Didn't know if anyone already posted this... http://www.usatoday.com/news/washington/2007-11-20-scotus-guns_N.htm?csp=34 WASHINGTON — The Supreme Court announced Tuesday that it would decide the breadth of gun rights in America, in a dispute over a restrictive Washington, D.C., handgun ban. The case, which would be heard next spring and likely be decided by the end of June, could mark the first time that the nation's high court directly interprets the Second Amendment right "to keep and bear arms." The fractious gun-rights question also could become an issue in the 2008 presidential election. For decades judges have generally ruled that the Second Amendment covers a collective right of state militias, such as National Guard units, but not the rights of individual gun owners. In the last Supreme Court case to involve the Second Amendment, in 1939, the justices highlighted the Second Amendment's protection for "a well-regulated militia" and upheld federal regulation of individuals' use of sawed-off shotguns. FIND MORE STORIES IN: Washington | Supreme Court | DC | Constitution | Circuit | Second Amendment | DC Circuit The full text of the Second Amendment says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The question the justices agreed to take up is whether the Washington, D.C., handgun ban violates "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." In recent years, most lower court judges, following the premise of the 1939 United States v. Miller case, have rejected arguments that the Second Amendment protects an individual's right to firearms. The U.S. Court of Appeals for the District of Columbia Circuit broke that pattern in a March ruling. By a 2-1 vote, a panel of the D.C. Circuit reversed a trial court decision that the Second Amendment does not protect individual gun owners. In the case now to be reviewed by the justices, the D.C. Circuit struck down the 1976 law prohibiting Washington residents from keeping handguns for private use. That March ruling interpreted the constitutional history through a different lens and said the "individual right … existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense." The decision energized both sides of the debate over a right to bear arms — which like the inflammatory topics of abortion and capital punishment ignites passions in America. In appealing that ruling, D.C. Attorney General Linda Singer told the justices that the handgun ban is saving lives. She also said the lower court wrongly interpreted the history of the Second Amendment. D.C. officials argue the Amendment was intended to preserve state militias and protect states from encroachment by the federal government. The case was begun by Dick Anthony Heller, a guard at a federal building who wanted to keep a handgun in his D.C. home for personal safety. Alan Gura, his lawyer, had urged the justices to take up the D.C. appeals. He said the case presents "a unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically … in the Constitution. 'The people' — individuals in our country — retain the right to keep and bear arms." Even if the court were to side with Heller and find an individual right to keep arms, the right would not be absolute. As the D.C. Circuit observed in its ruling, a Second Amendment individual right does not prevent government from "reasonable regulations" of firearms. The Bush administration did not weigh in on the D.C. officials appeal, but in 2002 it reversed the U.S. government's long-standing view of the Second Amendment and said it applied to individuals, not just to state militias.
I someone wants another person dead, then having a handgun illegally would mean nothing to them. Law? Pisshhh... shove it. Handguns will always be attainable. Legal or not.
It will be interesting to see what the court's supposed "strict constructionists" make of this. In right wing circles, "strict construction" purports to be a point of pride or a badge of honor. I tend to see it as something else, a code word. Anyway - in any logical sense of the word, a strict interpretation of the 2nd amendment and its jurisprudence would not create an expansive, brand new individual right to gun ownership on par with the first amendment. Time for them to put their money where their mouth is. Or else pretty much make it abundantly clear what I've suspected all along.
If someone wants more gun deaths, just put more guns into homes. Having a gun in your house generally makes you and your family less safe.
My understanding is that 'strict constitutionalists' strive to most understand what the framers of the constitution intended, as opposed to interpreting the specific language in its strictest sense. As I understand it the description doesn't mean interpreting the constitution in the most limited way possible. It is also my understanding that the argument about the 2nd amendment referring to a collective right for states militias was first voiced around the time of the Militia Act of 1903. I appreciate that it is probably inconvenient since the introduction of new types of weapons like machine guns etc., which is why the meaning was reinterpreted in the first place, but as I understand it the original meaning more closely matches the individual rights argument. As far as I can see, 'Money where there mouth is' = the position that you find offensive. I think 'what I've suspected all along' is largely a function of you seeing what you want to see. It is clear to me that if they choose the 'collective right' argument it will be practicality winning out over strict interpretation.
