Court agrees to rule on gun case
FINAL UPDATE 3:20 p.m.
After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?
The city of Washington’s appeal (District of Columbia v. Heller, 07-290) seeking to revive its flat ban on private possession of handguns is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the Second Amendment right is a personal one, at least to have a gun for self-defense in one’s own home. (The Court took no action on Tuesday on a conditional cross-petition, Parker, et al., v. District of Columbia, 07-335, an appeal by five District residents seeking to join in the case. The absence of any action may mean that the Court has decided not to hear that case. If that is so, it will be indicated in an order next Monday. The Court also may simply be holding the case until it decides the Heller case.)
The Justices chose to write out for themselves the constitutional question they will undertake to answer in Heller. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.
Here is the way the Court phrased the granted issue:
“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?”
The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident — have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.
The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states.
Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.
One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that….So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.”
The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.
Additional grants on Tuesday:
The Court also granted review on Tuesday of the question of whether federal labor law bars a state from forbidding a company that receives state funds from using any of those funds to speak out on issues in bargaining with a labor union. That case is U.S. Chamber of Commerce, et al., v. Brown, et al. (06-939). The U.S. Solicitor General, asked by the government for its views on the case, urged that review be granted. At least 16 states have laws or are considering laws like the one in California at issue in the case.
The Court also said on Tuesday that it will hear an appeal by Alabama’s governor, Bob Riley, in a voting rights case — but will not necessarily decide the merits of the appeal. The Court postponed the question of its jurisdiction until its hearing on the case of Riley v. Kennedy, et al. (07-77). That means the Justices will, indeed, hear oral argument, but will focus part of that argument on whether the case is properly before them. The other side in the case contended in its response that the state officials waited too long to file their appeal, thus depriving the Court of jurisdiction.
The merits issue raised by the governor is whether rulings by state Supreme Courts on the meaning of state or local election law do bring about the kind of changes in voting rights that must first get federal clearance before going into effect — for those states and local jurisdictions that are covered by the pre-clearance requirement of the Voting Rights Act’s Section 5.
These other two cases, like Heller, are likely to be scheduled for argument in the March sitting that begins on Mar. 17.
And just last week we were talking about: “Supreme Court takes no action to consider the political and social implications of doing the right thing.”
Good work to hear this case. Of course if it is considered a collective right then all the other rights will have to be considered collective as well (such as the 1st Amend, etc). After all the Founding Fathers were all about the individual …………..
Comment by Dan Passaro — November 20, 2007 @ 1:35 pm
The shot heard ’round the world was not fired in vain! To quote General John Stark, “As I was then, I now am, the friend of the equal rights of men, of representative democracy, of republicanism…and of course a friend to the indissoluble union of these States. I am the enemy of all foreign influence…the influence of tyranny. This is the only chosen spot of liberty–this the only republic on earth.” If the Supreme Court Justises know history, and I bet they do, the good guys have won again! The Bill of Rights is about individual freedoms, not prohibitions!!!
Comment by Dr. John D. Polt — November 20, 2007 @ 1:38 pm
What never ceases to amaze me is that people who argue for all sorts of expansive rights usually are the same ones who take a penurious approach to the Second Amendment, which, on its face, doesn’t allow the infringement of the right to keep and bear arms.
The militia argument has always seemed a canard to me. A law is almost never coterminous with the purpose it serves. So why is it that a categorical imperative here?
Comment by Sean O'Brien — November 20, 2007 @ 1:49 pm
I’ve written this a hundred times already, but the “D.C. is not a state” angle to DC v. Heller has always nagged at me. I get the feeling, based on the question presented for argument, that the Court is disinterested in that nuance and is going for a home run ruling, but still … *frets*
Comment by David Huberman — November 20, 2007 @ 1:54 pm
But couldn’t one argue that the “free state,” referred to is not the same as the “State(s),” referred to in the sixth and tenth amendments? It seems to refer more generally to a principle–a state (nation, republic, any other synonym you’d like to put here for clarity) free from tyranny, rather than a State needing to maintain its own militia. In that sense, it seems that whatever the amendment means, it has to apply to the entire nation, regardless of whether D.C. is a “State.”
Comment by Mortez Jackson — November 20, 2007 @ 2:10 pm
I just realized that both versions of the amendment–one with state capitalized and one without–are often used. Does anyone else think it makes much of a difference?
Comment by Mortez Jackson — November 20, 2007 @ 2:16 pm
Perhaps the “not affiliated with any state-regulated militia” wording reflects an early split between factions on the court, with some believing that the 2A applies only to members of an organized militia, and others believing that it applies more generally. Phrasing the question in the way they did gives both sides room to hear the appeal and rule consistently with his or her respective position.
Comment by Robert P. Firriolo — November 20, 2007 @ 2:16 pm
Lyle, when you write, “the hotly contested part of the Constitution that guarantees ‘a right to keep and bear arms’,” you prejudice the issue. What the constitution guarantees is “the right of the people to keep and bear arms.”
Comment by Munango-Keewati — November 20, 2007 @ 2:20 pm
More importantly, “the people” is a very distinct term in the Constitution from “the states”.
No one would argue the right of the people to petition the government for redress of grievances applies to state officials but not to individuals acting on their own.
Similarly, the rights to general free speech, religion, privacy and so on, rights reserved to “the people” are held not to be rights of state governments against the federal, but rights of the people against the nation.
Comment by Mickey Klein — November 20, 2007 @ 2:39 pm
This may seem a little militant. However, with the government attempting to exert even more control; we americans need to stand up. We need to quit watching ‘anerican idol’ and begin to pay attention to what’s really going on. When the time comes, and the government is knocking on your door to take your stuff, confiscate the rest of your freedom, and you’re left wondering what just happened, you’ll have no one to blame but yourselves. My own belief is the time is sooner than peopl think. I WILL stand for my freedoms. I am my own sovereign entity, as are everyone else in this country. And I will fight or die for it, period.
Comment by josh robison — November 20, 2007 @ 2:43 pm
The framing of the questions seems to indicate that individuals not affiliated with militias have rights under the second amendment and the issue is whether these laws violate those rights
Comment by Bill Primm — November 20, 2007 @ 2:44 pm
I don’t believe that D.C.’s non-state status is an issue. The core issue is whether the right to keep and bear firearms is a fundamental right applicable to citizens, as incorporated by the 14th Amendment. The distinction between “the people” and a “well regulated militia” is not going to be a determining factor, since Sup.Ct. jurisprudence has firmly established that “the people” (in the Bill of Rights) belongs to individuals, not to larger entities. Thus, when the Framers wanted to refer to “the State,” they called it the State (9th and 10th Amendments). But for crafting an opinion, I think that the law clerks better get real busy studying the underlying history that separates crew-served weapons and “specialty” weapons (like grenades)from the types of weapons that the Framers (or at least the Anti-Federalists) embraced.
Comment by Robert De La Cruz — November 20, 2007 @ 2:46 pm
Oh, and don’t forget, the oaths we took as military personell. To defend and protect the constitution and our country against ALL enemies, both foreign and DOMESTIC. Why do we even allow a man to remain in office, who is clearly tyrannical, and power hungry. And justifies his own breaking of the laws, by using terrorism as an aliby? A man who has called OUR constitution a “Goddamn peice of paper”. C’mon people it’s not the way things are written that are the problem. It’s what we as a people do with them, and unfortunately lately its been what we don’t do…
Comment by josh robison — November 20, 2007 @ 2:51 pm
George Washington himself during the 2nd Session of Congress:
“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty, teeth and keystone under independence. The church, the plow, the prairie wagon and the citizen’s firearms are indelibly related. From the hour the pilgrims landed to the present day, events, occurrences and tendencies prove that, to ensure peace, security and happiness, the rifle and pistol are equally indispensable. Every corner of this land knows firearms, and more than 99 and 99/100 percent of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms anywhere and everywhere restrains evil influence. They deserve a place of honor with all that’s good. When firearms go, all goes. We need them every hour.”
Comment by Ron Bokleman — November 20, 2007 @ 2:51 pm
One should not read into spelling, punctuation, or capitalization when interpreting documents from the Founding Era. The rules for those were not hard and fast, but varied from individual to individual.
Comment by David Lawson — November 20, 2007 @ 2:53 pm
I pray that intellectual honesty and an understanding of the framers of the Constitution win out over partisan thinking and terrible social engineering.
The right of the people shall not be infringed.
May God bless Americe for centuries to come.
Comment by William Lewis — November 20, 2007 @ 2:59 pm
Do we know how many and which judges voted for certiorari?
Comment by Kevin Pinto — November 20, 2007 @ 3:16 pm
Forecasted outcome: The first and third provision cited violate the strictures of the Second Amendment to the Constitution. The second, that prohibition on the carriage of a firearm, MAY be found sufficiently cloaked in the police powers as to be valid, but I don’t know the full context. It may be that this provision will be in de minimus violation and that it may be made valid when redrafted to conform to the courts opinion on the first and third provisions.
But, I don’t want to count the chickens just yet.
Comment by Mike Coster — November 20, 2007 @ 3:17 pm
The 2nd has variations of capitalization and punctuation (some versions have but one comma), depending upon whether the engrossed version or state ratifications are read. Everything was hand copied then.
Comment by David Hardy — November 20, 2007 @ 3:27 pm
Finally, perhaps, a breath of life for the Ninth Amendment, in an inversely logical sort of way. If “the people” have a right to bear arms, then the Constitution cannot be read to deny that right by a reading of the Second Amendment that would hold that only “well-regulated militia” have that right; especially since that “right of the people” is explicitly stated in the latter part of the Second Amendment. One cannot read the Constitution to deny the right of “the people” to bear arms by referencing the enumerated right of a well-regulated militia.
