Preview: The Second Amendment case

Lyle Denniston | Friday, November 2nd, 2007 6:05 pm

Nearly seven decades ago, the Supreme Court analyzed the meaning of these words: “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.” Those are the words of the Second Amendment, written into the Constitution on Dec.15, 1791. The Court has not examined the meaning of those words since the ruling in U.S. v. Miller, on May 15, 1939. The debate over what the Court meant — and over what those words mean — has continued with growing intensity. Still, the Court has refused repeatedly to resolve the constitutional debate. The occasion for it to do so may have arrived. Both sides, in District of Columbia v. Heller (07-290), have asked the Court to grant review. The case is a pure, and outwardly simple, test of the Second Amendment — although there are complications that might limit the scope of any final decision. The Court is expected to take its first look at the Heller case at its private Conference on Friday, Nov. 9. At the same time, the Court will consider a cross-appeal, Parker v. District of Columbia (07-335), by five District of Columbia residents seeking to enter the case as parties. The post below previews the Court’s examination of the two appeals.

Background

“Guns” – a single word, but one that is powerfully packed with controversy, and with social and political meaning. In America’s culture wars, that word is as capable of stirring up emotions as is the word “abortion” or the simple phrase “gay rights.” Americans have been arguing about access to guns since before they had a national government and a federal Constitution. And their English forebears were at odds over that issue even before the reign of Charles II in the middle 1600s. It is part of the American heritage, and of the American national psyche, to be agitated over guns.

Harvard law professor Mark Tushnet has written that “the fights over the Second Amendment are really about something else…about how we understand ourselves as Americans.” The Supreme Court, if it agrees to hear the District of Columbia controversy, will not even attempt to supply such an understanding. At most, it would provide only a legal – a constitutional – definition. It has the option, it it takes on the controversy, of ruling on a grand scale, or on a quite modest one. Whatever it may be able to do — and however divided a final decision might be — that review, if undertaken, could shape in a significant way what it means to talk of, or legislate about, “gun rights.”

The 1939 case of U.S. v. Miller was about a double-barrel, 12-gauge shotgun. carried from Claremore, Okla., to Siloam Springs, Ark., by Jack Miller and Frank Layton, apparently in violation of a federal gun registration law. Miller and Layton defended themselves by claiming a Second Amendment right to have the gun. They lost their case in a unanimous Supreme Court decision. The exact meaning of that ruling is still very much in dispute. The new case of District of Columbia v. Heller is about a handgun, a pistol, that Dick Anthony Heller would like to keep in his home in Washington, D.C. He tried to register it with the city, but was turned down — the city has banned the registration, and thus the possession, of all privately owned handguns. Heller, like Jack Miller and Frank Layton, argues that he has a Second Amendment right to have the gun in his home for self-defense; he says he lives in a high-crime neighborhood. Heller, so far, is winning.


The D.C. Circuit Court, dividing 2-1, ruled last March 9 that Dick Heller has a Second Amendment right — an individual, personal right — to have that gun, and to keep it at home, loaded and unlocked. “Once it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them,” the Circuit Court ruled — the first time that any federal appeals court has relied upon the Second Amendment and an “individual right” theory to strike down any law that seeks to control guns. “We conclude,” the Circuit Court majority said, “that the Second Amendment protects an individual right to keep and bear arms.”

The Court ruled that only Heller, among the six local residents who challenged the handgun ban, had a sufficiently strong interest in the case that he had “standing” to sue. It is that part of the ruling that is under challenge in the cross-appeal by the five other Washingtonians.

Washington’s Mayor Adrian M. Fenty and the city government have told the Supreme Court that the city has been regulating handguns “and other dangerous weapons” since 1858. Three years after the nation’s capital city was freed in 1973 to make its own laws (rather than have Congress legislate for it), the City Council passed the gun law that is now before the Supreme Court. That 1976 law, forbidding registration of any gun “originally designed to be fired by use of a single hand,” was the result of what city officials now call “a targeted effort to prevent needless death and injury from that class of weapons.” Handguns, city officials believed then and now, “pose a particularly serious threat to public safety” — both because of the potential for accidents, especially involving children, and the potential for rampant use by criminals.

Analysis

The conventional reason that the Supreme Court often relies upon in agreeing to hear a dispute, including a constitutional controversy, is present in the Heller case: the federal appeals courts are split on what the Second Amendment means. Moreover, in an unusual twist, the District of Columbia’s own highest court, the local Court of Appeals, disagrees with the D.C. Circuit on the question, so the conflict is vivid in Washington..

One other federal appeals court, the Fifth Circuit Court, has read the Second Amendment to embrace a private, individual right, but it did not go ahead and use that theory to strike down a federal gun control law at issue there. All other federal appeals courts have taken a turn at analyzing the Amendment, and all but one (which did not take a conclusive position) have said that the Amendment only protects the right to have a gun when serving in a state militia or a modern equivalent — such as the National Guard.

It is a somewhat curious facet of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

Thus, the jurisprudence of the Second Amendment is almost wholly confined to laws enacted by the federal government. The District of Columbia is something of a governmental curiosity, and that could complicate Supreme Court review of its handgun ban. While the District is considered by Congress to be a state for some purposes, that is not universally the situation. In the Heller case, the D.C. Circuit ruled that the Second Amendment does apply to the District because the city “is a Federal District, ultimately controlled by Congress…The Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District.”

That part of the ruling raises these potential issues: First, is the District, as the seat of the national government, not a “free State” of the kind mentioned in the Second Amendment so the Amendment’s guarantee of access to arms for a state “militia” does not even apply; second, is it a state like all of the regular states and thus, because of the 1886 decision in the Presser case, the Amendment does not apply; and, third, is it a unique federal enclave that — like the rest of the federal government — does have to obey the Second Amendment?

The city’s appeal does not spend much time on those issues; it is interested in having an answer on the meaning of the Second Amendment because that is what divides the lower courts, but says that, whatever that meaning turns out to be, it should not outlaw the handgun ban.  The challengers to the local law certainly do not want the questions raised; they need to rely on the Amendment to win. Still, the questions are presumably within the Court’s reach if it wants to examine them, because they were addressed in the lower court. Thus, should the Justices find that the Amendment does not even apply, then it would never get to a ruling on what the Second Amendment covers, or on the constitutionality of the city’s handgun ban.

The city also does not contest Dick Heller’s right to have sued over the pistol ban. But that is open to the Court to question, if it wishes. Should the Court grant the cross-appeal to examine who has “standing” to bring pre-enforcement challenges to District of Columbia or federal laws, that could put more focus even on Heller’s right to sue. It may be something of a reach for the Court to opt to address the “standing” issue because it is common to leave alone the question of others’ right to have sued, if one in the group was entitled to bring the case.

There is another facet of the case that could produce a decision without a final declaration on what the Second Amendment means. The Court could say that, whatever the outer limits of authority are allowed by the Amendment, it does not forbid “reasonable regulation” of gun possession. That could lead it to focus solely on whether the flat ban on handguns was “reasonable.” That might settle nothing on the issue of whether there is an individual right guaranteed by the Amendment.

And there is still a further complication that could confront the Court: the two sides do not agree on what question should be before the Court on the Second Amendment. The city phrased it as a test of its power under the Amendment to ban pivate possession of handguns “while allowing possession of rifles and shotguns.” That is, comparatively, a narrow question, since it suggests that the city had no intention of totally disarming its citizens.

Because the challengers interpret the D.C. gun law as broader than a ban only on pistols, they have suggested that the Court address a broader question — whether the Second Amendment guarantees a right to have “functional firearms, including handguns.” The city law, they note, requires that any gun being kept at home — including a rifle or shotgun — must be kept disassembled or have a lock on the trigger. The law, they argue, is “a complete prohibition of the possession of all functional firearms” at home. This would take the Court more deeply into the intricacies of the local law; that, of course, may not be a deterrent to the Court’s review. It depends upon how basic the Court wants its inquiry to be.

The cross-appeal by the local residents raising the “standing” issue grows out of a controversy that has continued for more than a decade in the D.C. Circuit. It involves Circuit precedent that limits the right to bring a lawsuit to challenge a law, requiring proof that the challenger faces a specific, personal threat of being prosecuted. This, the residents’ appeal argues, allows government officials to avoid review of a potentially invalid law simply by not issuing threats of prosecution. The key precedents, perhaps by coincidence, have come in earlier attempts to challenge federal or D.C. gun control laws — including, as it happens, an earlier, failed attempt to challenge the same handgun ban at issue now.

As a result of the “standing” doctrine against pre-enforcement challenges, the residents’ appeal asserted, officials can talk broadly about how rigorously they will enforce a law, and yet avert a challenge simply by not arresting or actually prosecuting those who seek to sue. That puts a “large class of cases” beyond judicial review, the appeal argued. “In demanding individualized threats of prosecution, a pre-enforcement challenge is virtually always too early,” it said.

The city has opposed Supreme Court review of this issue, saying it would complicate the Second Amendment dispute and noting that the Supreme Court as recently as January 2006 refused to review one of the D.C. Circuit’s precedents on the issue involving this same law.

Other filings in the cases

If the Court grants review of the Heller case, it almost certainly will draw a wide array of amici filings. At this stage, the list is short. Four states, however, have sought to make the stakes seem higher even though the Second Amendment does not now apply to limit state and local gun control laws. The D.C. Circuit decision, those states argued, “has the potential to influence judicial interpretation of both the Second Amendment and state constitutional provisions.” They urged the Court to reject the appeals court’s rationale, and to reaffirm the “states’ traditional authority to protect public safety through the exercise of the police power to restrict access to certain types of firearms.”

