “common” in the present-day context, even “the living Constitution” excludes them, too. So, I’d argue, the limiting principle is the commonality of the firearm.:”

Unfortunately, you’re incorrect in at least a couple of points. There were contemporaneous examples of privately owned cannons, and even warships (as the Constitution accepts – a letter of Marque and Reprisal is useless without the ability to use it – which requires a warship).

Likewise, the “grenades” of the period were able to be privately owned, etc.

I don’t like arguements based on the “destructive power” of current armaments as opposed to those of the era of the Founding Fathers, because of the inherebt applicability to other rights (such as the 1st amendment).

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