That's an originalist technically - anyway, strict constructionist is a code word used by right wing politicians, not unlike "judicial activist". It means what they want it to mean - i.e. these guys are our guys. My (originalist?) understanding is that it was first voiced around 1791, with the inclusion of the phrase "A well regulated Militia being necessary to the security of a free State" rather than a phrase like "Congress shall make no law abridging...." If this post is you trying to claim that the judgment of all of our revered federalists (who double as so-called strict constructionists), is 100% consistent please explain Bush v. Gore from a jurisprudential standpoint. All of our federalists suddenly forgot about states rights, and stacked the deck in favor of their boy my mis-applying the preliminary injunction standard. Thank god that court wasn't run by judicial activists! Ha. Anyway - you're a gun owner, you're seeing what you want to see. Good for you - but I've been exposed to years and years of listening to so-called federalists and strict constructionists railing against the creation of new rights and judicial activism and scream bloody murder about the right to privacy cases and Griswold v. Connecticut. Thrown in a little bit of gratuitious Federalist Society states rights talk (DC is effectively a state here) - not to mention the expansive, imperial, bill of rights, habeas corpuus hating presidency that our "strict constructionist" president has given us. Taken together that whole witches brew of intellectual discourse makes it difficult for me to swallow when those same people who have subjected me to the above like to run around creating brand new rights that have not previously existed - which, oh-so-very-coincidentally - happen to be in the interests of their political teat-fellows. If you think that's a function of me just seeing what I want to see, then you're blinded by muzzle flash. Too bad rehnquist is not around - anythign that smacked of new liberty, rights, or freedom or fun he was generally against, no matter what it was or what side wanted it. Fun guy.
Again, the idea is to figure out what they meant, not read it and interpret it as you think they meant it. Feel free to read any of the well documented discussions surrounding the drafting of the text. Read any of the discussions surrounding the second amendment up through 1903. "Who are the Militia? They consist now of the whole people." -George Mason I could go on but I'm not really trying to get into a flame war with you. But you keep characterizing this as a new right that never existed before. It makes it seem like you are the principled one and that the founders intended the imminent evolution of the current National Guard system when they drafted the Constitution. I think that that is an entirely incorrect position. As far as your general complaints against how conservatives act, I defer to you. Undoubtedly, people are often two faced, both liberal and conservative. Undoubtedly, what you speak of is often true. But the fact that conservatives abuse the term 'strict constitutionalist' doesn't mean that there isn't some version of that position that isn't a tool of partisan politics. The most strictly constitutional 'original intent' position is that people should individually own guns and there should be no standing Army. Of course the totality of this has absolutely no chance of occurring. But that is, whether it fits with how you would like it to be or not, what they were talking about when they wrote the Second Amendment.
If some criminal decides that my home would be a nice place to invade, possibly tie up my wife and daughters and do horrific things to them (which did happen recently to an unfortunate family), I'm not going to rely on a simple baseball bat (which I have). If they have a gun themselves, I've got one to keep them away. Although it's not a handgun, I'm not opposed to sensible people owning one. I am opposed to government or any individual who wants to put a blanket over society to protect them from themselves (not a stab at you). Gun safety, training, and responsible storage is vital in homes that have them, especially with children. I assume you are referring to accidents in the home when you refer to "less safe".
I agree with Sam Fisher about the misuse of the term "strict constructionist" by a those with a certain political bent but in this case I agree with Ottomaton's reading. Ammendment II 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. While Sam emphasize the first part you can't ignore the second part. That clearly is saying that private citizens are allowed to keep arms, although their use could be regulated.
I'm curious about this. I've always thought that it's much harder to obtain a gun in countries that ban it. And it makes sense from an intuitive standpoint. Are there facts to dispute this? That in fact whether or not the US ban handguns for regular citizens, its use by criminals would not decrease.
I think the term well-regulated militia is the fly in the ointment here. If you think to what the framers intended, I doubt that they intended that the only militia allowed to bear arms would be one run by the government (the National Guard). To say that the amendment only applies to the guard is intellectually dishonest. The point of the amendment was to allow the people to protect themselves against an oppressive government. Remember, they just got done with the king. They were concerned about the need for future rebellion.
Ammendment II 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. It's obvious the 2nd admendment states twofold without being exclusive: 1. The Militia is needed for security and freedom...AND...The Right of the people to keep and bear arms, shall not be infringed... There is a delicate balance between infringement and regulation...reasonable regulation is necessary due to the broad term of "arms" and everything this can include, but not infringement. IMO, there is now enough levels of regulation so that further regulation is all too often infringement. If we can agree that enough infringement on the Constitution has happened under Bush...Why add to it? ...Further infringement disguised as regulation can be allowed to affect other rights as well... If you allow it to happen, you might as well allow further regulation to be applied to all other rights.