A group of childrens’ rights organizations support the city’s appeal, arguing that handguns pose a particular threat to “children’s physical and mental health.” Gun-related injuries, those groups contended, have a major impact on the nation’s public health system.

Joining in urging the Court to resolve the Second Amendment issue is a conservative advocacy group, the American Civil Rights Union. In doing so, it supports the challengers, urging the Justices to uphold the ruling against the city’s handgun ban. That group also questions the city’s claim that the handgun ban has helped control crime.

The ACRU also supports Supreme Court review of the “standing” issue raised in the cross-appeal. Nothing would be gained, it asserted, for someone to have to violate the law in order to test the constitutionality of the gun ban. Also supporting the cross-appeal are a coalition of gun show promoters and advocacy organizations that support an individual right interpretation of the Second Amendment.



67 Comments »



  1. One of the biggest problems with the so-called Second Amendment debate is that people accurately perceiving a fundamental right to protect oneself, one’s family, one’s belongings, one’s repose want to locate that right some place tangible, and the misunderstood Second Amendment has some words that people contort into an individual right to possess/carry guns. But the Framers deemed the right to protect oneself and family, etc., so fundamental that a right to possess and use devices for doing such [of which guns were one of many] needed not to have been verbalized in the Constitution, any more than breathing air is. The Second Amendment, in contrast to the unstated fundamental right, had a martial purpose: not only does it say “militia,” but the concept of “bearing” arms connotes an official functionality associated with the possession. If one were not a member of a well-regulated militia, or some other established force, he could carry arms anywhere, and constantly, and until the cows came home, and he would not thereby be “bearing arms.” He would simply be carrying them, for which he enjoys an unstated fundamental right. Recall the anti-Bill of Rights crowd insightfully did not want a Bill of Rights because later people would try to find meaning in what was not expressly “protected,” whereas a government of specifically enumerated powers did not have the power to invade precincts not expressly authorized. The incorporation doctrine threw that “enumeration/limitation” theory off and has caused much mischief in constitutuional analysis ever since [witness "establishment clause" discussions which are 180 off of the Framers' intents, thanks to "incorporation"]. Recall that Blackstone observed that it was part of one’s common law “birthright” to enjoy “the right of having and using arms for self-preservation and defence.” 1 Blackstone Commentaries 140. The right is fundamental and precedes the Constitution and inheres in our civil existence, so one should not get caught up in contorting the Second to say what it does not because we need not. [The Second Amendment was a states rights measure to enable the state to cheaply protect itself from invasion by the national government.]

    Comment by Michael Kennedy — November 3, 2007 @ 7:45 am

  2. How curious to claim that in the middle of listing rights of the people that the newly created government should never infringe upon the authors of the constitution insert a statement giving states the right to create a militia. Or perhaps those that wish the Second Amendment did not exist are simply attempting to wordsmith it away. Prior to the twentieth century attempt to gut IIA it was commonly understood that the militia reference merely denoted the governments interest in having the citizens well armed, ie that a militia should it be required had a pool of trained and equipped men to draw upon. That interest in no way served to restrict the right to that sole purpose.
    Also, regarding Miller, it’s seldom mentioned that as Miller had died there was no representation for his side of the case. The decision was based solely on input from government attorneys and hinged on a short barreled shotgun not being suitable for militia use, a position that a competent lawyer could well have opposed had one been available.

    Comment by Larry Bauer — November 3, 2007 @ 10:16 am

  3. Michael,

    So, your saying that the 10th amendment would be a better place to defend the right to Keep and Bear Arms?

    The problem that I see as just a layman is that the 10th amendment has been so long ignored and trampled over by the federal government that it may not have any life left in it.

    Comment by Barry Kirk — November 3, 2007 @ 11:47 am

  4. Mr. Kennedy would have you believe that his interpretation of the Second Amendment: “The Second Amendment, in contrast to the unstated fundamental right, had a martial purpose: not only does it say ‘militia,’ but the concept of ‘bearing’ arms connotes an official functionality associated with the possession. If one were not a member of a well-regulated militia, or some other established force, he could carry arms anywhere, and constantly, and until the cows came home, and he would not thereby be ‘bearing arms.’ He would simply be carrying them, for which he enjoys an unstated fundamental right.”

    That’s all very nice, but as we’ve seen, unenumerated rights have, as many of the Founders feared, received short shrift. It would appear that the Ninth Amendment is, indeed, an ink blot.

    I prefer to believe that Chief Justice Taney, as mistaken as he was in his conclusions, understood what the Bill of Rights protected – including the Second Amendment – when he wrote the decision in Scott v. Sanford:

    “(Citizenship) would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

    What the Second Amendment meant then, it means now. I see no mention of militia service in that quotation, though I do see reference to a right of assembly and a right to freedom of speech along with a right to KEEP AND BEAR ARMS.

    So thank you, no. The Second Amendment protects the right to arms so that a militia can exist. It does not protect the right of a militia to exist, leaving the right to arms nebulous and unenumerated.

    Personally, I believe this issue is such a hot potato politically that SCOTUS will, once again, dodge it by denying cert. I certainly hope not, but I won’t be surprised if that is the case.

    Comment by Kevin Baker — November 3, 2007 @ 12:52 pm

  5. Mr. Kennedy,
    I do agree that a fundamental right does indeed protect firearm ownership. This right exists regardless of the Second Amendment. Also you are correct that Madison and others did not want the Bill of Rights for the reasons you mention. However, I am glad, in hindsight, that they were persuaded otherwise.

    However, I disagree that the Second doesn’t also guarantee that right.

    1. You are placing too much meaning on the prefatory clause. Scholarship plainly shows that such clauses do not serve as limitations on the right. Also, case law supports this in Eldred v. Ashcroft in which the Article 1 Section 8 power,

    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; ”

    is not limited to science and useful arts. The prefatory clause provides a justification or disambiguation of the right, not a limitation.

    Given this “The Right of the People to Keep and Bear Arms” is not limited by the prefatory clause to those serving in militia capacity.

    2. Your interpretation of “Bearing Arms” as soley limited to military connotations is not supported historically. There are examples of the term used with regards to civilian usages.

    3. Even so, According to Article 10 Section 311, we are all members of the “unorganized” militia (excepting certain persons such as elected officials and regular army personnel).

    4. It is also interesting to note that discussion during the ratification of the 14th Amendment and early commentary all held that the intention was to incorporate the Second Amendment.

    Comment by David Lawson — November 3, 2007 @ 1:56 pm

  6. Lyle has spotted many issues here, but another one needs spotting. Congress has never (to my knowledge) approved the DC handgun ban. The handgun ban was adopted by the local D.C. government in the Firearms Control Regulations Act of 1975, but (as far as I know) Congress never specifically approved it, and this is the kind of momentous legislation for which the Constitution surely requires explicit congressional approval, regardless of the Second Amendment issue. Judge Michael McConnell once wrote in another context that Congress never “required that the schools of the District of Columbia be segregated,” and McConnell concluded that the segregation law was therefore invalid.

    The Constitution empowers Congress to “exercise exclusive Legislation in all Cases whatsoever, over such District.” Local DC authorities cannot completely erase the word “exclusive” from this clause of the Constitution (nor can courts poke holes in this clause based upon unenumerated rights as Michael Kennedy suggested above).

    Comment by Andrew Hyman — November 3, 2007 @ 2:09 pm

  7. Although not specifically incorporated by judicial precedent, the second amendment does use the broader statement “shall not be infringed”. Unlike the first amendments restriction of: “Congress shall pass no law”, the second amendments restriction is much broader. “Shall not be infringed” could quite reasonably apply to infringement by federal, state or local jurisdictions.

    Comment by Jack V. Forbes Jr. — November 3, 2007 @ 5:41 pm

  8. The legislative history of the Second Amendment clearly shows that the Founders did not intend to restrict the keeping and bearing of arms to a militia context. During debate in the Senate, an amendment was offered to add the words “for the common defense” after “to keep and bear arms”. But this was defeated in favor of the wording we have now. As Lawrence Tribe has written, the first clause of the Second Amendment explains, but does not restrict, the keeping and bearing of arms.

    Comment by Turk Turon — November 3, 2007 @ 6:23 pm

  9. “Miller and Layton defended themselves by claiming a Second Amendment right to have the gun. They lost their case in a unanimous Supreme Court decision.”

    And all this time I thought that no one had represented them at the Supreme Court. Who knew. I was also under the impression that the USSC sent the case back down for the lower court to determine whether a short-barreled shotgun (called a “trench gun” as used by the military) would be of use to the militia and, in doing so, never questioned whether Miller and Layton were members of said militia. I must be mistaken.

    Comment by Kevin McDonough — November 3, 2007 @ 6:28 pm

  10. The Second Amendment was a private citizen measure meant to insure that NO government (Federal, State, or Local) could take arms from the population. Effective defense against the government is the reason for it’s incorporation in the Bill of Rights.

    Courts over the past 150 years, post Civil War, unfortunately have failed to protect the fundamental individual right to carry arms.

    Comment by Steve Diver — November 4, 2007 @ 11:13 am

  11. What part of “shall not be infringed” is in question?

    “It is a somewhat curious facet of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws.”
    Baloney.

