Supreme Court to Hear D.C. Gun Ban Case

[CamEdwards]

Big news today. hxxp://www.scotusblog.com/wp/uncategorized/court-agrees-to-rule-on-gun-case/

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.

I'm curious as to what the collective wisdom of FOFC is: are the District of Columbia's ban on handgun ownership and the laws that prohibit a functional firearm within the home a violation of the individual rights of District residents?

[miked]

It's interesting. I always thought growing up that the word "people" in the amendment meant a collective, not a person. I have no idea what their intentions were in writing it, but one could make a case that it was created to allow people to band together and fight any oppressive power.

Personally, I don't think there's any good use that can come out of a gun. I know people like to say that stupid or bad people are responsible for gun deaths, not guns themselves. But given that probably 75% of the general population falls under those categories, there you go. I've debated with my wife many times about this, as her father lives in the burbs in Atlanta and it's becoming increasingly shady out there. He fought in Vietnam, grew up in rural Penn, so he's used to hunting and such, but even he really finds no positives in keeping guns in the house. Even if you keep them under lock and key, separate the ammo, etc, bad shit can still happen.

I don't know why everyone thinks it's a given "right" to own a gun, they didn't even exist a few centuries ago. If you can't enforce the plethora of gun laws out there, why keep letting people get them at will? Convince me, Cam

[Jas_lov]

The ban is a violation of individual right and the Supreme Court should not overturn the DC Court's ruling. The 2nd amendment says the right to keep and bear arms shall NOT be infringed, so it shall not be infringed. The conservative leaning Supreme Court should uphold the lower court's ruling and the right of the individual.

[Honolulu_Blue]

Originally Posted by Jas_lov

The ban is a violation of individual right and the Supreme Court should not overturn the DC Court's ruling. The 2nd 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 conservative leaning Supreme Court should uphold the lower court's ruling and the right of the individual.

Fixed.

And, I agree with the last part, this Court will likely uphold the lower court's ruling. I am not convinced that's right, given the fact that the individual rights interpretation pretty much ignores the entire first part of the amendment, which, like Jas_lov, pretty much everyone does.

If I had to choose, based on the wording, I would look at it as a collective right rather than an individual right. That said, I have never really put much thought or energy in second amendment rights. I certainly believe in gun control and would likely support reasonable legislation supporting various types of gun control (e.g., no automatic weapons, restrictions on types of ammunition, stricter laws regarding background checks, etc.), but I don't get too worked up about it.

[Jas_lov]

Originally Posted by Jas_lov

The ban is a violation of individual right and the Supreme Court should not overturn the DC Court's ruling. The 2nd 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 conservative leaning Supreme Court should uphold the lower court's ruling and the right of the individual.

Fixed to clarify!

[JPhillips]

But how do you deal with "well-regulated militia"? Is it possible that the right to keep and bear arms can be upheld while the right to keep and bear certain types of arms can be restricted?

My guess is that the court will go in a way I disagree with, but it really is about time that we get a ruling on what the second amendment means.

[CamEdwards]

Originally Posted by miked

It's interesting. I always thought growing up that the word "people" in the amendment meant a collective, not a person. I have no idea what their intentions were in writing it, but one could make a case that it was created to allow people to band together and fight any oppressive power.

Personally, I don't think there's any good use that can come out of a gun. I know people like to say that stupid or bad people are responsible for gun deaths, not guns themselves. But given that probably 75% of the general population falls under those categories, there you go. I've debated with my wife many times about this, as her father lives in the burbs in Atlanta and it's becoming increasingly shady out there. He fought in Vietnam, grew up in rural Penn, so he's used to hunting and such, but even he really finds no positives in keeping guns in the house. Even if you keep them under lock and key, separate the ammo, etc, bad shit can still happen.

I don't know why everyone thinks it's a given "right" to own a gun, they didn't even exist a few centuries ago. If you can't enforce the plethora of gun laws out there, why keep letting people get them at will? Convince me, Cam

Heh, I'm used to having three hours a day, five days a week to convince folks, so I'm a little hesitant to take on the job in an internet forum.

But without even delving into the 2nd Amendment, I could point out the studies done by the Department of Justice under President Clinton which showed an estimated 1.5 million defensive gun uses each year. Considering the number of states that have adopted shall issue concealed carry laws since, that number's sure to have risen since the mid 1990's. Keep in mind though, that the vast majority of defensive gun uses do not result in the death of a criminal.