Nothwithstanding that D.C. is not a “State”; although, this could prohibit a helping hand from the Tenth Amendment.
I wish I could argue this case for the NRA.
Comment by Carson J. Tucker — November 20, 2007 @ 3:30 pm
At the close of the 3 week Pennsylvania ratification convention on 12 Dec 1787, the Minority presented one of the first articulations of a Bill of Rights. Their proposal was ignored by the Majority and the body ratified the “new plan” on the same day. Point number seven of the Minority’s list regarded the right to keep and bear arms.
“7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people public injury are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.”
The Minority published a slightly different version 6 days later in the Pennsylvania Packet.
“7. 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; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.”
This first draft of the Bill of Rights includes the “right to bear arms for the defense of themselves and their own state” and “no law shall be passed for disarming the people.” The second draft, later published in the newspaper, included no disarming of the people “unless for crimes committed, or real danger of public injury from individuals.”
These proposals were not adopted and made into law, but they acted as a foundation for later arguments. The later debates in Congress may have changed the meaning of these first drafts. I cannot comment on Congress’ debates because I have yet to read them. The debates may have changed the initial articulation into only arming a militia, but my impression is that was not the case.
Alexander J. Dallas’ Notes of the Pennsylvania Ratification Convention P.M. (December 12, 1787)
http://www.consource.org/index.asp?bid=582&fid=600&documentid=2051
The Dissent of the Minority of the Pennsylvania Convention (December 18, 1787)
http://www.consource.org/index.asp?bid=582&fid=600&documentid=851
Bill of Rights Legislative History Collection
http://www.consource.org/index.asp?bid=530&groupid=30
Comment by Eleesha Tucker — November 20, 2007 @ 3:35 pm
I suspect that the U.S. Supreme Court will punt in a unanimous, or near unanimous opinion.
I suspect that it will assuming arguendo, without deciding the question, that District of Columbia residents are protected by the Second Amendment, and that gun ownership is an individual right that does not require state militia membership.
I suspect that it will then reason that a requirement that pistols purchased after a certain date be registered, and that pistols be trigger locked or disassembled at home, is not a violation of the right to bear arms. They will reach this conclusion because the Second Amendment refers to a “well regulated” militia, which implies that the right to bear arms is subject, at least, to reasonable, non-prohibitive regulation. This is particularly likely with the second two ordinances.
I would expect to see Scalia or Thomas cited to some historical amicus brief describing the fact that in colonial times all adult males were considered part of the unorganized militia, a practice followed in most state constitutions, and describing a variety of state militia regulations in the 1790s which were expressly held in state courts to apply to members of the unorganized militia and which were more onerous than those in place in the District of Columbia right now.
I suspect that the guts of the decision, which may produce some concurring in result opinions, will be an analysis over whether the registration requirement amounts to a prohibition on the right to bear arms. The majority will likely find that on the evidence presented to the trial court it was not established that this was the case.
Alternately, it is quite possible that the court will punt on the question of whether a registration requirement amounts to a prohibition issue as well, remanding the question to the trial court to take additional evidence on the issue of whether or not the registration requirement amounts to ban on owning a gun.
Or, alternatively, it might establish a prohibition standard to trigger further analysis of other Second Amendment issues, under the “well regulated” exception, rule that, as applied, that a well regulated militia could bar this particular individual from owning a gun, and leave other analysis of the well regulated exception to another day.
Comment by ohwilleke — November 20, 2007 @ 3:36 pm
It seems that the Court has already decided that D.C.’s standing argument and the “D.C. is not a state” argument both lacked merit. That is not surprising. I was disappointed that the Court did not seek to re-examine the standing claims of the other plaintiffs. However, the justices may have decided that standing issues would only result in a lot of worthless beating around the bush. Might as well get to the red meat.
I still think it’s 7-2 for the individual rights view, with Justices Ginsburg and Stevens in dissent.
Comment by James N. Markels — November 20, 2007 @ 3:45 pm
The one aspect of today’s cert grant that is noteworthy is that the Court took a broader view of the question to be decided than did the Petitioner. In its petition, the District asked the Court to decide, “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” Thus, the District did not want to deal directly with the question of whether its regulation requiring stored long arms to be locked or broken down was constitutionally infirm. The Court, however, granted cert on the following question: “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?” It is the third of these regulations that requires even long guns to be inoperable while stored in the home, thus rendering them useless for defense purposes. Thus, the Court seems more interested in undertaking a holistic review of the District’s gun policies than in limiting its review to laws pertaining to handguns only. Accordingly, the Court’s question seems closer to the one advanced by Respondent, which asked “[w]hether the Second Amendment guarantees lawabiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.” Although I am not sure what to make of all of this, it does strike me that the Court is closer to reviewing the question presented by Respondent than the one offered by Petitioner. And, to the extent this suggests even a moderately greater chance that a portion of the District’s guns laws will be struck down (i.e. yes the 2 Amend protects individual right to bear arms subject to some regulation that would likely curtail concealed carry or allow firearm registration but not a total ban on keeping operable guns for self defense), that is a very encouraging sign.
Comment by Jay Sexton — November 20, 2007 @ 3:48 pm
ohwilleke, the registration requirement is not really at issue–D.C. law requires registration but does not allow registration of guns that weren’t already registered by 1976–in effect, making it impossible to legally own a handgun there.
It’s the militia that should be well regulated, not the people or the arms. But, of course, sophistry has no limit.
Comment by Munango-Keewati — November 20, 2007 @ 3:49 pm
Mortez Jackson: I don’t think the capitalization will matter in this case. The term “free state” and “State” probably refer to different things. Compare, for example, U.S. Constitution Article I, Section 10; Article IV, the 10th Amendment and the 11th Amendment.
The related issue which Heller will not address is whether the Second Amendment applies only to federal laws, or is incorporated through the 14th Amendment to apply to state laws as well.
The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. As a result, any ruling in Heller will be limited in effect to the District of Columbia, federal territories, and federal gun control laws.
The Court may also pay attention to the 16th and 17th clauses of U.S. Constitution Article I, Section 8, which provide respectively for Congress to provide for “disciplining he militia” and for Congress to make “exclusive legislation in all cases” in the District of Columbia.
Even if the Second Amendment trumps the power of D.C. to regulate guns, the Supreme Court might hold that Congress has the power to enact similar legislation under its power to discipline the militia, that it can’t delegate to a territorial government or a D.C. city council.
Comment by ohwilleke — November 20, 2007 @ 3:51 pm
Munango-Keewati, point well taken, but it would still be quite possible (and even probable) for the Supreme Court to hold that a ban on pistols alone, as opposed to all arms, is reasonable regulation.
In the same way, most military forces and state militias limit the kinds of guns that soldiers are allowed to use. The active duty military, for example, prohibits soldiers from using certain brands of body armor in Iraq, and has rather elaborate regulations governing who can use which kind of weapon.
Indeed, U.S. v. Miller presented a very similar issue. Can a particular type of small arm (automatic weapons, IIRC) be banned by the federal government? This is something quite different from a prohibition on an individual owning any firearms.
Comment by ohwilleke — November 20, 2007 @ 3:59 pm
Mr. Heller is claiming a right to register himself as a gun owner. He got jurisdiction in this case because he was denied his application to be a *registered* gun owner (technically, he wants to expand the scope of his pre-existing registration).
If gun registration violated the second amendment, Mr. Heller would lose the case even if there was an individual right to keep and bear arms. If gun registration violated the second amendment, he would have no right to register himself and his gun, even if he had the right to keep and bear that gun.
Comment by Robert Hilton — November 20, 2007 @ 4:07 pm
Correction to ohwilleke: Miller established:
“The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
I believe that this case was barely argued, because it would have been easy to establish that such a weapon does in fact relate to the efficiency of a well-regulated militia, it being a weapon that has been in common use by US military and police forces since well before Miller.
(For that matter, so have automatic weapons, although they were not at issue in Miller)
The same argument can of course be made for handguns, which are in universal use among military and police forces woldwide.
If the decision is for a broad individual right, it will still allow for reasonable regulation. The Districts law cannot be considered reasonable, since it is de facto prohibition, unless residents have access to a time machine…
Comment by John McEnerney — November 20, 2007 @ 4:42 pm
Mr. Hilton,
U.S. v. Miller was regarding a sawed-off shotgun. IIRC, the court found that because the defense had not made the argument that a sawed-off shotgun had a military purpose (Miller was dead at the time) there was insufficient justification for that class of weapon being prohibited from regulation.
I’m sure I’m mangling the exact legal argument. I don’t know much about law. I know a fair amount about guns, though.
(Hi James!)
Comment by Brian Hepler — November 20, 2007 @ 4:56 pm
Miller involved a sawed-off shotgun, not an automatic weapon. In today’s military, gorund forces regularly use shorter barrelled shotguns, and the finding, that Miller’s weapon was not useful for a military unit, might well not arise. At Miller’s time, most automatic weapons available would have qualified as “militia” weapons.
I think the “endorsement of a collective right” by Miller comes out of how the weapon was being evaluated, and as such had no bearing on an individual, human, right to self-defense.
On it’s merits, I don’t see the utility of Miller in defending the “collective right” thought, but I am not a lawyer.
Since I have however been stalked and threatened, which acquainted me with the sharp limits of police protection, I do hope for a strong endorsement of an individual right to effective self-defense which will be as vital now as when firearms are obsoleted.