    The Constitution lays out not only what the federal government may and may not do, it also (admittedly to lesser, but non-zero, degree) grants and limits powers of states and other legal/political subsets & subordinates. The 2nd Amendment recognizes an independently preexisting right, and does not limit its protection thereof to just Congress; instead it states that this right is enjoyed by THE PEOPLE, and this right SHALL NOT BE INFRINGED. There is no limitation on that group, no limitation on that imperative, and other writings by those who wrote the 2nd Amendment _clearly_ meant that “shall not be infringed” meant SHALL NOT BE INFRINGED – _period_.

    In a nation “of, by and for the people”, ’tis absurd to argue that providing for “the security of a free State” stops solely at that broad level, denying members of that state the same (or marginally different) tools optimal for their security.

    By assuring protection of THE PEOPLE to be armed, _every_ subset of this nation has the means to, on short notice, form a “well-regulated militia”. That ranges from the nation needing more troops than a standing army has, to states resisting a tyrranical federal government, to a neighborhood driving out gangs, to a lone woman stopping a rapist in the parking lot.

    Does anyone seriously contend that the Founding Fathers intended that “the right to keep and bear arms” could be infringed at any level of government below federal? Come ON! Of course they did not – especially having intimately experienced the connection between “the people” being armed and “the security of a free State”, and having required anyone remotely expected to serve in active combat be armed to minimal non-trivial standards (to require every man be armed for instant military service, yet allow state law disarm every wife, is absurd).

    The “security of a free State” is born of “the people” being able to “keep and bear arms”, and that ability “shall not be infringed”, because from a self-armed populace already familiar with those arms a “well-regulated militia” may be raised on a moment’s notice. For any political subset of the USA to infringe on that right is to deny an enumerated & protected right, and to suppress the ability of “the people” to form “a well-regulated militia”.

    Should, at the Supreme Court level, anything less than a full “individual” interpretation of the 2nd Amendment be rendered, in light of my above comments, what do you seriously think the reaction of “the people” – who are already armed – will be? Think carefully before answering. (I advocate nothing – but hear much.)

    Comment by Carl Donath — November 5, 2007 @ 10:54 am

  12. Michael Kennedy: “But the Framers deemed the right to protect oneself and family, etc., so fundamental that a right to possess and use devices for doing such [of which guns were one of many] needed not to have been verbalized in the Constitution, any more than breathing air is.”

    And yet, it appears that governments today are perfectly willing to ban this “fundamental” right. And while the Supreme Court has often listed a number of “fundamental” rights, such as the right to marry, the carrying of guns somehow never made it on that list.

    It would be comforting if it were true that the carrying and ownership of guns would always be protected regarding of the Supreme Court’s view of “bearing” such arms. But this is emphatically not the case. D.C. regularly punishes people for owning or having guns on their person, in the privacy of their own home, car, wherever. And D.C. would certainly view it as a catastrophic loss to learn that it only has the ability to regulate or ban the “bearing” of arms in an official context, but that private citizens are free to carry arms “anywhere” they wish. Thus, the outcome of this case is far more important than Kennedy assumes.

    Comment by James N. Markels — November 5, 2007 @ 11:34 am

  13. Let the amendment be about state-run militias – otherwise, we quickly end up the realm of penumbras and emanations. When it comes to the “right to privacy”, people scream and howl first over tortured interpretations of the Bill of Rights, then over another tortured interpretation of the 14th allowing for “incorporation”. As a moderately intelligent person who can read the law and who knows what a militia is, I can say that finding a personal right to own a gun for self-defense that supersedes state law is asking me to make a similar set of difficult interpretations.

    The “right” to self-defense is not only implicit in the basic concepts of a natural right to life and property, it is a basic biological imperative. It is up to society to figure out the best to implement collective self-defense in an orderly way, which necessarily impedes personal self-defense. Thus we leave it to juries and courts, not lone individuals, to condemn and punish. The same things is true with enforcement – Group A may want all citizens to be empowered with handguns, Group B may want lethal force to be concentrated only in the hands of a trained police force. It should be the legislative process that makes this determination.

    Comment by Ben Kennedy — November 5, 2007 @ 12:55 pm

  14. “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.”

    Do you have the right to keep and bear arms so as to be prepared to be part of a well regulated Militia, yes. In keeping with that, I see that the fight has been more about regulation, than actual bearing of arms. I do not think it unreasonable that one should be made to qualify and keep up qualification regarding the use, handling and saftey of firearms, and such qualifications be recorded.

    Comment by Louis Roundtree — November 5, 2007 @ 2:01 pm

  15. The Bill of Rights was written as a restraint aginst the federal government abusing its powers under the Constitution. The Second Amendment was intended to protect the right of the people to keep and bear arms as a well regulated militia.

    In his first inaugural address, Thomas Jefferson stated what he deemed to be the “essential principles of our Government.” One of his stated principles was “[T]he support of the State governments in all their rights, as the most competent admistrations for our domestic concerns and the surest bulwarks against antirepublican tendencies”

    One of the “antirepublican tendencies” Jefferson most feared was a federal peacetime standing army, which he believed would be “dangerous to the rights of the nation.” He, like Madison, considered the existence of effective state militias as the proper means for avoiding such a standing army. “A well-disciplined militia, our best reliance in peace, and for the first moments of war till regulars may relieve them” was one of the essential principles Jefferson stated in his inaugural.

    Among those principles, Jefferson included many of the provisions of the Bill of Rights, but said nothing of an individual right to keep and bear arms. Nor had he mentioned such a right in his earlier writings as the most famous active advocate of a Bill of Right — writings in which he enumerated the provisions he believed should be included.

    Thus it is that in a letter to the scientist Dr. Joseph Priestley in 1802 Jefferson referred to the Second Amendment as “the substitution of militia for a standing army.” And this is what Jefferson and others had advocated, not a measure to protect hunters, individual self-defenders, or insurrectionists.

    Comment by Leif Rakur — November 5, 2007 @ 3:12 pm

  16. Mr. Denniston’s analysis is significant for its obfuscation. In fact, it’s meaning is clear to those who read the opinion, and not just the legal summary routinely provided in the standard texts. The meaning of Miller is unclear only to those who wish to twist it’s holding to strangle the plain language of the 2nd amendment.

    Miller held, in relevant part, that “we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument [the sawed-off shotgun at issue]. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” The matter was remanded to the lower courts for factual findings. The appellees were notably not represented before the Court. BTW – given the use of just such a weapon in the trenches of WWI, it is highly likely that had factual findings been made, it would have been found that in fact it WAS a weapon whose use would “contribute to the common defense.”

    In making their non-ruling, Court spent several pages, in fact, writing in support of what would today be called a individual rights interpretation of the plain language of the 2nd amendment, relying on the history and traditions which likewise supported such an understanding; and understanding which was common up until recent times.

    For example, on the very page following the Court’s holding, the very same Court wrote “The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.”

    The Court went on to record that Osgood wrote that “”In all the colonies, as in England, the militia system wasbased on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.” “The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the ormer.” “A year later [1632] it was ordered that any single man who had not furnished himself with arms might be put out to service, and this
    became a permanent part of the legislation of the colony [Massachusetts].”"

    The decision continues in similar order; I need not quote it at length here, as it can be found at 307 U.S. 174. Read it for yourself; you’ll find it’s not unclear at all; rather, it presupposes an “individual” right to bear arms for the purpose of service in militias.

    Setting aside the standing issues, it is clear that when approached directly, given the language of the 2nd amendment, the common law traditions of the nation, and the clear writings of the founding period, it is impossible to hold that the 2nd amendment does NOT protect an individual right with any intellectual honesty.

    Comment by James R. Watts — November 5, 2007 @ 3:36 pm

  17. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison)would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulatedmilitia.” — Judge Silberman, Parker vs. D.C. Circuit Decision.

    Comment by Munango-Keewati — November 5, 2007 @ 6:24 pm

  18. Simply put, what use or purpose would their be for the 2nd Amm. if it was not intended to apply to an individuals personal right to bear arms.. Moreover, the entire Bill Of Rights was written to apply to each and every citizen (individual citizen all be it) and every other Amm. has been interpreted to be an “individual” right of each citizen (not only militia men, wealthy men, etc.). What basis if any exist to be inferred from the framers intentions and actions that they did not intend for each citizen to have an individual right to bear arms and for such right to equally apply to the actions of the States under the 14th Amm.. I think the Supreme Court has heretofore contorted the language and intentions of the framers to abandon a result that certain fragments of the Court and special interest found unappealing… Closing Query: Has gun restrictions in any way lowered the crime rate in D.C.( unquestionably a “high crime area” or any where else??? My motto, an armed community is a polite and respectful community..

    Comment by Charles Rhea Shaw — November 6, 2007 @ 5:45 am

  19. A “militia” is, as James notes the Supreme Court said, “civilians primarily, soldiers on occasion.” The “militia” clause recognizes that a well-regulated militia is raised from the general population being self-armed and self-trained, citizens equipped and competent to serve on a moment’s notice _without_ being part of a standing army. This is achieved only by protecting “the right of the people to keep and bear arms”, and that it “shall not be infringed”.

    The 2nd Amendment is about citizens being armed. A state is armed because its residents are armed. Those trying to make the 2nd Amendment apply only to states fail to recognize that states _are_groups_of_people_ – disarm the people, the state is disarmed. Standing armies are forbidden; therefore, a state’s militia exists because the state’s people are armed. Take the arms from the people, and you disarm the state.