As for the safety issue, accidental firearms fatalities have declined dramatically since the late 1970's, even while firearms ownership has increased. In 2004, there were 649 accidental firearms fatalities in the United States. There were 4,018 motorcycle fatalities, 1,638 fatalities from falling down stairs, and 1,027 accidental drownings in swimming pools and bathtubs. Given that the low end of the estimated number of gun owners in this country is over 50,000,000 firearms ownership is very safe. Another example of this is the injury and fatality rate for hunters as opposed to other sports. In 2004, the L.A. Times reported "the National Safety Council shows out of every 100,000 football players, 2,369 were injured or killed in 2001 compared to only six out of 100,000 hunters in all of North America".

So that takes care of the safety issue and the reason why you'd want to have a firearm (honestly the reasons vary from gun owner to gun owner, but for me it's primarily for personal/home defense and not for hunting). Now we have to talk about the "bad people" as you put it.

Honestly, the D.C. gun ban has been around for 30 years. The homicide rate in D.C. was 27.8 per 100,000 in 1977 (the first full year the ban was in effect). By 1991, at the height of the drug wars, the homicide rate had climbed to 80.6 per 100,000. The national average at the time was 9.8. By 2005, D.C.'s homicide rate had fallen to 33.5. But the national average had also declined to 5.6. Clearly, the prohibition on firearms in the District hasn't kept the bad people from getting and using guns. In fact, in the ten years since England banned handguns, the number of gun-related crime has climbed as well. In fact, by 2003 handgun-related crime (which has always been lower in England than in the U.S.) had doubled from the year the ban took effect ( hxxp://news.independent.co.uk/uk/crime/article123495.ece).

Your argument that "If you can't enforce the plethora of gun laws out there, why keep letting people get them at will?" is sort of the bizarro-version stance that many libertarians take when they compare gun control legislation to the War on Drugs. Namely, prohibition doesn't work, but just creates an unregulated black market that does nothing to stop criminals from gaining access to firearms. This argument is backed up somewhat by a study from the FBI earlier this year that looked at armed assaults on officers. Of the 33 firearms used, 32 were aquired illegally.

Actually, this is a fascinating study if you're interested in this type of thing. Here's a pretty good summary: hxxp://www.forcesciencenews.com/home/detail.html?serial=62

[miked]

Interesting from that article.

"Nearly 40% of the offenders had some type of formal firearms training, primarily from the military."

[CamEdwards]

Originally Posted by JPhillips

But how do you deal with "well-regulated militia"? Is it possible that the right to keep and bear arms can be upheld while the right to keep and bear certain types of arms can be restricted?

My guess is that the court will go in a way I disagree with, but it really is about time that we get a ruling on what the second amendment means.

The overwhelming amount of legal scholarship over the past two decades has supported an individual rights interpretation of the 2nd Amendment. Don Kates was the guy who really got the ball rolling, but Sanford Levinson's "The Embarrassing Second Amendment" was a huge step forward in the individual rights model.

Here's a link to his article: hxxp://www.firearmsandliberty.com/embar.html

And here's a brief portion of what Levinson has to say about the "well regulated militia":

I, for one, have been persuaded that the term "militia" did not have the limited reference that Professor Cress and many modern legal analysts assign to it. There is strong evidence that "militia" refers to all of the people, or least all of those treated as full citizens of the community. Consider, for example, the question asked by George Mason, one of the Virginians who refused to sign the Constitution because of its lack of a Bill of Rights: "Who are the militia? They consist now of the whole people." [48] Similarly, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a "militia, when properly formed, [as] in fact the people themselves." [49]

When Levinson wrote his piece (I think it was in 1989), he mentioned the fact that Laurence Tribe viewed the 2nd Amendment as a collective right. That's now changed as well, and while Tribe believes many gun control laws would still pass constitutional muster, he also said the amendment protects the right of individuals to "possess and use firearms in the defense of themselves and their homes." Unfortunately, I don't own "American Constitutional Law", so I can't give you any extensive quotes from Tribe on why he changed his mind.

[RedKingGold]

[Groundhog]

[obligatory comment poking fun at America's gun laws in comparison to the rest of the civilized world]

[st.cronin]

I don't have any strong feelings on gun control either way, but it always strikes me as incredibly futile whenever people, in making an argument, reference the founding fathers "intent." Really, who cares what their intent was? If you want to look at their underlying philosophy, by which I mean a sort of political metaphysics, fine, but their "intent" regarding specifics like gun ownership can't possibly mean anything to anybody today.