Comment by Harry Schell — November 20, 2007 @ 5:36 pm
This case is an opportunity for the Court to right a wrong of a bygone era. The Miller case was nothing more than a one sided case to test the limits of FDR’s New Deal programs after his failed Court Packing Scheme. The rarely reported facts of Miller seldom are recounted, but Miller’s counsel was appointed to the State Senate before he could brief the case. Due to Miller’s dubious nature he was unavailable at the time of the argument before the Court and was unpresented.
Given that Miller was unrepresented and not even allowed to brief the Court, its not suprising that it was an 8-0 decision for FDR. Sadly, this mockery of the justice system for FDR’s partisan gains has been the defining gun control case for the last 70 years. Imagine the public outcry if Roe v. Wade was decided on such a sham of a proceding!?!?
For more on Miller please read:
http://www.kc3.com/pdf/PECULIAR_STORY_US_V_MILLER.pdf
Comment by Robert Foster — November 20, 2007 @ 6:48 pm
Consider that the words “well regulated” may have been used in a sense that was more common in those days. A “well regulated” clock was a clock that was “well functioning”, not “restricted by law” (the sense of the word “regulated” we are more familiar with these days). If the wording could be understood to have meant “A WELL FUNCTIONING militia, being necessary to the security of a free state”, perhaps we would be having an entirely different discussion today. Also note that this is a subordinate clause. The main clause “the right of the PEOPLE to keep and bear arms shall not be infringed” is written in plain (and quite terse) English that a person of average intelligence can understand and needs no interpretation.
Comment by Tom Ruggles — November 20, 2007 @ 7:53 pm
If I know Scalia, and I think I do, he will argue that there is an individual right for people to own the types of weapons typically used by militiamen in the 1790s, and that reasonable regulations on keeping them are okay, but that an effective prohibition on them is not okay.
Thomas will agree with Scalia, like he almost always does. So will Alito. Roberts will argue that there is an individual right to own any type of firearm that could have a reasonable relationship to use by a well-regulated militia, and he will also agree that reasonable regulations can be placed, but not an outright ban.
Ginsburg, Stevens, Souter, and Breyer will argue that Miller is precedent, and that the Second Amendment is a collective right.
What it really comes down to is what Kennedy thinks, and nobody knows. Since Kennedy seems to have respect for precedent, and he’s not usually a judicial activist, I tend to think he’ll side with Ginsburg, Stevens, Souter, and Breyer.
Comment by Christopher L. Ogden — November 20, 2007 @ 7:56 pm
As an attorney at law who has briefed and argued many constitutional issues, I always have interpreted the Second Amendment as follows: The people have a right to keep and bear arms, which shall not be infringed. Why? Because a well-regulated militia is necessary to the security of a free state. Who are “the people”? All of us, except those persons who have lost the right because of adjudicated mental incompetency or criminal conduct. What is “a well regulated militia”? A group of such people who, on short notice, can form themselves into an organized force, equipped with their personally-owned firearms, which they know how to employ effectively, for the purpose of providing the security, under the circumstances being faced, that is necessary for a free society. Why is such a militia necessary? Because there are governments, individuals, and groups of individuals who would deprive the people of a free society were there to be no such militia. How shall that militia be armed? With weapons sufficient to counter effectively the force being employed by those governments, individuals, and groups of individuals, who would deprive the people of a free society. Do not the National Guard and Military Reserves these days properly play the role of the citizen militias of the late 1700’s? No. Why? Because they are subjec to call-up by the federal government, which is the very government, more than foreign governments and state governments, and individduals and groups of individuals, which the Founders feared most. The federal government cannot be trusted, according to the writings of the Founder, to protect the very rights of the people which the federal government, most probably, is infringing! The dullest of us should realize that the fox cannot be trusted to guard the hen house!
Comment by James Lee Perry (Mr.) — November 20, 2007 @ 9:17 pm
Few, if any, constitutional scholars will today argue that Miller held for a collective right. It has been interpreted by circuit courts to that end, true, but those lower courts have no binding precedent on the USSC.
Under Miller, an M16 machine gun would clearly have been of use to the well-regulated militia, and I doubt that D.C. will want to argue that point.
Comment by Kevin McDonough — November 20, 2007 @ 9:23 pm
I don’t see how the “collective right” position holds water. Amendment 2 refers to the right “of the people”, which is the exact same language used in the other amendments.
So if the A2 right is “collective”, then so are all of the other Bill of Rights rights. And no one believes that.
Comment by Stephen Jaros — November 20, 2007 @ 9:25 pm
The “well regulated” argument (that it implies the founders meant that whatever individual right the 2nd grants is subject to regulation) is interesting, but a red herring, as are most anti-individual arguments vis-a-vis the 2nd Amendment.
From http://www.guncite.com/gc2ndmea.html:
The Random House College Dictionary (1980) gives four definitions for the word “regulate,” which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:
1) To control or direct by a rule, principle, method, etc.
2) To adjust to some standard or requirement as for amount, degree, etc.
3) To adjust so as to ensure accuracy of operation.
4) To put in good order.
[obsolete sense]
b. Of troops: Properly disciplined. Obs. rare-1.
So, clearly, “regulate” is not meant to imply additional laws, bureaucracy, governance, etc., but instead, order, discipline, and drill.
I agree that it will be close, but I think Stevens may be the one who sides with the individual-rights bunch. Why do I say this? Stevens seems much less likely to expand govt. powers at the expense of individual rights. And he’s more in touch with constitutional history. Some of his arbitration law and 4th Amendment decisions reflect this. These are just hunches, though.
I’m not sure how anyone can, just by reading the history of the writing of the Constitution, conclude that the rights are not individual. But that’s not going to save the Respondent here, as many Justices have eschewed that in favor of a “living” interpretation. Heck, some even looking to foreign law.
Comment by Robert W. Waddell — November 20, 2007 @ 11:26 pm
Oh how punctuation can be so revealing about intent. When they posed the question with these words, “state-regulated militia” a hyphen means the world. It means to me that if they had posed it as “state, regulated militia” instead of with a hyphen, then that could mean they were thinking either way, but by using the hyphen they are revealing that they already think the militia in the Second has to be a state-organized militia as I read it.
Seems as if they already decided that “regulated” means controlled and not “well supplied” back in 1790.
Comment by Mark Arthur — November 20, 2007 @ 11:28 pm
First the court seems to be phrasing the question as if individuals who were NOT affiliated
with any state-regulated militia have some kind of 2nd Amendment rights that may or may not have been violated and I hope that is what they are actually saying.
Two, well there is nothing about ’state-regulated’ in the 2nd Amendment (which kind of makes me wonder) so why is that even mentioned? Straw man argument? Well regulated is not the same as state-regulated. After all the Bill of Rights is for the people. I wonder if they phrased it like that for a purpose.
And ‘private use’? Is there a ‘public use’ for keeping them in ones home?
I feel, while it was worded oddly, it still covers the whole use of all firearms in ones home (but does not mention ‘bearing’ them or exactly what the 2nd Amendment is supposed to cover in or outside the home.)
It may not be 100 percent plus for us on the decision but whatever they leave undecided (haven’t they always) it will leave us room for another case.
Comment by Paul Hacker — November 20, 2007 @ 11:41 pm
Article II of the Bill of Rights is a Ciceronian model of a periodic sentence. The framers of the Bill of Rights were Classically trained scholars and rhetoricians, and in crafting the Second Amendment created a rhetorical metaphor that structurally and grammatically mirrors the rights of the people it sets out:
Article II is constructed of two dependent clauses which are mediated by a final independent clause. As a Ciceronian rhetorical model, it is elaborately ornate (as compared to the more spare Senecan rhetorical style).
As periodic sentence, Article II structures its first two clauses to depend upon the independent grammatical structure of its final clause.
Other examples of Ciceronian, periodic construction are contained in the first sentences of the Declaration of Independence and the Preamble to the US Constitution.
“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.”
Not only is Article II structurally elaborate, and rhetorically ornate, it is poetically metaphorical.
“A well regulated militia, being necessary to a free state” is NOT about “state’s rights” but rather signifies “a free state” of liberty.
“A well regulated militia” is discussed in Hamilton’s “Federalist” No. 29 “Concerning The Militia.” Hamilton and the framers of the US Constitution were conflicted about the potential for a government militia becoming the armed oppressive mechanism of a tyrannical government.
The framers of the Constitution held, as noted in the Declaration of Independence, that “governments are instituted among men, deriving their just powers from the consent of the governed.”
Accordingly, the government’s militia would be “well regulated” because holding the government’s military power in check by the consent of the governed is “necessary to the security of a free state.” Liberty requires that the army of the government be regulated by the people.
The necessity of a well regulated militia requires that “the right of the people to keep and bear arms shall not be infringed” because the regulation of the militia by the people is necessary to the security of liberty.
Grammatically, rhetorically, and in an elegant metaphor the framers of the Bill of Rights tell us that the security of liberty requires that the government militia be well regulated, and that “regulation” depends – grammatically, rhetorically, and politically — upon the uninfringed right of the people to keep and bear arms in defense against a tyrannical government.
It’s not about “states rights,” not about the establishment of a “state militia,” and it’s not about duck hunting.
It’s about the people’s right to hold the government in check though the mechanism of armed defense.
Comment by G. Alan Bergerson — November 20, 2007 @ 11:51 pm
I would appear that SCOTUS is telegraphing its decision on the conditional cross-petition. The whole point of the cross-petition was to reinstate the plaintiffs who were dismissed. That was being done for two reasons: (1) to challange the standing doctrines of Navegar and Seegars, and (2) to keep alive the challenge to the non-handgun regulations that are specifically cited in the Court’s rephrased question. By saying that it intends to review the effect on 2A rights of the non-handgun parts of the D.C. regulations — provisions that the Heller facts do not, on their face, raise — looks like telling tea leaves to me.