    Comment by Carl Donath — November 6, 2007 @ 9:23 am

  20. The Second Amendment was no doubt clearer to 18th-century Americans. They generally understood the term “bear arms,” when used in a wholly military context, to be a reference to military service only. If you wanted the term to embrace other uses in addition to the military, you had to include words that said so.

    That was exactly what the Pennsylvania Minority did in its often-cited proposal to amend the Constitution in words that began by saying, “That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game…”

    The package of constitutional amendments proposed by the Pennsylvania Minority was rejected by a 2 to 1 vote of delegates at Pennsylvania’s ratification convention.

    The Second Amendment was written to protect the right of the people to keep and bear arms as well regulated militia, not to protect a right of hunters, self-defenders, or insurrectionists.

    Comment by Leif Rakur — November 6, 2007 @ 12:14 pm

  21. Historical usage, as gleaned from the O.E.D. and Webster’s, supports the notion that “bear arms” was sometimes used as an idiom signifying the use of weaponry in conjunction with military service. However, these sources also confirm that the
    idiomatic usage was not absolute. Silveira, 328 F.3d at 573 (Kleinfeld, J.); Emerson, 270 F.3d at 229-32. Just as it is clear that the phrase “to bear arms” was in common use as a byword
    for soldiering in the founding era, see, e.g., Gary Wills, To Keep and Bear Arms, N.Y. REV. OF BOOKS, Sept. 21, 1995, at 62-73,it is equally evident from a survey of late eighteenth- and early nineteenth-century state constitutional provisions that the public understanding of “bear Arms” also encompassed the carrying of arms for private purposes such as self-defense. See Emerson, 270 F.3d at 230 n.29 (collecting state constitutional provisions referring to the people’s right to “bear arms in defence of themselves and the State” among other formulations). Thus, it would hardly have been unusual for a writer at the time (or now)
    to have said that, after an attack on a house by thieves, the men set out to find them “bearing arms.” — Judge Silberman, Parker vs. D.C. Circuit Decision.

    All of these objections are discussed –and refuted–in the Parker decision. You folks really need to read it before posting.

    Comment by Munango-Keewati — November 6, 2007 @ 5:10 pm

  22. The tortured reading of the 2nd relied upon by some people above, that US citizens have no individual right to arms, flies boldly in the face of a 400 year history of private firearms ownership on this continent; from Jamestown, right up to the present. To suggest otherwise is laughable.

    In that the US Constitution as a document places restrictions on the government and does not, in fact, grant ANY rights to the people, but rather acknowledges preexisting, inalienable rights… Then the relevant question is most certainly not whether the constitution grants individuals the right to arms, but rather; where, if at all, does the Constitution grant the government the power to infringe on those preexisting inalienable rights – beyond certain provisions dealing with the organized militia? Even given the powers regarding said powers, it is rather telling that, in their frenzied zeal to destroy the rights of all, they totally ignore the role of the unorganized militia.

    Funny too, in their contempt for ‘individual self-defenders’, how they choose to ignore the fact that not even large cities had formed police forces until well into the 1800’s, let alone rural areas.

    Comment by Robert Davis — November 6, 2007 @ 5:23 pm

  23. The Second Amendment was no doubt clearer to 18th-century Americans. They generally understood the term “bear arms,” when used in a wholly military context, to be a reference to military service only. If you wanted the term to embrace other uses in addition to the military, you had to include words that said so.

    Really? Like the word ‘keep’ for instance?

    But then you knew that already, given the rhetorical trick you employed to address only the word ‘bear’ in your argument before slipping the word ‘keep’ into the final paragraph…

    Comment by James Griffith — November 6, 2007 @ 10:22 pm

  24. In the Second Amendment’s expression “keep and bear arms,” the presence of the word “keep” neither adds to nor subtracts from the standard meaning of “bear arms,” which is “render military service,” since the arms are obviously “kept” in any case.

    If a founder-era writer wanted to use the words “bear arms” in a sense other than its standard military meaning, how did he do so? He did so by adding words to the context, usually in the same sentence, that made clear the particular use of the arms he had in mind. This is exactly what happened in the excerpt from the Pennsylvania Minority Report that I included in my last previous post.

    On the other hand, a good example of the use of “bear arms” in its standard military meaning is the nineteenth amendment to the Constitution proposed by the Virginia ratification convention:

    ”Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

    Although the word “keep” is not used in this proposed amendment, the referenced arms would clearly have been “kept” by the people — either in the hands of militiamen or in public magazines.

    Comment by Leif Rakur — November 7, 2007 @ 12:34 pm

  25. Leif Rakur writes: If a founder-era writer wanted to use the words “bear arms” in a sense other than its standard military meaning, how did he do so? He did so by adding words to the context, usually in the same sentence, that made clear the particular use of the arms he had in mind.

    Would that be like, “the right of the people”?

    Again, the Parker decisions considers and refutes this stuff.

    Comment by Munango-Keewati — November 7, 2007 @ 1:18 pm

  26. In the Second Amendment’s expression “keep and bear arms,” the presence of the word “keep” neither adds to nor subtracts from the standard meaning of “bear arms,” which is “render military service,” since the arms are obviously “kept” in any case.

    If a founder-era writer wanted to use the words “bear arms” in a sense other than its standard military meaning, how did he do so? He did so by adding words to the context, usually in the same sentence, that made clear the particular use of the arms he had in mind. This is exactly what happened in the excerpt from the Pennsylvania Minority Report that I included in my last previous post.

    I wouldn’t have thought it necessary to explain my point, but clearly I do: this case is not about ‘bearing arms’ it is about keeping them.

    And your point about the Pennsylvania Minority Report is very interesting and all, but you seem to be deliberately ignoring the fact that that language does not include the word ‘keep’ and the 2nd Amendment as ratified does. Which strikes me as just as significant a change as removing the concluding wording.

    It is not just the right to bear arms that shall not be infringed, the right to keep them is also protected – thus even if we accept, arguendo, what you are saying about ‘bear’ the founders clearly did use language in the amendment to encompass something wider than a purely military application.

    Comment by James Griffith — November 7, 2007 @ 11:55 pm

  27. One thing that’s so often forgotten is that the Constitution’s purpose is explicitly limiting the power of government. The federal government is not allowed do anything the Constitution does not authorize. While in many areas quite broad powers are authorized, none of them I can find could reasonably apply to the banning of guns. Even if the Second Amendment, unlike every other mention of “rights of the people”, refers to the states rather than to individuals…that still doesn’t mean the government is authorized to ban gun ownership.

    Comment by Cal Lawrence — November 8, 2007 @ 3:41 am

  28. Cal: According to some, Congress’ power to regulate interstate commerce could be used to ban the trade of guns and gun parts (so the only legal guns would be those wholly made within a single state), and could conceivably ban the possession of guns on the basis that gun-related crime threatens interstate commerce, thus gun possession itself threatens interstate commerce and must be eliminated.

    Comment by James N. Markels — November 8, 2007 @ 10:38 am

  29. Jefferson has been mentioned as never stating an individual’s has the right to privately own firearms. This is incorrect. There were many instances where Jefferson (and many of the Founding Fathers) enumerated an individual right.

    The most direct statement I have ever found to prove my point, (i.e., relative to Jefferson’s opinion on individual ownership of firearms), is this:

    “No freeman shall ever be debarred the use of arms.”
    —Thomas Jefferson: Draft Virginia Constitution, 1776.

    What many people fail to realize is the 2nd Amendment was written primarily as a protection against tyranny.

    To guard against tyranny an individual right to keep and bear arms was, and is, of primary importance.

    Remember, many of the Founding Fathers had just defeated a tyrant and, therefore, feared a strong, overbearing central government.

    The 2nd Amendment was enacted, in large part, to guard against the possible, and oftentimes eventual, progression into tyranny when a central government is formed. History was, and is, replete with many, many examples proving their concerns were valid.

    One way to prevent this tyrannical decline was to ensure people be allowed to keep and bear arms.

    In all other amendments to the Bill of Rights, the term “people” meant the individual. The wording, meaning and consistency with other amendments requires us to conclude the 2nd Amendment confers an individual right to keep and bear arms.

    Comment by Ronald Jamison — November 9, 2007 @ 1:48 am

  30. When discussing Miller several critical items should be kept in mind.

    There was _no_ brief at all filed for Miller & Layton. Only the side of FDR’s Department of Justice was heard.

    Whatever is taken from the decision, it is hard to argue that due process was served in the present day context. Imagine any decision that went differently than you’d like. Had your side not even been put before the court, you’d likely say that the result should not be given much weight, nor count for much as a precedent.

    The DoJ devoted most of its brief to the argument that the Second Amendment protects only a collective right. [see: http://mysite.verizon.net/vze1prt1/miller.htm The Court ignored it completely and never even uses the word “collective” nor “state right”. It is unlikely that the court meant to express a collective right but failed to use that expression at all.

    Ever since, many courts have been dishonestly quoting the DoJ _brief_ as it was the position of the court — it was not.

    The decision did _not_ uphold a conviction (as some claim). It only re-instated an indictment. The indictment had been quashed by the District court without any hearing. Essentially, the defendant Miller, said, “Hey, the NFA34 is unconstitutional because of the 2nd Amendment.” The judge said, “Yeah, your right. Nevermind.”

    The Miller court wasn’t sure that a sawed-off shotgun qualified as “arms” (just as, for instance, earlier courts weren’t sure whether bowie knives were “arms”). There had been no evidence presented in District Court, nor argued to the Supreme Court (remember, Miller wasn’t represented there). There never was a trial. Miller died before the decision was published. Layton plea bargained probation for a guilty plea (he was a convicted felon already, so he lost nothing) — the DoJ did not want this coming back to them and losing the NFA34 to unconstitutionality.