[flere-imsaho]

Originally Posted by CamEdwards

I'm curious as to what the collective wisdom of FOFC is: are the District of Columbia's ban on handgun ownership and the laws that prohibit a functional firearm within the home a violation of the individual rights of District residents?

This will be a fascinating case.

Quick thoughts:

1. The issue will be complicated due to D.C.'s somewhat weird status as "not-a-state". Especially since I expect arguments to be very much couched in states rights rhetoric.

2. My early prediction is a clear win for neither side, with the Court nodding both ways in an opinion that leaves a lot open for interpretation.

Should be exciting, though.

[cartman]

I think D.C.'s status as a federal district would have different constitutional rights than those granted to a state. So whatever the ruling ends up being, it might not necessarily be applicable to gun laws in the various states.

[cartman]

flere beat me to the punch.

[Toddzilla]

Originally Posted by CamEdwards

As for the safety issue, accidental firearms fatalities have declined dramatically since the late 1970's, even while firearms ownership has increased. In 2004, there were 649 accidental firearms fatalities in the United States. There were 4,018 motorcycle fatalities, 1,638 fatalities from falling down stairs, and 1,027 accidental drownings in swimming pools and bathtubs. Given that the low end of the estimated number of gun owners in this country is over 50,000,000 firearms ownership is very safe. Another example of this is the injury and fatality rate for hunters as opposed to other sports. In 2004, the L.A. Times reported "the National Safety Council shows out of every 100,000 football players, 2,369 were injured or killed in 2001 compared to only six out of 100,000 hunters in all of North America".

So that takes care of the safety issue and the reason why you'd want to have a firearm (honestly the reasons vary from gun owner to gun owner, but for me it's primarily for personal/home defense and not for hunting).

Actually Cam, that doesn't take care of the safety issue. It's a silly and misleading way to try and focus the attention on something other than guns. If you want to ban football or stairs for being dangerous, be my guest. The topic at hand is gun control, so don't obfuscate the issue.

I could cherry pick some statistics too, but to make the issue sound much worse that it really is:

* A gun kept in the home is 22 times more likely to be used in an unintentional shooting (4 times), a criminal assault or homicide (7 times), or an attempted or completed suicide (11 times) than to be used to injure or kill in self-defense.
* In 2005, there were only 143 justifiable homicides using guns in the US, compared to more than 11,000 murders (in 2004).

I don't want to start a full-fledged debate on this; suffice it to say that I understand why people want to own guns but I disagree and would prefer our gun laws (and gun deaths) resemble the rest of civilization.

[CamEdwards]

Originally Posted by st.cronin

I don't have any strong feelings on gun control either way, but it always strikes me as incredibly futile whenever people, in making an argument, reference the founding fathers "intent." Really, who cares what their intent was? If you want to look at their underlying philosophy, by which I mean a sort of political metaphysics, fine, but their "intent" regarding specifics like gun ownership can't possibly mean anything to anybody today.

Not to get sidetracked, but this is fascinating to me. I would think that the founding fathers intent does matter, not just when it comes to the 2nd Amendment but to things like freedom of speech, freedom of religion, etc. Can you explain why you think it doesn't matter today?

Do you think this holds true for non-political writings as well? For instance, does it really matter what Jesus's original intent was, or Muhammed, or St. Augustine? Just curious.

[Groundhog]

Originally Posted by CamEdwards

Do you think this holds true for non-political writings as well? For instance, does it really matter what Jesus's original intent was, or Muhammed, or St. Augustine? Just curious.

Religion is a great example of changes and concessions being made in interpretation in order to allow it to fit in with today.

Like the original constitution and founding father's own words in print, it's a historical text that can't be changed, so if parts of it don't literally apply today, it has to be reinterpreted.

It's the same with the 2nd ammendment. Jas_lov provided a great case in point when he, like 99% of others, overlooked the original meaning and said that it was just about the right to bear arms. It wasn't solely, but because the rest of it doesn't apply anymore, that's how it's understood by most.

[JPhillips]

Cam: The problem is that there is no "Founder's intent". The founders were a relatively diverse group of people that agreed about very little. To try to say they intended this or that is to try and put a collective blanket on very diverse individuals.

I don't think there is a clear interpretation one way or the other. We're left trying to figure out what works best for us today. I can favor states/cities that wouldn't want any restrictions on gun rights, but I can also favor states/cities that want to restrict certain kinds of firearms while still allowing adults to keep and bear arms.