Comment by Donald Kilmer — November 21, 2007 @ 12:04 am
Does anyone honestly believe it isn’t an individual right?
If one applies logic, reason, and english sentence diagraming, english semantics and historical context, *NO* other conclusion is possible.
The only way to reach any other conclusion is to suspend reason!
Even the title screams individual rights, hence “Bill of RIGHTS”! Not to mention the second of ten rights!
Given the current administrations attempt to tramp our (the people’s) rights, one can only hope that our Supreme Justices will let reason rather than emotion carry the day.
As with all rights there are reasonable limits, but the extent of a right is a different discourse than the existence of that right!
Denial is dangerous, in human discourse!
Comment by Bruce Hutfless — November 21, 2007 @ 1:08 am
A comment about a fact that continues to miss reported to this day.
1) 1934 NFA prohibited the making of a rifle or shotgun with a barrel less that eighteen inches in length.
2) The shotgun is question was manufactured by Stevens as a double barrel shotgun with a barrel length a little less than seventeen inches several years prior to the passing into law of the 1934 NFA.
3) The defendant never made any modifications to the weapon in question and never alleged the defendant had.
4) Neither the defendant nor his consul were present.
5) The Supreme Court remanded the case, but no further action ensued, for a various reasons.
Thus then was never a final adjudication in Miller vs US.
Just for the record. Let’s try to keep it honest folks.
Comment by Bruce Hutfless — November 21, 2007 @ 1:38 am
It’s obvious there seems to be oneway slant on this issue. Posters in every conceivable blog seem to unanomously agree in a individual right in the home. Is there really any chance the SCOTUS could get this wrong?
Comment by James Camden — November 21, 2007 @ 7:04 am
Ron Bokleman:
That quote is falsely attributed to George Washington. He did not say any of that. Here is the website that details this:
http://www.guncite.com/gc2ndbog.html
This quotation, sometimes called the “liberty teeth” quote, appears nowhere in Washington’s papers or speeches, and contains several historical anachronisms: the reference to “prairie wagon” in an America which had yet to even begin settling the Great Plains (which were owned by France at the time), the reference to “the Pilgrims” which implies a modern historical perspective, and particularly the attempt by “Washington” to defend the utility of firearms (by use of statistics!) to an audience which would have used firearms in their daily lives to obtain food, defend against hostile Indians, and which had only recently won a war for independence.
The “99 99/100 percent” is also an odd phrase for 18th century America, which tended not to use fractional percentages. It’s clear that “Washington” is addressing “gun control” arguments which wouldn’t exist for another couple of centuries, not to mention doing so in a style that is uncharacteristic of the period, and uncharacteristic of Washington’s addresses to Congress, both of which exhibited a high degree of formality.
This is a false quote, but bits and pieces of it still continue to crop up from time to time. Even national publications, such as Playboy magazine, have been snared by it. (Playboy published the “quote” in December 1995 as part of an article entitled “Once and for All: What the Founding Fathers Said About Guns”. After consulting with an assistant editor of the George Washington Papers at the University of Virginia, Playboy published a lengthy correction in March 1996.)
The above analysis (by Clayon Cramer) was taken in part from a “talk.politics.guns” usenet FAQ. (Original source: Cramer, Clayton, Firing Back, 1995. Used by permission of the author.)
The Second Amendment Foundation (SAF) also comments (excerpted with permission) on the liberty teeth speech as follows: “This has several variations including ‘hour’ for ‘moment’ and sometimes added as part of an actual Washington quote ‘A free people ought not only to be armed…’ The various citations are even more numerous than different wordings: Address to the Second Session of the First U.S. Congress; Speech to Congress of January 7, 1790, printed in the Boston Independent Chronicle, January 14, 1790; the Federalist No. 53; Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 1785.”
Comment by Bradford Wiles — November 21, 2007 @ 8:31 am
One issue occurs to me and I’ve not seen it addressed here, although the circuit decision, and many articles (”The embarrasing 2nd Amendment” among them) did touch on it.
The argument goes that the well-regulated clause means that ultimately the individually armed citizens are the final ‘regulators’ of the state militia. Because the framers were opposed to a peacetime standing federal army, the state militias would be the only armed force readily available.
The question framed by the court, however, seems to presume only a ’state-regulated militia’, and precludes the argument for a state militia being well and finally regulated by the individuals. Have I mis-read or over-read the question?
Comment by G.B.Waterman — November 21, 2007 @ 9:32 am
I think the court *should* rule that:
The people indeed have an individual right to keep and bear arms whether or not they are members of an organized (regulated) state militia (they will likely limit it to small arms—I certainly don’t see a militia use for serrin gas or nukes and the likes since they are not defensive weapons).
The “well-regulated” clause applies to the state militia, not the people themselves. It lays the burden of training and disciplining the militia on the states.
Comment by David Lawson — November 21, 2007 @ 10:02 am
A Comment on The Bill of Rights:
How can people say that the second Amendment is not an individual right. Why would our founders make all the amendments about us as individuals and just not the second amendment? Bill of Rights if you say it Bill of Rights that means me as an individual whether I am apart of a group or not; but I am apart of a group I am an American and I stand with and by my Brothers and Sister.
Comment by James Pease — November 21, 2007 @ 10:20 am
18 U.S.C. 922(g) states that a respondent who is the subject of a “protective order” as that term is used in most states cannot “”purchase, receive, or possess a firearm while subect…” to the Order.
I wonder if, and I assume it will, SCOTUS rules that it’s a personal right etc… there will be a ripple effect on laws like this or whether it will be seen as a legitimate police power of the state?
Comment by Kerry Hultquist — November 21, 2007 @ 10:44 am
Now let’s address ‘reasonable’ restrictions.
I’m of the opinion that ‘my right to swing my fist ends at your nose.’ This means that rights are only curtailed when they harm another.
I think this is the basis for the limits on free speech. When speech causes harm it is not protected and the person who uses speech to harm can be held civilly and criminally liable. This addresses such things as libel and slander. Modern courts have held that truth is a protection against harmful speech (though this has not always been the case.)
So ‘reasonable’ restrictions on speech address how speech is used to harm someone rather than the type of speech or the technology used (printing press versus internet, etc).
What are ‘reasonable’ restrictions on the right to keep and bear arms? Seems logical that those restrictions should be analogous to the restrictions on speech. Use of firearms that harms another. To me, this would include things like murder, attempted murder, armed robbery, perhaps excessive noise in a residential neighborhood and the like. Background checks to prevent prohibited persons from obtaining firearms (at least via legitimate means) seems reasonable. Waiting periods, gun bans, transportation bans, excessive storage requirements, etc do not.
A great majority of the gun laws on the books and those proposed amount to prior restraint and therefore, in my opinion, do not pass constitutional muster. They are not reasonable.
It is said that ‘you can’t yell “fire!” in a crowded theater’. This is because you can create a panic that causes harm to others. However, we don’t prevent you from having the ability to do so. If there is a fire, you certainly need the ability to yell ‘fire’.
The same applies to firearms. You can’t fire your gun in a crowded theater. But should you be restricted from having a gun in a crowded theater? What if a madman with a firearm or other weapon enters the theater and begins killing people? You’d then have the right to fire in defense.
Comment by David Lawson — November 21, 2007 @ 10:47 am
Does the word “people” refer to an individual or a group of individuals? Here are some answers:
1. “How many people live in the world?” The answer according to the United Nations is, “5.8 billion”. UN website, link: www.un.org/cyberschoolbus/habitat/factgame/howmany2.htm
2. “…violence in Darfur that has caused the death of hundreds of people…” United Nations Secretary-General’s press conference, New York, 28 August 2007, link: www.un.org/apps/sg/offthecuff.asp?nid=1060
3. “Human rights groups say at least 3,000 people were killed.” BBC News, 25 September 2007, link: http://news.bbc.co.uk/2/hi/asia-pacific/7012158.stm
4. “Britain’s prime minister apologized Wednesday for the government’s loss of two computer discs containing the personal data of 25 million people…” CNN.com (Europe), 2007, link: http://edition.cnn.com/2007/WORLD/europe/11/21/britain.personal/index.html
I can live with that interpretation of the word people!
Comment by Dennie Warren Jr. — November 21, 2007 @ 11:52 am
[6] … –one with state capitalized and one without–are often used. Does anyone else think it makes much of a difference?
Briefly: No.
More lengthily: In current grammatical convention, we only capitalize proper nouns. In 18th century Conventional literary Discourse, any Noun which appeared in a Sentence might be Capitalized more or less at Will. People of that Time would recognize no Difference between the Words “state” and “State” in any written Instrument of the Law. So neither should we.
Comment by Alex Curylo — November 21, 2007 @ 12:02 pm
Well, at least most of the argument here focuses on what the founder’s “intent” was when they worded the amendment the way they did. Which is as it should be.
I just wish every case were argued like this, then we could jettison just about all of the warren-brennan decisions of the 50s - 70s.
Comment by Stephen Jaros — November 21, 2007 @ 1:07 pm
Does the word “people” refer to an individual or a group of individuals? Here is my answer: I can be both!
“We the people…” “The right of the people..” Last time I looked that included me. Me as an individual who is a part of this nation. Those are my rights and the rights that we share as Americans both individually and as a Country.
Comment by James Pease — November 21, 2007 @ 3:00 pm
Clever ruse . . . “People” as a collective. What your argument not so deftly evades is the ineluctable fact that references to “billions of people” signifies a very large group of INDIVIDUALS.