    Comment by JC Rickers — November 9, 2007 @ 8:14 am

  31. The Second Amendment affirms an individual right, no differently than any of the other amendments in the BOR which have been interpreted as affirming individual rights.

    “Militia” is a broad term which includes individuals not organized whatsoever. US Code includes in a militia “all able-bodied males . . .” and there are “organized” and “unorganized” individuals, the unorganized individuals being simply defined as “members of the militia who are not members of the National Guard or the Naval Militia”.
    –10 USC Sec. 311
    http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t09t12+170+37++%28militia%29%20%20%20%20%20%20%20%20%20%20

    “Regulated” means “governed by laws”. “Well-regulated” means “governed well by laws”. Since a militia does have unorganized individuals, a “well-regulated militia” includes unorganized individuals with firearms who are governed well by laws. We have a lot of laws governing individuals’ military service (e.g., selective service, individual ready reserve for veterans fresh out of the service, and other provisions of law with respect to military mobilization of individual civilians) and individuals’ purchase, possession, carry, and use of firearms. Clearly, unorganized individuals with firearms are well-regulated.

    In order to have well-regulated unorganized individuals at the ready for the nation to draw upon for defense, in addition to whatever number of organized citizens are on hand, the right of individuals, organized or unorganized, to keep and bear arms shall not be infringed. That is what the Second Amendment is saying. It affirms an individual right to arms, couched in reasoning based on the common good for having individuals exercise that right.

    Comment by Dan Meadows — November 9, 2007 @ 11:07 pm

  32. Dan Meadows: great comments but “Regulated” in the time of the Framers did not mean “governed by laws.”

    Clockmakers “regulated” clocks so they kept exact time with each other. Back when automobile windows were manually operated, the mechanism that raised and lowered the window was called a “regulator.”

    Even today, double-barreled shotguns are “regulated” when both barrels shoot to the same point of aim—they don’t just naturally do that, they have to be adjusted, put in good working order, to yield consistent results.

    This usage of “regulate” has fallen into disuse, but only recently, and due in large part to excessive “regulation” of daily life by an overactive Federal government.

    A well-regulated militia, in the intent of the Framers, was an armed body that could shoot straight, consistently, with the same gear the Big Armies used.

    Comment by Fusilier N Pundit — November 10, 2007 @ 1:52 pm

  33. What is the opposite of a “free state”? A police state, that’s what! And “the people” being you and me certainly don’t benefit from living under such conditions. So to ensure the “security of a free state” we have “the right to keep and bear arms” to prevent tyranny in government!

    Comment by Joe Gibson — November 10, 2007 @ 2:28 pm

  34. Look to the Congressional power to grant letters of marque. This power supposes private owership of both individual small arms and larger ordnance. Otherwise we have the situation of only granting letters of marque to the navy.

    Also, if you are going to argue the purpose clause of the 2nd, then you need to apply the same reasoning to the purpose stated in the 1st. What purpose clause in the 1st? “…or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” To be consistant with the purpose argument used for the 2nd (it is the only purpose mentioned, therefore it is the ONLY purpose for the RKBA), we would have to say that the ONLY assembly protected by the 1st is one that results in a “petition (to) the government for a redress of grievances.”

    Comment by Joe Lovell — November 10, 2007 @ 4:52 pm

  35. In 1856, the U.S. Supreme Court Ruled that local law enforcement had no duty to protect individuals, but only a general duty to enforce the laws.

    South v Maryland
    59 US (HOW) 396,
    15L.Ed.433 (1856)

    “… a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen…”

    Warren v. District of Columbia,
    444 A.2d 1 (D.C. App.181)

    Comment by Charles Higgins — November 10, 2007 @ 5:30 pm

  36. The notion that 18th-century Americans didn’t use the words “regulate” and “regulation” to mean “governed by law” is easily shown to be wrong.

    Legislatures of the time of the founders and framers passed laws that regulated a variety of human activities, including militia service. Pennsylvania’s militia act of 1780, a law that was in effect at the time the Second Amendment was passed, included many pages of rules and regulations as to how the state militia was to be governed.

    The title of Pennsylvania’s militia act of 1780:

    “An Act for the REGULATION of the Militia of the Commonwealth of Pennsylvania.” (Emphasis added)_

    Comment by Leif Rakur — November 12, 2007 @ 3:47 pm

  37. Folks, please forgive an old country boy from Mississippi for butting in. I will not pretend to be as well educated as the majority of you here, nor as verbose as many.
    I will say this however: Rakur, you scare hell out of me. I can think of a number of nations in the past whose governments infringed on individual’s rights to keep and bear arms. Their militias then proceeded -under the government’s direction- to annihilate large portions of its defenseless population. Our sons and daughters have died and are still dying to protect and free such people.
    I pray your mindset does not gain in popularity. Shooting and killing one’s own son or daughter who is an unfortunate member of my nation’s “militia” wouldn’t set very well with me. I fear I would hold men such as yourself directly responsible.
    Good day and Godspeed, gentlemen.

    Comment by Jera Anderson — November 13, 2007 @ 2:20 pm

  38. Rakur,

    If the second amendment is not about private citizen rights, why all the quotes from the founding fathers about firearm rights. Also given the strong feelings of the founding fathers reguarding the rights of the individuals to own firearms, wouldn’t those rights be covered under the 9th amendment?

    “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” – George Mason

    “A militia, when properly formed, are in fact the people themselves …” – Richard Henry Lee

    “The people are not to be disarmed of their weapons. They are left in full posession of them.” – Zachariah Johnson

    “… the people are confirmed by the next article in their right to keep and bear their private arms” – Philadelphia Federal Gazette

    “And that the said Constitution be never 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

    “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.” – Richard Henry Lee

    “The great object is that every man be armed.” and “Everyone who is able may have a gun.” – Patrick Henry

    “Firearms stand next in importance to the constitution itself.” – George Washington

    Comment by Charles Higgins — November 14, 2007 @ 1:19 am

  39. I concur, in part, with Mr. Donath’s response. “Shall not be infringed” is specific language which was written to send the Founder’s intent to “the people” at the time it was written, as well as to all future readers and interpreters of the Constitution.

    What the District is trying to accomplish is the validation of their infringment on the individual rights of its law abiding citizens. No matter how the Court rules, criminals will not change their ways to respect the decision one way or another. This ruling will affect lawful citizens and should their rights be taken away, the Court would weaken the population and make them incapable of protecting themselves against criminals who have no respect for the rule of law.

    Guns in and of themselves are not dangerous. Mayor Fenty’s contention that handguns are the same as other “dangerous weapons” is an obvious injection of his own personal philosophy. The people who use guns in a wreckless manner are the true danger. The right to keep and bear arms was given to the people in the hopes of creating and maintaining a free society.

    Comment by Osvaldo Estrada — May 30, 2008 @ 9:48 am

  40. In my opinion, the discussion over the meaning of the term “militia” in the 2nd Amendment is getting tiring. Had the framers meant for the states to control, or regulate, the issuing of firearms, would it have not been illegal to own/carry firearms at that point? I cannot think of any instance in 18th and 19th century America where federal or state governments forced the mass citizenry into surrendering their firearms. Even if they had, would that not be “big government” infringing on the individual rights that were intended for us to enjoy in order to keep a just and sound system of governance?

    Also, Washington D.C. has consistently been one of the more violent districts in our country for the last 20 years. Some improvements have been made, but you cannot blame Heller for wanting to protect himself and his valuables from potential threats. Even if one does not believe we have a right to gun ownership, it is foolish to believe that those who are irresponsible (thugs) with them can be contained by the law. Further restrictions will just open up a larger black market for weapons to be offered in. That surely goes against my right to not have to live in fear. This is just another case where the fake “politically correct” ideology undermines the true civility of men like Thomas Jefferson and George Mason.

    Comment by Charles Brand — May 30, 2008 @ 3:35 pm

  41. In my opinion, it is inconceivable that the Second Amendment has been challenged as frequently as it has. The meaning of the words of the Second Amendment, “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”, appear very clear to me. Our Founding Fathers wanted Americans to have the right to keep and bear arms for personal use as well as to protect our new nation from England and other potential intruders and threats. In order to protect the nation, the Founding Fathers implemented the clause of the Militia, yet it is merely a sub-clause to the whole meaning of the Second Amendment, which gives people the right to keep and bear arms. I believe that this issue has been such a heated debate over the last century due to the common misuse of guns. In a perfect world, people would use guns for hunting and sport, and therefore they would not be considered a threat. However, since we do not live in a perfect world, guns are all too often being used illegally and in many robberies and murders. The government can attempt to regulate or prohibit gun use, which could leave the innocents unable to protect themselves, causing the formation of a police state in which we are entirely dependant on the police, and furthermore this would lead criminals to purchase guns illegally, which could potentially create more violence and crime. In conclusion, I feel that it is in the best interest of the people to allow gun use for personal protection, hunting, and sport, yet regulate the usage by requiring all guns to be registered through the National or State government. Also, if a person misuses their gun, they should have their Second Amendment rights revoked permanently, as they may be a threat to society.

