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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the interest of accuracy.

I have strong reservations against a reading in that light.

The first amendment is not read in the same light. If it were, cameras held by reporters would not be covered by the first amendments “freedom of the press”, nor did video or internet exist at that time, therefore they would be unprotected.

At the time the BOR was ratified, there were cannons. A howitzer is the modern day extension of a such a weapon. Just as a 9 millimeter pistol is the modern day extension of a revolutionary war era handgun.

That said, I don’t think everyone needs a howitzer.

I do not however agree with a “common at the time” reading of any part of the bill of rights.

If the first amendment jurisprudence is any guidance(and I think it has to be), the question of what is reasonable will produce a slew of different and inconsistent opinions on the matter. An obvious question is what is the standard of review for second amendment issues? What if the Court held that any restrictions on gun ownership are subject to strict scrutiny, the way content regualtions on speech are. I do not know is even a licensing system would qualify under that standard, at least as it is traditionally applied.

I think that it will be intersting to see if Scalia, with his preference for bright line rules, goes along with anything other than a bright line rule in this case.

In another issue that I do not see brought up is the fact that possession of a weapon is a crime in certain circumstances. Depending on how the Court rules, the case might open up tons of criminal appeals.