As regards the “meaning” or intention of “state” —
A “state” can be either a political entity like Iowa, or a characteristic like solid, liquid, gas . . . or liberty.
Regardless whether “free state” in the Second Amendment signifies “Iowa” or “;iberty” the inference to be drawn is the the security of a free state requires by necessity a “well regulated militia.”
When the government controls the firearms, the government regulates the militia.
The founders assert: “governments are instituted among men, deriving their just powers from the consent of the governed.”
The regulation of government and the government’s militia is necessary to secure a state of liberty, and so the right of the people to secure that liberty and to regulate the government’s militia shall be afforded in the people’s right to keep and bear arms in their own defense against a tyrannical government.
– Only the Founders pared it down to an eloquent 27 words.
Comment by G. Alan Bergerson — November 21, 2007 @ 3:07 pm
I did a lot of research on this in my undergraduate days. As long as the court looks at historical data that exists regarding the arguments made for the amendment in question (what the framers then were thinking as they debated it), then the individual right argument should be made glaringly obvious.
Also, as has been noted in earlier posts, “the right of the people” means the right of individuals in other amendments. Yet for some (obviously politically correct) reason, and due to the language of the Second Amendment, those who disagree (usually anti-gun zealots who wouldn’t know the first thing about any firearm, or how to properly use it) will argue the counterpoint.
I seem to recall a constitutional scholar named Joyce Lee Malcolm who did a lot of work looking up historical information which ends up pointing to an individual right. I also seem to recall seeing a breakdown of the language of the amendment, using the vernacular of the day and NOT our current day language. Sorry anti-gun people, it doesn’t mean what you think it means.
In the end I don’t know what to think. Even if the individual right is held to be the correct one, and Miller is rightfully struck down (as it is barely precedent to begin with, the case was a joke, as others have noted), I unfortunately don’t see it becoming the be all and end all of the argument on gun ownership in this country.
Legal and constitutional arguments aside, you cannot legislate human behavior, you can only try to enact controls that deter people from misbehaving in the first place. As long as sociopaths decide to vent their frustrations with firearms, the argument against lawful gun ownership will rage unabated.
By the way, fully automatic weapons (suitable to military use…see why Miller was a joke?) are legal to won, and are heavily regulated. They have also NEVER been used to commit a crime. It’s the illegally owned and/or converted ones that have been used in violation of law and reason.
Comment by Roger Duarte — November 21, 2007 @ 4:36 pm
Yikes.
I just discovered this site and thanks for some really great insight.
Particularly, thanks to G. Alan Bergerson whoever you are. Wish I had you as a law school professor….
@@@@@@@@
Comment by Paul M. Morris — November 21, 2007 @ 7:43 pm
Duarte: By the way, fully automatic weapons […] are legal to [own], and are heavily regulated. They have also NEVER been used to commit a crime.
I think fully automatic M1 Thompson Submachine Guns (aka “Tommy Guns”) were used in at least a few crimes during the 1920s.
Also, Clyde Barrow (of Bonnie &) used a Browning Automatic Rifle (BAR) during some of his crimes, a fully automatic 7.62×63mm light machine gun . . .
And if you include illegal activities by the U.S. government and by drug-related gangs, I’ll bet there have been quite a few fully automatic weapons used in crimes.
Comment by Daryl Herbert — November 22, 2007 @ 12:59 am
Here’s a link to DC v. Harris 07-290:
http://www.scotuswiki.com/index.php?title=DC_v._Heller
– More parsing of the legal issues than I can muster.
I teach English, rhetoric/composition and linguistics. But also, I have an interest in New Historical Criticism which seeks to analyze a text within its historical framework and in light of the contemporary lexical usage.
Hamilton, in “The Federalist” No. 29, “Concerning the Militia” wrestles with the balance between the government maintaining an armed force (militia) and the people regulating that armed force.
The Napoleonic Code held that the “King” owns the property, the guns. British Common Law (James I if I’m not mistaken) holds that the people own the guns, own their property.
This is where the Lockean idea of “Life, Liberty, Property” emerges . . . Later changed in the Declaration of Independence to Life, Liberty, and Pursuit of Happiness.
Here’s a link on that concept:
http://en.wikipedia.org/wiki/Life,_liberty_and_the_pursuit_of_happiness
Either the government owns the guns or the people own the guns. Since the US government derives its just powers from the consent of the governed, it must be the people who own the guns.
Comment by G. Alan Bergerson — November 22, 2007 @ 4:30 am
The intention of every word written in blog 52 is to highlight the irony of those who take the liberty of using the word “people” when referring to individuals, but claims it says otherwise as used in the Second Amendment. I would apologize for doing so poorly, but I am still raptured by this news! Sorry.
The Second Amendment SHOULD guarantee all law-abiding US citizens the individual right to keep and bear arms; just as the Founding Fathers intended, but I believe it doesn’t anymore and that makes me sad.
I hope that the Court rules in favor of firearm owners and releases its decision on July 4, 2008. I intend to have the Supreme Party of my life!
Comment by Dennie Warren Jr. — November 22, 2007 @ 5:20 pm
Regarding the SCOTUS use of “state-regulated militia” in their rephrased question, I believe this is a direct reference to the argument presented by D.C. Since D.C. is not a State (can’t resist the cap), citizens of D.C. can’t be militia members and thus have no second amendment rights.
Comment by Munango-Keewati — November 22, 2007 @ 10:14 pm
“Free state” isn’t about state rights. It’s a condition of liberty. If you can’t read it both ways, you can’t interpret it either way.
Comment by G. Alan Bergerson — November 23, 2007 @ 3:59 am
We have seen the words “state”, “militia”, “regulated”, “people” and “bear” sliced and diced, analyzed as to the probable usage by the founders. Any English professors out there with some historical research background want to take on “Shall” and “infringed” as used by the founders?
With over 26,000 local, state and federal gun laws on the books (having more effect on the general population than criminals), there is a better than an even chance that the second amendment is being infringed.
Comment by Tom Ruggles — November 24, 2007 @ 3:14 pm
You can look in your OED (Oxford English Dictionary) and you’ll find that “shall” is an emphatic form of future verb tense. When the “shall not” construction is used it means “under no circumstances at any time now or into the future.”
It’s a verb tense construction and as such retains a constant meaning just like the fixed subject nouns “I, you, he, she, it, we, they.” There are fixed vocabulary forms in language and changing forms.
Verb tense formation is pretty much fixed. Words such as “militia” change meaning and context but grammatical structures such as “shall not” remain constant in the language.
“Infringed” means in essence “to tatter at the edges.” It derives from “fringe” in Middle English and “frange” in Old French, from Latin “frimbriae” and denotes “an edge, border or threads.”
That’s Intro to Sociolinguistics, my field.
Comment by G. Alan Bergerson — November 24, 2007 @ 8:45 pm
maybe the founding farthers ment we the people are the well regulated militia.
Comment by David Freitas — November 25, 2007 @ 2:43 pm
Reasonable restrictions, like those of the other rights do not translate well to the public in the case of firearms. If you restrict guns like free speech, it would mean anybody could buy a gun regardless of history or condition and the law would only restrict how they use it - like free speech.
Perhaps that might work if the laws were so stiff that you do life in prison without parole if your crime involves a gun. That doesn’t seem feasible but it’s a point of comparison between the 2nd amendment and other rights.
Comment by Robert Conrad — December 1, 2007 @ 10:09 pm
.
Daryl If the use of any tool in a crime were the bases for banning or regulating its legal use then hundreds of everyday items could be banned. Only the act of using the “steak knife” to harm another can or should be regulated as a crime not the possession. As the law is now only the “rich” can legally afford automatic weapons excluding the majority of law abiding citizens. How does government regulate which law abiding citizen can or cannot own an automatic weapon? The tax stamp is $200 and automatic rifles are over $10K As it stands right now owner ship is really regulated in the market place by the cost.
Comment by Greg Trojan — December 1, 2007 @ 11:35 pm
One more thing about owning fully automatic weapons is important. When you agree to a class III license to own a fully automatic weapon or suppressor (commonly known as a silencer), you also must give up your Fourth Amendment rights. The police / BATFE can come to your house anytime, day or night, and check for possession and storage compliance of the firearm, as well as anything else that may be of interest to them.
I hardly think that this is what the Founders had in mind when they wrote the Second Amendment. I don’t think you should have to trade one part of the Bill of Rights for another.
SCOTUS should hold that it is an individual right, and that “shall not be infringed” means that prior restraint in the form of licensing for automatics, suppressors, etc. is unconstitutional. What part of “shall not be infringed” is not clear?
I hear the “fire in a crowded theater” argument for restricting Second Amendment rights all of the time. However, there is a major fallacy in that argument when looking at the guns situation. Nobody duct tapes your mouth shut when you go to the theater because you might yell “fire”. When you restrict someone’s gun rights because they might do something rash, that is prior restraint.
Additionally, yelling “fire” is not illegal, and indeed necessary should there actually be a fire. Just as having a gun and shooting it is not illegal, when defending your life. Restricting a right because you might do something is fundamentally contrary to the spirit of the Constitution. Should we restrict women from walking down the street because they might engage in prostitution? Should we take away all computers because someone might commit libel?