    Comment by Kelly Hilterbrick — May 31, 2008 @ 2:20 pm

  42. The position of various childrens’ right organizations that the DC ban should be upheld based on the belief that guns present a threat to “children’s physical and mental health” is disenfranchising in that it would punish a would-be gun owner who does not have children on the basis of the supposed irresponsibility of gun owners who do. Setting aside the fact that the clear majority of registered gun owners — both with children and without — are competent and responsible with their weapons, it is a classic example of the attempted imposition of a neoliberal “nanny state” in action. On what basis, for example, could a government that allows parents to keep dangerous (yet entirely legal) substances such as alcohol and tobacco within the home legitimately claim to be keeping the best interests of children in mind by upholding said ban? Surely such ordinary household products as detergents and other forms of chemical cleansers frequently found within the home can be every bit as dangerous in large doses to children as an accidentally discovered firearm, yet possession of these substances is not regulated by the courts. The standard here, in keeping with the guiding principle of self-determination that has been at the heart of the American experiment since its inception, should be one of personal responsibility, that legally registered gun owners be both accountable for their own safety and well-being, as well as held to account in the event that trust is breached. If the court should find itself inclined to rule in favor of the ban, it should do so on the merits of the constitutional arguments at hand, without feeling the need to fall back on hyperbole and the hypothetical welfare of the district’s children as a means of spuriously legitimizing what would otherwise be an undoubtedly weakly reasoned decision.

    Comment by Logan Snyder — June 1, 2008 @ 9:50 am

  43. It is hard for me to believe that the framers of the U.S Constitution intended for a population to be defenseless against government(state as well as federal), wilderness, and the tyranny of men (domestic and foreign). As a nation founded on revolution, the right to keep and bear arms should not even be questioned. The language of the Second Amendment may seem confusing but it does not “give” the right to keep and bear arms, it simply acknowledges the universal right and gives a reason why it will not be infringed.

    Furthermore, the term the “the people” is the most important term because the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The fact that the framers were able to distinguish the State from its people, elsewhere in the Bill of Rights, implies that they knowledgeably used the “the right of the people” in the Second Amendment to refer to individuals.

    Comment by Tamarah Lee — June 1, 2008 @ 12:23 pm

  44. There are a few points that i never considered until I read this. It seems to me that there are a variety of ways the Court can get out of coming down with a decision that would actually decide the meaning of the Amendment.

    Would it be surprising if the Court skirted the actual Amendment question and simply ruled on whether DC’s handgun ban is an unreasonable form of regulation?

    Comment by Chris Kersbergen — June 1, 2008 @ 4:48 pm

  45. It seems rather obvious that “the right to keep and bear arms” is not a reference to a collective right but rather to an individual right to bear arms. Is it really believable that the founding fathers had intended for the American people to live in a police-state with no means to protect ourselves from a state militia? This is obviously not what was intended. An attempt to convince the court that the Constition does not acknowledge an individual right to bear arms is an attempt to take power from the individual and give it to the government. History has shown us that one effective method of gaining control over the people is to take away their ability to defend themselves. If it is decided that the second amendment refers to a collective right to bear arms the decision will not be made with the good of the people in mind, but rather with the desire to obtain control of the people in mind.

    Comment by Ron Pawlak — June 1, 2008 @ 7:09 pm

  46. In reviewing the analysis of the Heller case, it appears that the District of Columbia is sometimes considered a state and other times considered a Federal District. So, in this instance the Second Amendment may, or may not apply to the ban on handguns in that “territory”. It is no wonder that this issue has been debated for so many years there. How can a court decision be rendered in this case if the basic question of whether or not the ban falls under the Second Amendment or not is unclear?
    It seems to me that the debate of the Second Amendment to mean “people” as either individual or collective, will never be resolved. It would better serve the people of this great country to interpret the meaning by today’s standard of use and conduct in regards to “arms” than to a standard relative to a time over two hundred years ago.

    Comment by Thomas S. Ford — June 1, 2008 @ 9:19 pm

  47. Okay, so you have the right to bear arms… now what? Are you gonna sit and wait for the “intruder” to come in to get him before he gets you? Oh, maybe you need your gun incase you spot Osama Bin Laden taking a stroll on Ocean drive? Whatever your reason, shouldn’t our government be taking care of that for us? Why the need for police officers if we can do it our selves? Why the need for a militia if we can all get rifles and guns and do it ourselves? even if the second ammendment is upholding individual rights it still does not mean that the government should not be able to regulate guns. does the government not regulate our housing and propery situations? Does it not regulate how much and where our money goes? So why not guns? I have the individual right to safety. i want to know that Joe Shmo down the street is not gonna be having a bad day and decide he wants to go shooting random people. We all want to scream that we should have our rights as stated in the constitution. Tell that to the parents who lost their children in the countless and senseless school shootings. dont they have a right to happiness. The regulation of guns should be allowed so long as it is achieving a legit government purpose. I wonder, do the gun rights advocates have any faith at all in their government and in their country?

    Comment by Janetta Joseph — June 1, 2008 @ 9:21 pm

  48. The one factor that distinguishes the United States from the rest of the world is that law obeying citizens have the right to own guns under the second Amendment, and perhaps it’s a coincidence that two of the oldest democracy the United States and Switzerland have the right to own guns. Another point of view of individuals’ right to own guns is seen in a dictatorship. In a dictatorship the first right that is taken away is the right to own arms from the law obeying citizens for example in the case of Hitler, Stalin, and Fidel Castro among others.
    In recent years in the United States we have seen an outcry by organizations and small groups to ban or limit the right to bear arms instead of enforcing the many laws that the United States has for the unlawful use of guns.

    Finally local governments should not band or remove this right from the law obeying citizens instead they should focus on enforcing the current laws to punish those who use guns for delinquent acts. By enforcing the current laws, law obeying citizens still have ‘individual’ right to bear arms protected under the Second Amendment.

    Comment by Priscila Jager — June 1, 2008 @ 9:58 pm

  49. The problem isn’t within the Second Amendment, the problem lies within human nature. Citizens make choices everyday that affect society and the individuals around us. Some people have a larger affect on others and some want to affect more people. If not having guns in a crime ridden city is going to help keep crime down then I wouldn’t want to live in that city when someone breaks into my house.

    The solution is that the informed citizenry becomes the ultimate pathway to justice. I mean that each of us should be educated on not only the proper use and storage of guns but the severe punishment of the crimes committed with firearms and other weapons must be increased to deter the unwanted behavior.

    People make choices guns don’t. Punish the people not the inanimate object. I understand how it affects children physically and mentally with what has been happening in some schools, but how safe is a family’s home without one? By the way when a desperate person’s will is strong enough and he doesn’t have a firearm available to steal from a corner convenient store I am sure they will find a knife. If they can not find a knife they will use a brick . No brick, how about a pole, get the picture (were there is a will there is another way).

    Education should be our number one goal and as it changes with the times so should our society adapt; teachings of the consequences and alternatives to violence. Better social welfare and education will allow more freedom in what our founding fathers intended to be a free society.

    Education and proper storage of firearms coupled with proper usage should be paramount. People make choices guns don’t . Don’t punish the inanimate object; rather punish the person who is using it wrongfully.
    Perhaps if the punishments were more sever people would not be so readily willing to use them.

    Comment by Suzy McCafferty — June 1, 2008 @ 10:15 pm

  50. I feel there are a few issues under scrutiny here. One being if the second amendment is applicable in modern terms, if the amendment is applicable to individuals and lastly what types of arms are declared in the amendment.
    I understand the amendment to be relevant in today’s day and age just as well as it was in the 18th century when it was introduced. Personal protection from all foes is a necessary evil that should never be infringed. Whether it is protection from the impending threat of the British or other country during the birth of the states or today from a stranger on the street to someone even as close as a family member. It is your duty and natural right to protect yourself from an inherent danger. There are risks within the privilege of the use of arms just like anything else; you can’t make everyone do the right thing; but your right to do so should not be infringed by those who take advantage of the right granted under the amendment. This also implies to the second issue I feel is under question; is it applicable to individuals. My interpretation and understanding of the amendment is, yes. If it is your duty to protect yourself then you should be able to do so as you see fit. Furthermore, the Framers make a clear distinction between the powers of the state and those powers granted to the people. This is one power granted to the people. Finally, if the question to now scrutinize is which types of arms are specified in the amendment, it should be those of which the owner of the arm legally has the right to bear. Whether it is a shot gun or a pistol, if it is legally owned, unmodified, and safe to operate, it should be protected under this amendment. Any infringement on a personal right to protection under the amendment is one against the constitution and the ideas of the Framers.

    Comment by Michelle White — June 1, 2008 @ 11:21 pm

  51. I believe that rights should reflect responsibility. When the responsibilities of a militia became supplanted and/or obsolete, any rights that such an informal group may have had should have been revoked; however, due to the fact that there is only the vague reference to a well-regulated militia, there has been little effort to create these expected regulations. So, supporters of gun rights under this supposition, only have grounds to do so because states have not made the effort to clearly designate who should be allotted the responsibilities and, thereby, the rights of militia members.

    Those who support the individual right to bear arms as a form of check against the government were right to do so at a certain time. Today, such a notion is naïve. There is little currently armed individuals could do if the government sought to initiate a totalitarian hold on the nation, that is circumstantial, and results necessarily from the global technological/arms race. The only earnest defense against a corrupted, republican government is increased political awareness and involvement.

    Those who see the right to bear arms as a necessary supplementation of the police force, are forced to do so because current laws are not properly enforced, and because of the right itself being overextended. Most killer firearms are obtained legally or stolen from someone who obtained them legally. The circumstances which demand individual protection through firearms arose because of the right for individual protection through firearms. This is obviously a positive feedback loop which sets the stage for the ~30,000 gun related deaths in the U.S. annually (principally suicides/accidents).