The problem with an absolutist stance on an individual right is that it would seemingly open the door to people owning any type of armament. Why ban grenade launchers or tanks? As a practical matter I think the court will be very hesitant to open the door to an abolishment of all arms regulations.

[Tigercat]

Originally Posted by st.cronin

I don't have any strong feelings on gun control either way, but it always strikes me as incredibly futile whenever people, in making an argument, reference the founding fathers "intent." Really, who cares what their intent was? If you want to look at their underlying philosophy, by which I mean a sort of political metaphysics, fine, but their "intent" regarding specifics like gun ownership can't possibly mean anything to anybody today.

You know, I find myself agreeing with St. Cronin here.

Personally I would be happy with any kind of gun ban. Furthermore, I believe that the 2nd amendment allows such a ban, because I also believe as part of a militia is the key component to it.

That being said, the world has changed in 220 years. And the belief in what freedoms that should be allowed have changed. Most Americans believe in the right to carry/own arms as a fairly open principal. What should probably happen is a new amendment with a more open statement on the right of gun ownership. A new amendment would never make it through all those hoops, which is a shame, its probably what should be done.

[CamEdwards]

Originally Posted by Toddzilla

Actually Cam, that doesn't take care of the safety issue. It's a silly and misleading way to try and focus the attention on something other than guns. If you want to ban football or stairs for being dangerous, be my guest. The topic at hand is gun control, so don't obfuscate the issue.

I could cherry pick some statistics too, but to make the issue sound much worse that it really is:

* A gun kept in the home is 22 times more likely to be used in an unintentional shooting (4 times), a criminal assault or homicide (7 times), or an attempted or completed suicide (11 times) than to be used to injure or kill in self-defense.
* In 2005, there were only 143 justifiable homicides using guns in the US, compared to more than 11,000 murders (in 2004).

I don't want to start a full-fledged debate on this; suffice it to say that I understand why people want to own guns but I disagree and would prefer our gun laws (and gun deaths) resemble the rest of civilization.

Actually Todd, I wasn't cherry picking statistics, but trying to point out that accidental firearms fatalities are NOT that common in this country. Regardless, I can deal with the ones you've thrown out.

The first set of statistics you mention come from a guy named Arthur Kellerman. This is actually a followup to a study he did back in the 1980's that purported to show a gun in the house is 43 times more likely to shoot someone in the family than a criminal.

Back in 2001, Miguel A. Faria Jr., M.D., editor of the Medical Sentinel, the journal of the Association of American Physicians and Surgeons, pointed out some of the problems with Kellerman's methodology. Among them:

- Kellerman's analysis ignored the vast majority of benefits from defensive uses of guns. Since only 0.1 percent to 0.2 percent of defensive uses of guns involve the death of the criminal, Dr. Kellerman's study underestimated the protective benefits of firearms -- in terms of lives saved, injuries prevented and related medical costs -- by a factor of as much as 1,000.

- In a 1993 New England Journal of Medicine study, Dr. Kellerman again reported guns in the home are a greater risk to the victims than the assailants. In addition to repeating the errors of his prior research, Dr. Kellerman used studies of populations with disproportionately high rates of serious psychosocial dysfunction such as a history of arrest, drug abuse and domestic violence. Moreover, 71 percent of the victims were killed by assailants who didn't live in the victims' household, using guns presumably not kept in the home.

(from hxxp://www.foxnews.com/story/0,2933,7217,00.html)

The fact is that Kellerman says a home with a gun in it is more dangerous than one without, but he neglects to tell you that in nearly 3/4 of the cases he's looked at, the gun was brought in by the bad guy!

As for your second point, I referenced the defensive gun uses per year as calculated by the Clinton administration. 1.5 million per year. There are other studies out there that show the figure as high as 2.5 million, but I prefer to use the Clinton administration's numbers because they certainly can't be accused of having a pro-gun bias. Still, 1.5 million defensive gun uses each year is much higher than the total number of homicides, armed robberies, and assaults committed with firearms. Armed citizens don't always have to pull the trigger to defend themselves. In fact, most defensive gun uses don't involve an actual firing of the gun.

If, in fact, homes with firearms were more dangerous than homes without, we could compare the homicide rate in D.C. to Fairfax County, VA. In 2005, the homicide rate in gun-free D.C. was 33.5. In Fairfax County it was 2.2. If gun control laws actually work, I'd expect those numbers to be reversed, wouldn't you?