Comment by Bradford Wiles — December 2, 2007 @ 11:17 am
Too bad New York Times Editor Raymond is not around to testify –
http://adamant.typepad.com/seitz/2007/04/punchy_editoria.html
He certainly could speak ad rem to the role of the Second Amendment in defending the First
Comment by Russell Seitz — December 3, 2007 @ 1:20 pm
Everyone, including the Supreme Court justices, is in luck. There is a forthcoming book about the Second Amendment by the editor of the document collection that the circuit courts have extensively cited in their individual rights rulings concerning the Second Amendment. The document collection is The Origin of the Second Amendment. The forthcoming book, available in mid-December, is The Founders’ View of the Right to Bear Arms - A Definitive History of the Second Amendment.
Once this new easy read covering the most relevant information is combined with the complete Constitutional Era source collection on the Second Amendment from Golden Oak Books, be prepared for Heller’s 9-0 Supreme Court victory protecting his fundamental individual rights.
Comment by David E. Young — December 3, 2007 @ 11:05 pm
Once last comment here from me. I don’t care about precedent or interpretation or any of that. Original intent is all that matters, especially considering how twisted the 2A has become. The writers of the US Constitution were quite clear that the 2A is an individual right and it was meant to remain that way. The intention for including it was so that the individual would have the power to resist a tyrannical gov’t (as was the case with England’s control of the colonies, taxes, gun confiscations, etc). Governments understand this and therefore seek to remove or otherwise legislate into oblivion the ability to personally own this “power”. Consider how tyrannical governments usually begin by disarming the populace ………..
Comment by Dan Passaro — December 5, 2007 @ 11:35 am
The Gun Control Act of 1934 - Imposes a “making tax” of $200 for manufacturing a National Firearms Act (NFA) weapon for personal use, a “transfer tax” of $200 for registration changes of NFA firearms not defined as Any Other Weapon (AOW){which had a “transfer tax” of $5.}
Gun Control Act of 1968 denied acceptance of transfer taxes for imported NFA firearms (machine guns) for personal possession.
The Gun Control Act of 1986 denied acceptance of transfer taxes for domestic manufactured NFA firearms (machine guns) for personal possession.
Why did the congress and SCOTUS recognize an individual right back in 1934, and what makes you think that the current SCOTUS will not see it today?
Comment by Frank Castle — December 11, 2007 @ 5:27 pm
Please note that 18 USC 921, which defines terms in
§922, defines DC as a state for fed gun control issues.
Comment by John C. Tate — December 22, 2007 @ 2:13 am
Anyone who has recently served in the National Guard, which is touted by the “collective Right” interperters, will readily attest the posession of a firearm and the circumstances of when it’s use may be permitted, is strictly controlled. There is NO “Individual right” to bear the arms, in the National Guard (”Milita”). Your use of those arms you are issued while in the Milita (National Guard) is purely under orders and at the whim of your Superiors. You can be disarmed at any time at the whim of your superior officers. If individual initiative is used to decide when there is a need to use those arms, as in cases when this use may conflict with the stated Rules of Engagement, you can and probably will be brought up on Courts Martial. This can extend into incidents where you perceive a threat and believe your life is in danger. This is not as prevalent in the Regular Services, but given the “Volunteer” organization of our State Militas, many Guards have been brought up on charges for “wrongful use of a Service Weapon” by nervious, and maybe inexperienced, superiors. Been there, Seen that…………..
No, it’s clearly NOT about the milita. It’s an individual RIGHT. It is NOT a privlege to be granted by a faceless government servant to those whom they favor and denied those for whom it is “inconvenient”. It IS NOT a “favor” that can be withdrawn at the whim of those in Government. The 2ndA makes those who would seek to oppress the citizenry very nervious. That was the intention when it was made part of the Constitution. No matter what has happened recently in the Great Experiment in Civilian Disarmement in Great Britan and Australia; it has to be remembered the residents of those nations are “SUBJECTS”, not CITIZENS. The rights and privleges in those fair lands flow downward from a highly centralized benevolent and all-providing national government. Our Government’s powers originate from and are at the pleasure of, the CITIZENS. We have the right to resist; they do not. They do not even have the individual right to armed self-defense - the use of arms is the right solely of the Crown. The individual posession of firearms, a privelege in the Brithsh Empire, was made a right for a reason when the constitution was drafted.
Comment by William F. Wood — January 7, 2008 @ 11:19 pm
The use of “milita” in the constitution does not refer to a “state-regulated milita.” It follows directly that very way the question has been formulated by the supreme court according to the above article is both disingenuous and wrong.
Here’s why: The milita, in the parlance of the day, was any male who was physically capable of fighting. With or without being called up for service. A well regulated milita meant an armed and able male that was consistently armed and ready. They were quite specific - what weapons, how much powder, etc. Look it up; these are facts. The security of the nation that everyone is so focused upon was the security to be able to FORCE the government to comply with its charter. Look it up. Jefferson et al, Federalist papers, etc. It wasn’t the security of the government from the English or pirates or other external threats they were talking about. The “why” of the prefatory clause is still an issue today; perhaps more so with our chief executive breaking the law left and right.
This why the prefatory clause, the one talking about the milita, does not imply that citizens have no individual right, and sensibly and clearly supports the extremely specific “the right of the people to keep and bear Arms, shall not be infringed” in the operative clause.
If we want the constitution to mean anything other than what it says - which is that the people’s right to bear arms SHALL NOT BE INFRINGED, then there is a mechanism for that - it requires amending the constitution.
Quite aside from the misunderstanding of milita and the pendant Alice-in-Wonderland reasoning we hear all too often today, there is a much simpler edge that divides the 2nd amendment: The first phrase is prefatory - doing a little explaining - but it is not operative in any sense; meaning, it specifies no action to be taken or allowed to be taken by the federal government. The second phrase is the operative clause, and there is absolutely zero waffling or conditional component to it: SHALL NOT BE INFRINGED is as clear today as it was the day it was written. SHALL NOT. Period. End of story. So - even were the modern-usage folks right, presuming those Authors back in the day could anticipate today’s entirely different usage of the word “milita” - the operative clause still means just what it says, and the ONLY way that the people’s right to bear and keep arms can be infringed using legitimate authority derived from the constitution is to amend the document.
In the meantime, ALL laws and “rulings” that infringe our right to bear arms, regardless of what capacity or caliber, are UNCONSTITUTIONAL and are the result of government misbehavior that does not descend from authority granted by the constitution. Consequently what we have is use of assumed power, as opposed to use of granted authority. This is the hallmark of a dictatorship, and avoiding such is the precise reason that the 2nd amendment was put into the document. Read the federalist papers. It’s just that simple.
The only real problem here is the apparent presumption by (at least some of) the Authors that the government would obey the constitution in good faith. That, sad to say, has turned out not to be the case, from the unbelievable gymnastics employed to mutate the commerce clause into its exact opposite meaning to the use of the 2nd amendment to actually INFRINGE the PEOPLE’s right to bear arms.
In the end, it doesn’t matter (in terms of legitimacy) what the supreme court rules here, because the constitution is a higher law; without constitutional compliance, the supreme court has no authority at all. Citizens do have the right to bear arms. There’s nothing, short of a constitutional amendment as previously mentioned, that the government can do about it that can trace any authority back to the constitution. It does matter, of course, in that by disarming the citizens, the government exercises power not granted to it. You should think about that and decide if you like it. After all, perhaps you *want* to live in a dictatorship.
Just don’t let that word “milita” confuse you. Do a little research. Find out what it meant when they wrote it; in that effort, you will learn what they meant to say across the entire amendment, and probably no surprise, it isn’t opaque, contradictory, or difficult to understand at all. These people were not trying to be difficult to understand. When people read the constitution and do find it difficult to understand, you should immediately suspect their knowledge of context. Likewise, if you have trouble, start studying the papers of the times. It is worth it - because if our constitution can be circumvented and we accept that, then we’re not the nation we claim to be. But you MUST understand the document in order to defend it.
Comment by Ben Williams — January 8, 2008 @ 9:17 am
My compliments on the excellent post, Mr. Williams. If I failed to make myself clear in the initial paragraph of my posting, I apologise, and in rereading my post, I am afraid I did argue with some ambuguity in the opening paragraph. I can only offer it was very late, and I was VERY tired. My understanding of the true meaning of the term “milita” in the 2ndA is exactly that which you explained. I was attempting to make the point of what I have been told by countless gun-phobic collegues, teachers and even members of my own family, namely, the 2nd amendment is simply a guarantee that the individual states have the freedom to form their own armed forces, seperate from the National forces.and if one wants access to a firearm (as in organized target competition), one must join and support the “milita” (I.E.: State National Guard). I even had one well-meaning collegue explain to me, as one would explain simple truths to a child, that this was another example of the infallibility of the Constitution, where by the Founding Fathers, in their wise way, had anticipated the problems we would have with “rampant” firearms ownership” and had devised this escape mechanisim whereby the “Needs” of the State were served (citizens trained in firearms use,) but in a “safe and secure” environment. Yes, she actually believed this specious explanation and quoted Chapter and Verse to support this claim.
Again, I am securely in your corner. I actually have been a Rev. War reenactor in the past. I am well aware of the requirements (”Belleye Box for Cartridges, 3 sharp flints, a spare “scouring Stick, powder, ball and . ( use both as an “instrument of War” and a hunting firearm. That was the point I attempting to make. Sorry if it “Lost in the translation”
Comment by William Wood — January 10, 2008 @ 1:26 am
In drafting the Second Amendment, did the Founding Fathers really intend that the last line of defense of the People’s Liberty be entrusted solely to the State governments and not the People themselves?
Comment by David M. Bennett — January 15, 2008 @ 8:53 pm
Every individual has the right to defend themselves. There is something terribly wrong if the Supreme Court does not recognize this as an individual right. I am pretty sure that violent criminals do not care about this huge decision anyway, they will still have the guns.