    If one takes that number and extends it over time, it becomes clear that allowing firearms to civilians serves almost entirely to empower statistics to take lives, a force which cannot be brought down with bullets. If one considers individual safety the key motive for the defense of the second amendment, than statistics would quickly denounce such an argument as self- contradictory. The correlation between an increase in guns and an increase in gun-related deaths is indisputable. In regions where civilian firearm use is discouraged, there is a corresponding reduction in gun-related deaths. This is most obvious in Japan, where a population of about half of the U.S. sees only about 60 gun-related deaths annually (the same amount as about 18 hours in the U.S). Those 30,000 or so, who die annually, do so by and large to satisfy a mere semblance of autonomy.

    IMHO

    Comment by Devin Feher — June 2, 2008 @ 12:12 am

  52. “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 to be infringed.”
    It is our fundamental right as a citizen of the United States to be able to own and carry a gun. It is our right to be able to provide ourselves with our own means of self-defense.
    I believe the Framers purpose of the Second Amendment is not to enforce governmental interest in the regulation of a citizen’s right to gun possession. Instead, their purpose is to ensure that by owning or caring a firearm we are fulfilling our divine right to defend ourselves. For example, the Framers of the Second Amendment use the word Militia. The Militia the Founding Fathers are referring to is composed of regular citizens trained to defend themselves and their country. These citizens are not militarily trained solders that the government provides for the nation; they are civilians. Additionally, when the Amendment was written, the purpose was to provide citizens with the right to defend themselves in times of threat. With the safety of the citizens in mind, the Founding Fathers stated that individuals who were a part of the regulated Militia had the right to keep and bear Arms. Today our nation has well regulated Armed Forces with no need for a Militia. However I do not believe that this should infringe on our right as civilians to carry and possess a firearm.
    Also when the Second Amendment was written the Founders wanted to limit government control. They did this by promising citizens that the government could not deny individual firearms. One reason for this limitation was to prevent the government from becoming a Tyranny and having complete control of the people. Today if the government denies citizens the right to defend themselves by means of legally owning a firearm, then they are strictly going against our Founding Fathers intentions in regards to the Second Amendment.
    Additionally, the second amendment states “shall not to be infringed.” I agree with Carl Donath when he says that the “writings by those who wrote the 2nd Amendment _ clearly _ meant that “shall not be infringed” meant SHALL NOT BE INFRINGED-_period_.” This means that it is our fundamental right to own and bear arms and that this right is not to be violated by any means such as the government.
    Finally, it is ones fundamental right to protect their lives, their family’s lives and belongings from outside forces. The Second Amendment states “the right of the people” which in this case guarantees every individual the right to bear arms. For example, if we as citizens are prohibited from owning and caring a firearm, then who will protect us? Yes the government provides protection to citizens with means such as police and the military; however, they also state that it is our responsibility as a citizen to protect ourselves. The primary responsibility of the police is to enforce our written laws. They are also responsible for protecting the citizens. The police however are not Omni-present and therefore we as citizens of the United States must have the right to bear arms in order to protect ourselves, our loved ones and our possessions in circumstances when the police are unable to provide protection. By denying citizens the right to own and carry firearms we are unable to realize this right.

    Comment by Christa Cavolina — June 2, 2008 @ 12:30 am

  53. Why would the frames state in the second amendment that “the right of the people to keep and bear arms shall not be infringed” if they did not want their people to be able to protect themselves from the English. I believe that a lot of the confusion has come from the precedent set by previous cases that is making this case seem difficult. In the Miller case, the Supreme Court never clarified exactly what the second amendment stood for in the ruling of that case. Although, isn’t each case supposed to treated differently and the times are different as well. Its obvious crime rates have increased from then to now. So the “right to keep and bear arms” should be for the individual rights. In a means to be able to protect themselves not only from other nations, but harmful people as well. Guns are not going anywhere any time soon, people are going to have them regardless if they are legal or illegal. If a person feels threatened their natural reaction is to defend themselves.

    Comment by Elizabeth Gosein-Vasquez — June 2, 2008 @ 12:35 am

  54. The Second Amendment secures a right of individuals generally, not a right of states or a right restricted to persons serving in militias. This opinion is affirmed through the idea that was brought up in Miller v. U.S; in which the court maintained that the right to bear arms is a right of the people of each state to organize themselves as a military and thus provide their own weapons (the latter is justified when the courts ruled against Miller because they couldn’t demonstrate how a specific weapon would be used for a state militia). So as one can see, the individual has the right to bear arms on either side of the debate because in order to argue that the 2nd amendment is a collective right for the purpose of serving in a state militia, one must have their firearm beforehand.

    Comment by Jonathan Raof — June 2, 2008 @ 9:10 am

  55. When reading this article, I have come to a conclusion. 1. It doesn’t matter where an amendment is placed, the amendment will not say anything different than what is there. 2. The point of the DC ban on guns was to prevent people, especially children from being on the wrong side of a gun. Well, isn’t it true that DC is one of the most violent states in the U.S? So why not let Heller and others protect themselves if obviously the DC ban is not working. I feel it should be uplifted.

    The second Amendment 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.”

    Reading this amendment to me clearly meant that the “Militia”, such as the Army, National Guard, and the police should be the only ones to have a gun. The second part, which says “….. the right of the people to keep and bear arms shall not be infringed.”
    This part clearly was a substitute for in case of a tyranny (which has not happened in a long time and I hope it never does). This amendment was written centuries ago in a time where people on the street did not have weapons that were more powerful than the police and a time were guns were not given out so easily (See Bowling for Columbine for understanding, if you haven’t already).

    I can see why people would want a gun in today’s society to either protect themselves or their family in case of an emergency from an outside intruder. Many people may live in a city where the nearest police station is 10 or more miles away from the nearest police station and by the time their assistance has arrived for an emergency, it may be too late.

    Comment by Patricia Agboro — June 2, 2008 @ 9:15 am

  56. It seems rather strange to me that some people choose to ignore the part of the Second Amendment referring to a ‘well regulated militia,’ or else interpret that part of the amendment as not referring to a military organization. The reason it seems so strange is that in every other instance in the Constitution where the word ‘militia’ is used, it refers to a military organization.

    Article 1, Section 8: The Congress shall have the power to… To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; …

    Article 2, Section 2: The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; …

    It seems pretty clear to me that articles 1 and 2 refer to some sort of official, standing military organization. Why, then, should the second amendment not be the same?

    Comment by Jonathan Bruser — June 2, 2008 @ 9:24 am

  57. The case of whether or not the Constitution protects an individual’s right to keep and bear arms was decided a long time ago by the Supreme Court in the Barron v. Baltimore (1833) when the court made a 7-0 ruling that the first ten amendments to the Constitution only applied to the Federal Government and thus Americans would have to look to their state constitutions for their rights. Even with the ratification of the 14th amendment (1865), it was decided in Presser v. Illinois (1886) by a 9 to 0 vote that the second amendment only applied to the federal government. This decision was also made in Cruikshank’s v. United States (1876) and that the “due process clause” and “equal protection clause” was only as restriction on the states but had no bearing in the decision of second amendment rights.
    It should also be remembered that the founders did not want the constitution to be a suicide pact. In the famous Miller v United States (1939) it stated that the 2nd amendment only applied to weapons that were to be used by a militia and thus biological weapons and missiles would be protected by the second amendment.
    A perfect example of the second amendment only applying to the federal government can be found in state constitutions. For example, in my state of Florida, the constitution states “The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.” Even if one argues the fact that Florida became part of the Union prior to the passing of the 14th amendment Alaska also has it in their constitution when stating “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 individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.” This would have been unnecessary if the second amendment of the US Constitution referred only to the people and not the federal government.
    The only thing that makes the Heller case interesting is that Heller is from Washington DC and thus the debate is much smaller in scope, only focusing on the constitutional rights of the capital and whether or not they have the same rights that are granted to them by the states through the constitution. One last point is that the 14th amendment can protect ones right to bear arms but only if the right is expressly placed in their state constitution due to the equal protection clause.

    Comment by Michael Richards — June 2, 2008 @ 12:32 pm

  58. In my opinion, the 2nd Amendment was designed by our founding fathers to protect its citizens to keep order and a civil society. The 2nd Amendment states that“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”. I do not believe that the founding fathers had any intention to control the distribution of firearms because that would be going against their democratic principles and values. I do however feel that in todays world guns should be regulated to an extent. For example, the only guns that should be allowed on the market should be hand guns, rifles, and shotguns, for self protection as well as sporting activities. I do not feel that it is necessary to have automatic or semi-automatic machine guns. In Heller’s situation in Washington D.C., I feel that Heller should be able to own a gun for either self protecting issues or hunting issues. The 2nd amendment was designed for that reason in my opinion and taking that right away from Heller would be unconstitutional.

    Comment by Eric Rutsky — June 2, 2008 @ 12:48 pm

  59. While I agree that the Constitution gives individuals the right to bear arms, I see no issue with the states placing a limitation on certain uses of such firearms. I believe that the 2nd Amendment does in fact permit the ownership of guns by individuals. I believe this right to be important in protecting oneself from tyrannical government, foreign attacks, and criminal activity. Even so, I do not see a reason that the state governments would be forbidden to pass a law reasonably controlling the use and possession of certain weapons that may be deemed as dangerous to the community. If after a thorough study, it has been concluded that handguns are more harmful (because of use in criminal activity) than positive (used for self-protection), then the government has a right to protect its citizens by passing such a law. Because the 2nd Amendment ensures the right to bear arms, however, the government must be careful not to infringe upon this right when creating such a law.