I definitely see where you're coming from. I've read that guns in homes are much more likely to injure or kill a member of the household than a criminal, but I'd be interested to know how much of that is a result of insufficient training/respect for the dangers. Sort of like with condoms, which fail more than they ought to because people don't use them correctly. My original point, of course, was not meant as an opinion on gun regulation itself, just a precaution against the argument that often pops up that more guns = greater safety.
yes but defining the law helps the law abiding people defend the home and family. criminals will always be criminals.
And what pray tell is the difference between the two? I can see many ways of looking at that. What was the originalist intent of the first amendment - is it those of an Adams who passed the alien & sedition act or Jefferson, who opposed it? Do we go majority or not? Do we read in era-specific limitations about muskets and the lack of a standing army? And also - let's not forget that many of our originalists are also textualists. Looking at the first amendment and the second amendment in a textual fashion makes it pretty clear to me that one is a lot more qualified than the other. Are you an originalist? One of my favorite stories about original intent is in the Hare Krishna case that interprets whether or not the airport lobby is a tradiitional public forum for free speech analysis- and Rehnquist or somebody is trying to argue that the founders would not consider an airport lobby as a traditional public forum. Ha ha ha, if the framers were in an airport they would be pissing their breeches because they would be surrounded by giant flying steel dragons. Anyway the distinction between originalism as applied and something once described to me as dishonorable formalism gets increasingly blurry as times change. That's because it is - and to state otherwise is simply wrong. No case law currently in existence recognizes an individual riight to bear arms - that's what the debate is about. There are many scholars (eugene volokh comes to mind) will argue like it SHOULD - but as currently constituted, even the scholars who think that it SHOULD, would recognize that it presently does not. I'm not certain what that even means - I never claimed to be an originalist or even argued a position as to the substance. I am simply pointing out that it would be unusual and at most inconsistent for our strict constructionist friends to gleefully endorse a brand-new sphere of rights (and please, save me the quotes to george mason, etc. I can easily take those kinds of old-school quotes and apply them to the zone of privacy cases and Griswold which is public enemy No. 1 of our strict constructionist friends). Now, you will say - inconsistent - so what. Lots of people are inconsistent, including yourself. Well, again - I've been a lawyer or a law student for decades. I've read all sorts of praise for our strict constructionists- a lot of it self-applied, about how wonderful and consistent their positions are. Read any of Funnyman Nino (anybody who thinks he is actually funny, btw, needs to have their head examined. Law school funny is not funny) and his rants and raves about how O'Connor is the spawn of satan for taking the opposite side in the great rules vs. discretion debate.
no, the fly in the ointment is the phrase "the people" - note it does not say "persons" or "person". That sounds a lot more like a collective right than an individual right. (see the fifth amendment for an individual right to due process). if we're going to delve into the view of original intent, which as I said before can be abused and twisted and I qustion, but anyway if we're going to delve into that, why is the second amendment expressly qualified and limited to a collective? Why does it not say "Congress shall make no laws abridging the right of the people to keep and bear arms" or "Any person who is a citizen of the United States shall have the right to keep and bear arms" - instead there is a distinct qualification here.
Sam, You are right in a sense, but you totally missed the point. Generally, from what I've read of the Federalist papers, Madison talks about gun ownership as being necessary for participation in a militia. There is no mention of collective gun ownership, rather individual gun ownership being protected for participation in a militia. But he also talks about how the militia should be 10-times the size of the standing army, local control should supercede state or federal control, and the reason for that militia is to prevent tyranny. I'm almost positive that had Madison or Jefferson seen the National Guard in its current form, they would have called it an army. Read Federalist Paper #46. If you can get through the parts about the Federal government being dependent on State and local governments without your head exploding, the parts about the militia should be pretty enlightening. Oh yeah, and you can have my Glock when you pry it out of my cold, dead... Oh, who am I kidding? If they make guns illegal, I'll turn mine in like a sheep.
wouldn't you guys say that militia is defined as civilians trained as soldiers but not part of the regular army?
Sounds like a collective right to me. What if we actually established a well-regulated state militia in each state that was separeate from any US Army control. Anybody in this militia has the right to bear a firearm, depending on mlitia regulations. Anybody not in this militia (and let us assume membership in it requires actual membershp and participation) does not have a constitutional right ot firearms - does this agree with you? The whole notion of citizens fighting back against the government in survivalist bands is kind of ridiculous in this day and age (despite the willingnessof the current admin to tread on rights) - it's as outdated as the notion as slaves counting as 3/5 of a free man. I just can't stomach those arguments as legitimate anymore.
This is where it falls down to me. I think it's right that the Founders wanted this in as a safeguard against government. But that was at a time when the government was carrying a musket. We're just not there anymore.