Comment by Gary Holt — January 16, 2008 @ 3:39 pm
Was the Second Amendment placed into the Bill of Rights solely to ensure the security of state governments against the yoke of a federal government or was the Second Amendment actually intended to ensure the life, liberty and happiness of the People, that they might continue to be sovereign Citizens of a free-state?
Comment by David M. Bennett — January 16, 2008 @ 4:35 pm
I have had and still do have guns and if you think by changing the laws so only the police and the bad guys have them that is not a good thing for anyone.We need to be able to protect our familys and it is our right to have them I hope we never give up that right Thank you
Comment by Jack L Jackson — January 21, 2008 @ 7:40 pm
I’ve researched this in detail as have many that have posted. Here’s my take (it’s a simple one):
1. It’s an individual right. “Militia” is defined multiple places as every able-bodied male above the age of 18 (some say 16). Given the equal-rights changes since it was written, I’d say it means EVERYONE.
2. Keep and Bear arms means just that. People are allowed to own and carry weapons as they see fit.
3. Shall not be infringed means just that. No government should prevent me (in any way) from owning any weapon I see fit. If I want an M16, it’s mine. If I want a bazooka, it’s mine. Prosecute doing something bad, not owning an object.
Some are going to say that I can own M16’s, etc. now, and that’s true in the most simple legal terms, but not in practice. I’m also going to clarify a little bit of mis-information that has been posted.
1. The National Firearms Act of 1934 puts a $200 tax on automatic weapons, silencers, etc. This tax is to be paid every time a weapon is transferred (sold). There are $5 taxes on AOW’s.
2. The Federal Firearms Act of 1938 mainly added the FFL requirements, so there’s not a lot of change to NFA weapons.
3. The Gun Control Act of 1968 made it illegal to import NFA weapons. It also modified the registrations required by the NFA since it was ruled unconstitutional by the Supreme Court.
4. The Firearm Owners Protection Act of 1986 (yes, that’s the real name) made it illegal for citizens to own NFA weapons made after May 19, 1986.
Take an M16 for example. It was made in the US, so 1968 didn’t apply and was made before 1986. Before this point, you could buy one for about $700 in any well-stocked gun shop. The current going price for transferable ones is $20,000. If you want an FN P90, you’re out of luck since it was made after 1986 (and outside the US).
You don’t give up your 4th Amendment rights to own NFA weapons, they’re just really hard to get, and really expensive. An M16 is actually at the lower end of the cost scale. M60’s and Mini-guns are well over $100,000. Some get into the millions becuse they’re so sought by collectors. The process is just filling out a Form 3, getting local law enforcement to sign it (good luck), then send the form and $200 to the ATF. About 6 months later you’ll get your tax stamp and you can buy the weapon…. This is if it’s not illegal by state or local laws. For instance, I’m in Missouri, and I can have automatic weapons, but no supressors….
It is possible to own weapons outside the limitations mentioned if you are a “Special Occupational Taxpayer” or SOT. This is also called a Class 3 Dealer. These are the guys that sell NFA weapons to the military and law enforcement. By having this FFL, you are subject to ATF searches, as are all FFL owners. This means you do give up some 4th Amendment rights.
Regarding if a legal machine gun has ever been used in a crime, the answer is yes. Once, by a cop, who shot a cop…..
Comment by Danny Elliott — February 4, 2008 @ 4:04 pm
Just a few comments in passing, after reading over the comments on this page (nice discussion, by the way).
In legal parlance, “shall” is indicative of a word of command.
Strained readings of the Second Amendment to favor a collective rights interpretation find no sanctuary in twisting words around, nor in reading the wording of the Second Amendment to mean something other than it states, because no mere exercise of the art of lexicography can alter the essential nature of an act or a thing (United States v. La Franca – 1931).
A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. (Perrin v. United States – 1979). Therefore, the words “right of the people to keep and bear arms,” as used in the Second Amendment, cannot be properly read to mean that the militia, and not the people, possesses the right to keep and bear arms.
It is a canon of interpretation that real effect should be given to all the words of the Constitution (Myers v. United States 1926). Thus, the Second Amendment cannot be properly read to mean that its words are without effect and mean nothing.
A collective rights interpretation would actually be detrimental to the States. The police power is a far broader and more substantial basis whereupon to erect a power to arm militias and police forces than the Second Amendment. No “guarantee” of the police power of the States was needed, in the form of the Second Amendment. The states existed before the Constitution, and, consequently, their legislative powers antedated the Constitution (Carter v. Carter Coal Co. – 1936). The power of States to arm and equip their respective militias and police forces is not derived from the Constitution, but from the police power of the State, which preceded constitutions and legislative enactments.
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself. Federalism secures to citizens the liberties that derive from the diffusion of sovereign power (New York v. United States – 1992).
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence (United States v. Cruikshank – 1875). The basic right to keep and bear arms is properly termed a pre-existing right, one which is fundamental to – and implicit in – the very concept of ordered liberty upon which our constitutional system was founded!
Comment by Charles R. Mosteller — February 4, 2008 @ 4:33 pm
1.) Anyone who believes that founding fathers who created the electoral college system because they believed the uneducated rabble couldn’t be trusted completely with their vote would then give that same rabble unbridled access to any weapon that could ever be devised really just doesn’t get it.
2.)Grants the right to keep and bear arms, it doesn’t say anything about what arms, how many, in what form, or how regulated. Perhaps a sling-shot could be enough. Perhaps a butter knife. Does it say percussion weapon? Nope, says ARMS. Can’t go “interpreting” with your opinion Mr. Judge, must be literal. Doesn’t say functional either. Disassembled is fine, they can be made functional in short order for service in the militia. And it only grants the right to use them in the militia or with regard to serving in the militia, regardless of whether it protects the individual right to keep’em and bear’em. Individual rights are really sparse in this amendment…if you read it without the eye of a judicial activist.
3.)Finally, a well REGULATED militia. Hmmmm….Hmmmmmmmmmm. Really hard to understand what they meant by that.
I expect Roberts has enough integrity not to make a ridiculous ruling. Scalia, Thomas, Alito I’m afraid will probably embarrass the court.
Comment by William Schledlup — February 7, 2008 @ 7:07 pm
Mr. Schledlup…
I am in awe of your keen insight, given it is in stark disagreement with the previous 83 posts.
Perhaps it is you who “… really just doesn’t get it.”
It would seem reasonably apparent to any perceptive reader of the 2nd Amendment, individually and within the context of the entire document, that it is indeed an individual right as presented. Any other interpretation is so obviously contrary to the goals and beliefs of the Founding Fathers as to be unimaginable.
Comment by Michael Samuels — February 8, 2008 @ 11:15 am
Mr. Samuels, what a powerful argument. Everyone with an agenda disagrees with me so I’m wrong. Anyone reading the amendment and concluding differently than you is wrong. Wow, I guess that settles it.
Except…
3rd amendment…the Owner.. individual right.
5th amendment…no person.. indvidual right.
6th amendment…the accused.. individual right.
people…plural, person singular. Yes, contrary to popular belief, the writers of the Constitution unlike many modern Americans, did indeed understand basic grammar.
I also outlined in my previous post how an individual right could be construed by the second amendment but that it in no way would prevent regulation of what kinds of weapons could be owned, how many, for what purpose, and how they would have to be stored. At best, it prevents the Federal Government from banning wholesale, the possession of weapons by individuals belonging to State Militias. It is a very big reach to conclude there are any other rights involved.
Finally, lets talk about context. This is something those who hope to see a right to armed paranoia vs. the government upheld often use to attempt to justify their arguments. At the time of writing this “living”, “breathing” Constitution, the concept of a large, professional, standing Army in the U.S. was so far beyond imagination that they could not have possibly conceived of the current situation. Armys large enough to fight large wars at this time were composed of militia until such time as large numbers of regular troops could be trained, or what professional units existed, could be moved to the area of conflict. In cases where this scenario didn’t exist, such as in France, a totalitarian dictator militarized his country to facilitate conquests. Britain, with a huge empire produced troops to garrison and hold that empire, and funded those forces with her Empire. Most countries experiencing any kind of peace for even short periods of time did not waste resources on large standing armies. No income tax then. To write a Constitution dealing with a situation otherwise would have been inconceivable. All “context” does for the argument on the side of an individual right is to place the Second Amendment in the class of archaic law, to be ignored, and if impossible to ignore, necessarily repealed.
Such energetic defense of a law that would rank right up there with prohibition of fornication, blasphemy, adultery, or cursing in front of a woman tarnishes the spirit of the Constitution.
Of course, if you would like to disband the majority of the military and revert to reliance on State militias, that is a perfectly legal and Constitutional response. I expect each state will want at least a proportional share of the nuclear stockpile. Should be quite fun to watch. Or do you argue a right to individual thermonuclear protection? If you truly believe that this is an issue of preventing a Federal despot from trampling your rights then a few M16s clearly won’t cut the mustard. I’ve heard the new armed unmanned vehicles strike fear in the hearts of rabid Iraqi insurgents. If you want to compete with Federal armaments, you’ve got a long way to go. What arms can be prohibited, and legally, how can that be justified? I’m curious. I’d love to own an M1A1. Clearly, if this amendment was written to provide individuals with the ability to stand up to their government by force of arms, clearly the Federal government cannot prohibit the possession of ANY form of arms, and most specifically, cannot prohibit the possession by an individual citizen, any form of arms which the Federal government itself is in possession of. Even if this is exactly what the 2nd amendment says, the existence of laws preventing ownership of tanks, nuclear material, artillery, warplanes, and missiles have made the de facto law of the land something very different. I don’t doubt the Supreme Court is capable of ignoring the facts, and the law, and manufactering some sort of hybrid right that extends only to individual firearms, but it won’t be Constitutional. Then again, Dred Scott and separate but equal are only two of dozens of examples where the Constitutionality of a ruling was at best a marginal consideration for an activist judiciary. Why should this case be any different?