    Comment by Daniel Drew — June 2, 2008 @ 1:16 pm

  60. In regards to the future decisions of the Court involving District of Colombia v. Heller and the meaning of the Second Amendment, I believe the court will interpret it as an individual right to bear arms. Regarding District of Colombia v. Heller, I do not believe the Court will overturn the possession of firearms ban because of the “standing” issue. Another reason I do not believe the Court will overturn the ban is because it will side for a reasonable restriction of handguns and it may find the ban as a reasonable restriction. ACRU presents a valid point that according to “standing” issue, one should not have to break the law to test the constitutionality of the firearm ban. On the other hand, the ban does allow you to possess firearms and shotguns, except it must remain at home and disfuctional. As I stated earlier, I believe the Court will side for restrictions on the possession of firearms.

    When I peruse through the first line of the Second Amendment, I find an important word “regulated” which comes before “militia”. If militia includes “the people” and the “right of the people” which is found in the Second Amendment, then a “well regulated militia” under a Free State can be a well regulated people under a Free State (people’s rights to bear arms or firearms). This is why I believe the Court will not overturn the “standing” issue, and interpret the Second Amendment as an individual right to bear “arms”.

    Comment by Abner Laurent — June 2, 2008 @ 2:19 pm

  61. I believe that rights should reflect responsibility. When the responsibilities of a militia became supplanted and/or obsolete, any rights that such an informal group may have had should have been revoked; however, due to the fact that there is only the vague reference to a well-regulated militia, there has been little effort to create these expected regulations. So, supporters of gun rights under this supposition, only have grounds to do so because states have not made the effort to clearly designate who should be allotted the responsibilities and, thereby, the rights of militia members.

    Those who support the individual right to bear arms as a form of check against the government were right to do so at a certain time. Today, such a notion is naïve. There is little currently armed individuals could do if the government sought to initiate a totalitarian hold on the nation, that is circumstantial, and results necessarily from the global technological/arms race. The only earnest defense against a corrupted, republican government is increased political awareness and involvement.

    Those who see the right to bear arms as a necessary supplementation of the police force, are forced to do so because current laws are not properly enforced, and because of the right itself being overextended. Most killer firearms are obtained legally or stolen from someone who obtained them legally. The circumstances which demand individual protection through firearms arose because of the right for individual protection through firearms. This is obviously a positive feedback loop which sets the stage for the ~30,000 gun related deaths in the U.S. annually (principally suicides/accidents).

    If one takes that number and extends it over time, it becomes clear that allowing firearms to civilians serves almost entirely to empower statistics to take lives, a force which cannot be brought down with bullets. If one considers individual safety the key motive for the defense of the second amendment, than statistics would quickly denounce such an argument as self- contradictory. The correlation between an increase in guns and an increase in gun-related deaths is indisputable. In regions where civilian firearm use is discouraged, there is a corresponding reduction in gun-related deaths. This is most obvious in Japan, where a population of about half of the U.S. sees only about 60 gun-related deaths annually (the same amount as about 18 hours in the U.S). Those 30,000 or so, who die annually, do so by and large to satisfy a mere semblance of autonomy.
    IMHO

    Comment by Devin Feher — June 2, 2008 @ 2:35 pm

  62. “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 to be infringed.”

    It is our fundamental right as a citizen of the United States to be able to own and carry a gun.
    It is our right to be able to provide ourselves with our own means of self-defense.

    I believe the Framers purpose of the Second Amendment is not to enforce governmental interest in the regulation of a citizen’s right to gun possession. Instead, their purpose is to ensure that by owning or caring a firearm we are fulfilling our divine right to defend ourselves. For example, the Framers of the Second Amendment use the word Militia. The Militia the Founding Fathers are referring to is composed of regular citizens trained to defend themselves and their country. These citizens are not militarily trained solders that the government provides for the nation; they are civilians. Additionally, when the Amendment was written, the purpose was to provide citizens with the right to defend themselves in times of threat. With the safety of the citizens in mind, the Founding Fathers stated that individuals who were a part of the regulated Militia had the right to keep and bear Arms. Today our nation has well regulated Armed Forces with no need for a Militia. However I do not believe that this should infringe on our right as civilians to carry and possess a firearm.

    Also when the Second Amendment was written the Founders wanted to limit government control. They did this by promising citizens that the government could not deny individual firearms. One reason for this limitation was to prevent the government from becoming a Tyranny and having complete control of the people. Today if the government denies citizens the right to defend themselves by means of legally owning a firearm, then they are strictly going against our Founding Fathers intentions in regards to the Second Amendment.

    Additionally, the second amendment states “shall not to be infringed.” I agree with Carl Donath when he says that the “writings by those who wrote the 2nd Amendment _ clearly _ meant that “shall not be infringed” meant SHALL NOT BE INFRINGED-_period_.” This means that it is our fundamental right to own and bear arms and that this right is not to be violated by any means such as the government.

    Finally, it is ones fundamental right to protect their lives, their family’s lives and belongings from outside forces. The Second Amendment states “the right of the people” which in this case guarantees every individual the right to bear arms. For example, if we as citizens are prohibited from owning and caring a firearm, then who will protect us? Yes the government provides protection to citizens with means such as police and the military; however, they also state that it is our responsibility as a citizen to protect ourselves. The primary responsibility of the police is to enforce our written laws. They are also responsible for protecting the citizens. The police however are not Omni-present and therefore we as citizens of the United States must have the right to bear arms in order to protect ourselves, our loved ones and our possessions in circumstances when the police are unable to provide protection. By denying citizens the right to own and carry firearms we are unable to realize this right.

    Comment by Christa Cavolin — June 2, 2008 @ 2:45 pm

  63. In regards to the future decisions of the Court involving District of Colombia v. Heller and the meaning of the Second Amendment, I believe the court will interpret it as an individual right to bear arms. Regarding District of Colombia v. Heller, I do not believe the Court will overturn the possession of firearms ban because of the “standing” issue. Another reason I do not believe the Court will overturn the ban is because it will side for a reasonable restriction of handguns and it may find the ban as a reasonable restriction. ACRU presents a valid point that according to “standing” issue, one should not have to break the law to test the constitutionality of the firearm ban. On the other hand, the ban does allow you to possess firearms and shotguns, except it must remain at home and disfuctional. As I stated earlier, I believe the Court will side for restrictions on the possession of firearms.
    When I peruse through the first line of the Second Amendment, I find an important word “regulated” which comes before “militia”. If militia includes “the people” and the “right of the people” which is found in the Second Amendment, then a “well regulated militia” under a Free State can be a well regulated people under a Free State (people’s rights to bear arms or firearms). This is why I believe the Court will not overturn the “standing” issue, and interpret the Second Amendment as an individual right to bear “arms”.

    Comment by Abner Laurent — June 2, 2008 @ 2:47 pm

  64. After reading the facts surrounding the case involving Heller and the District of Columbia i believe that i would have to agree with Heller and his argument that individuals do have the right to keep and bear arms. I find it disturbing that the D.C. would require that its citizens to dismantle or lock up their arms, at which point the weapon becomes a mere paper weight.

    Comment by Michael Butler — June 2, 2008 @ 2:54 pm

  65. I must continue by saying that people have a right to bear arms as a means of defense. The framers of the constitution kept in mind that the fact not all governments are perfect and that long after they are gone this one might not stay the way that they had envisioned.
    The people were given the right to bear arms as a way to keep the government honest and to prevent it from straying into tyranny.

    Comment by Michael Butler — June 2, 2008 @ 2:59 pm

  66. In my opinion, the 2nd Amendment gives every law abiding citizen the right to own and bear arms. The debate over the word “militia” may seem like very ambiguous to some as it is to me. The founding fathers never wanted the “people” of the United States to be unarmed, in case of any attacks from within or from foreign countries. So in my opinion, the law abiding citizens of the United States should be able to own guns, thanks to the 2nd amendment. I also believe that the kind of guns sold to the public should be regulated. I do not believe that their is any reason to own machine guns, semi-automatic nor automatic. When it comes to Heller and his case in Washington D.C., I believe he has the right to own a gun and feel that it is unconstitutional for him not to have that right.

    Comment by Eric Rutsky — June 2, 2008 @ 3:07 pm

  67. I think it is obvious that there is a necessary need for the Suprem Court to take a judicial standing on the Second Amendment. That is not only to aid in the understanding of each individual case the lower courts are faced with but also as a right the people should be entitled to (knowing a clear-cut defintion of the amendment).
    According to the article, all other courts have taken a stab at interpretating the Amendment, only one which found it to be a right inclusive of serving in a militia. I can understand the argument for each state being able to clarify it’s own laws, esecially when DC felt that handguns were used by rampant criminals and were the cause of numerous child deaths. However, this is a part of the Constitution and does DC have the right to define it’s own laws or interpretation of them outside of that? Will and do all other states have the same consideration? I am all for each state implementing it’s own laws but this is much, much bigger than a “common” issue to be decided on. When dealing with something as large as an amendment to the Constitution, I do not believe there should be so much room left open for each state and individual to argue a different side of the law; which is inevitable with each court ruling. The Supreme Court really needs to take a stance on this issue or I do not feel there will EVER be resolution in the future.

    Comment by Jill A. Cabarle — June 2, 2008 @ 3:08 pm

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