Comment by William Schledlup — February 8, 2008 @ 6:44 pm
The National Guard was federalized from the State Militiae in 1903. It’s paid by the fed, commanded by the fed and armed by the fed–all weapons are “US Property.” The governor may only issue such orders as do not interfere with the Fed orders (Perpich vs DoD. 1990?). If and only if Fed permission is obtained, may live ammo be issued to Guard troops on state orders (Art I, Sec 10, Para 3, US Constitution).
It is not a “militia.” It is a reserve of the respective armed force (Army or Air Force) and supported by the states as a form of exchange so they may call upon it for unarmed local service in extremis. The states may not provide weapons under any authority.
And if the Constitutional Amendments don’t apply in DC, I’m moving there at once. No income tax (16th Amend ment). I’ll also pursue a class action suit with all DC residents to recoup all such tax collected without authority.
Comment by Michael Z. Williamson — February 9, 2008 @ 1:26 am
While it is a nice academic argument as to whether tanks, nuclear material, artillery, warplanes, and missiles are the type of ‘arms’ protected by the Second Amendment, there is no doubt that firearms, of the type normally issued to the common soldier, certainly are protected by the Second Amendment. The only real question posed by the Heller Case is who are the holders of that Second Amendment Right? Are they they States, National Guard soldiers, or individual citizens, i.e. you and me?
How is it possible for learned men to even muddle up such a clear-cut case as this by arguing whether this or that arm is protected when no matter which of the views above is held, the ‘arms’ in question certainly include firearms. Why are we even worrying about what arms are covered when it has yet to be decided who the holders of the Right in question are? If the collective-rights view prevails are the same critics going to say that the National Guard must turn in their tanks, airplanes and missles should the Federal government order them to do so?
Comment by David M. Bennett — February 10, 2008 @ 8:44 pm
Agenda Mr. Schledlup? You failed to cite the 1st and 4th amendments. Something there in passing about ” the people ” I believe.
Comment by Craig Canales — February 12, 2008 @ 2:15 pm
The Constitution’s fifth article provides the process to amend the Constitution. If the Second Amendment is truly a relic of another time and place, perhaps Mr. Schledlup should lead the charge in having it repealed or modified to fit the definition he thinks best articulates the combined vision of the Framers and the evolved landscape of our country’s military and weapons technology. The First Amendment grants him, like all citizens, the right to free speech and the right to peaceably assemble. If he can convince enough of the right people, the perhaps Mr. Shledlup can achieve his goal.
The DC vs. Heller case is a particularly refreshing case because it addresses one of a very limited number of topics that I’m aware of where a significant portion of the People feels that a fundamental right is being steadily marginalized and infringed upon through creative legislation rather than through the proscribed channel, the Fifth Article of the Constitution. Does anyone remember the Fabians? The right to keep and bear arms is not a relic - it is a cornerstone of the ideals our nation was founded on.
The first true machine gun was invented by Hiram Maxim in 1881. It’s amazing to me that it took the federal government 105 years to realize that such a tool was too great a responsibility for law-abiding Americans to bear. If Heller prevails and the Miller test is upheld, then we may see machine guns legally available to law-abiding citizens once again and will have to suffer the same fate as before - no change at all.
People, individuals, have the right to protect themselves in their homes with a handgun. As history indicates, this was not a right bestowed on us by the Second Amendment, but rather, preserved by it in the “Great Contract” of the People of the United States - the agreement by which the People agreed to be governed.
Comment by Bryan Manka — February 12, 2008 @ 11:01 pm
Mr. Canales,
I can only assume you are confused. The people do have rights under the 1st and 4th. Says nothing about an individual. Just because individuals gain rights from being part of “the people” does not make it an individual right.
Mr. Manka, you imply I have an anti gun agenda and want the amendment repealed. I think it is already moot whether the 2nd is repealed.
I’m a gun owner, and resent any form of registration of long guns legally owned as a liberal boondoggle. That doesn’t mean I won’t support the common sense, legal, and constitutional conclusion that weapons designed solely for the purpose of ending a human life can and should be severely restricted in ownership.
The home defense argument is laughable. This experiment has been done on a scale that would be impossible to design purposefully. Every other civilized nation severely restricts handgun ownership, and as a result have spectacularly lower death rates from both gun violence and gun accidents. Additionally, the level of gun accident deaths per weapon owned is something like three times higher in the U.S. than in the nearest comparable country, Canada. Translation, every gun owned in the U.S. is three times more likely to kill someone by accident than any gun in Canada. In a country where a high percentage of people own guns, you would expect a lower accident rate per gun (such as in well armed Switzerland). If everyone at Virginia Tech and NIU were armed, it is quite possible the shooting rampages wouldn’t have happened. Of course, many more people would die from gun accidents with those weapons than died in the homicidal violence of those criminal acts. These arguments about defense simply do not hold water. Nothing in the 2nd amendment prevents the government from regulating type, number, or proscribed use of individual owned weapons.
Mr. Bennet: I argue that the right to bear arms exists. I’ve seen no argument that shows the government can’t control what arms a non-militia individual can own. I would expect as well that they did not write the 2nd amendment to refer only and specifically to personal weapons. It seems perfectly reasonable to me, to conclude that militia in post-Revolutionary America might choose to possess and train with artillery and any other weapon that might be developed. A militia with only hand guns wouldn’t be very good at securing a free state.
I argue that the Federal Goverment would not be able to limit the arms possessed by that militia. Clearly the Federal government would not allow this to occur. If this ruling was made, there would be a move to amend the constitution, but not by me. The most conservative of conservative politician would undoubtedly be in favour of preventing some new form of state militia being able to arm with the latest weapons completely out of Federal government control. Indeed, there would seem to be no requirement that “the people” even be interpreted as a State Goverment. Any group of “the people” could decide to constitute a well regulated militia. Thus the 2nd becomes archaic. Militias then were purposeful and fit with society. Militias as they existed then are absolutely inconceivable now. The 2nd doesn’t have to be repealed, although that would be the appropriate solution. The weight of all laws regulating the possession of military weapons probably is enough to render the 2nd amendment toothless, unless the Supreme Court finds all of those laws unconstitutional. If they find for an individual gun ownership right, then there is an individual tank ownership right that has already been infringed upon. A ridiculous situation legally. The only way the Supreme Court finds an individual gun ownership right in the 2nd amendment is to produce a hybrid ruling where individuals retain their firearms rights free of being well regulated militia, but have no constitutional right to any other arms. How anyone can read the 2nd in that fashion boggles my mind. The language of the amendment is very clear and purposeful for it’s time. The problem arises when people with agendas try and mold it to our time.
Comment by William Schledlup — February 19, 2008 @ 11:26 pm
So now we are back to the tired old argument that since we don’t allow people to own nukes we shouldn’t allow them to own guns certain people find objectionable. Thus we get Assault Weapon bans, High Capacity Firearm bans, unsafe firearm bans, all acceptable as long as they affect other people. But what happens when the other people become you.
I doubt you would be so supportive of a ban on military style weapons if you had to register your hunting rifle like I had to register my Henry under California’s high capacity firearm law. A little over a year ago the gun control movement tried to get all fixed magazine bolt action rifles declared HC as long as there was even a chance it could be modified to hold more then 10 rounds of ammunition. My Civil War Henry can hold 12 so it was banned for two years until the legislature amended the law, and even then they only left the door open for this recent attempt. My old Springfield bolt action is still in the sights regardless of its 5 round capacity.
I know this tale all too well. A National Guardsmen I knew was supportive of the Assault Weapon ban here in California. He had all the buzz words over how people like him should be the only ones to have such arms given his service in the Guard. Even the State Defense force was to be restricted on the grounds it was just old men and boys playing soldier. The reality was he didn’t want the alternative, a 14 day waiting period on his precious Manlicher bolt actions. Well he got what he wanted, and then some. A year after the assault weapon ban was passed, the 14 day wait was extended to all long guns. And his old arguments ended when he realized he would never get back what he felt was his right until he agreed to give back what others felt were theirs.
How Franklin got it right “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”.
Today in California our State Defense force is actively guarding the National Guard armories (per Federal Law) while the National Guard is away in Iraq. Yet, per the State law, they do it unarmed since the State law requires Congress to declare war before the SDF can bear arms. Of course if such a thing happened the State would have to arm them, since for the SDF to arm themselves, as they did during the Korea War, would violate the Assault Weapon law. Even though the Assault weapon law allows State and Federal troops to acquire the banned weapons it makes no provision for what happens when the Guard returns and the SDF is relieved of its duty and no longer requires the weapons.
The same goes for citizens called out under the State militia code. Officially, the Assault Weapon act stated that the listed arms were being banned from the militia. And since the Federal machine-gun act prohibits even militia called out under Article One Section 8 Clause 15 we can legally be ordered to fight against AK-47 armed mexican bandits with whatever weapons are not banned under both Federal and State gun laws. All the Solicitor General has to do is show that an acceptable equivalent is available and the Federal government is legally safe. God help the state however that has banned the designated equivalent since they can be charged with a Federal crime. I guess that is why when the CMP designated the AR-15 as the approved rifle for upper level competition shoots New Jersey removed it from its Assault Weapon ban.
Comment by James N. Gibson — February 20, 2008 @ 1