[CamEdwards]

Originally Posted by JPhillips

As a practical matter I think the court will be very hesitant to open the door to an abolishment of all arms regulations.

Dola: On this I think you're correct. In fact, the way the court has crafted the issue, I'd say they will rule very narrowly on whether or not a complete prohibition on functional firearms in the home is constitutionally protected.

[Jas_lov]

Originally Posted by Groundhog

Religion is a great example of changes and concessions being made in interpretation in order to allow it to fit in with today.

Like the original constitution and founding father's own words in print, it's a historical text that can't be changed, so if parts of it don't literally apply today, it has to be reinterpreted.

It's the same with the 2nd ammendment. Jas_lov provided a great case in point when he, like 99% of others, overlooked the original meaning and said that it was just about the right to bear arms. It wasn't solely, but because the rest of it doesn't apply anymore, that's how it's understood by most.

You're putting words into my mouth! I never said it was just about the right to bear arms. It's certainly a tricky issue and I understand the other side of the argument. The Supreme Court will probably uphold this, but I'm not sure why they even agreed to hear it.

So if we do an amendment to repeal the 2nd amendment and put another one in its place, what should it be? Take out the militia part since it apparently doesn't apply today. Should it specify what you can have guns for like hunting and personal defense? Should it allow states to ban guns if they want? How do you word it to apply better to today?

[Groundhog]

Originally Posted by Jas_lov

You're putting words into my mouth! I never said it was just about the right to bear arms. It's certainly a tricky issue and I understand the other side of the argument. The Supreme Court will probably uphold this, but I'm not sure why they even agreed to hear it.

So if we do an amendment to repeal the 2nd amendment and put another one in its place, what should it be? Take out the militia part since it apparently doesn't apply today. Should it specify what you can have guns for like hunting and personal defense? Should it allow states to ban guns if they want? How do you word it to apply better to today?

I didn't mean to put words in your mouth, I was just simply talking about when you said "The 2nd amendment says the right to keep and bear arms shall NOT be infringed, so it shall not be infringed.". I know you know the full version of it, but you left off the beginning part, which considerably changes the meaning of the amendment when included.

It's like entering a door claiming the sign next to the door read "Enter", neglecting to mention that it said "Enter if your name is Fred".

[Groundhog]

dola

And some people wouuld suggest the best amendment to the 2nd amendment would be to take the whole thing out.

Guns appear to be far too deeply rooted in American culture to get rid of altogether for civillians (outside of people with a practical use for them, like farmers) like most other developed countries, but in a perfect world that'd be the best solution.

[larrymcg421]

Actually, I don't think this is a states rights issue at all. If the court finds that there is an individual right to gun use, then states won't be able to ban such use either, much like states can't infringe against 1st, 3rd, 4th, 5th, 6th Amendment rights.

[cartman]

If the 2nd amendment means I can have one of these, I'm all for it.

[Surtt]

The whole "militia" argument does not make sense to me.
Why would they guarantee the army the right to have guns in a statement about individual rights.

[CamEdwards]

Originally Posted by Surtt

The whole "militia" argument does not make sense to me.
Why would they guarantee the army the right to have guns in a statement about individual rights.

Basically, those that argue for a collective rights interpretation say the militia clause negates the possibility that the 2nd Amendment protects an individual right.

One of the biggest arguments against that interpretation, frankly, are the right to keep and bear arms provisions in contemporaneous state consititutions. For example:

- Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790).

- Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792).

- Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796).

- Vermont: [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).

[clintl]

It's too bad that someone didn't tell the idiot who wrote the 2nd Amendment that it needed a rewrite so that others would know what the hell it meant.

[ISiddiqui]

Originally Posted by CamEdwards

Basically, those that argue for a collective rights interpretation say the militia clause negates the possibility that the 2nd Amendment protects an individual right.

One of the biggest arguments against that interpretation, frankly, are the right to keep and bear arms provisions in contemporaneous state consititutions. For example:

- Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790).

- Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792).

- Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796).

- Vermont: [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).

Isn't that a big argument FOR that interpretation? After all, the various states' you have referenced had no mention of militias, but the federal 2nd Amendment did. Obviously they meant to add or change something to these various states' rights given to bear arms.

Oh, and I also agree that "founders' intent" is silly, especially because you had a number of founders who didn't agree with each other (why don't you ask what John Adams and Thomas Jefferson thought of the 1st Amendment, especially acts against sedition), and secondly, for many of those amendments the world has changed so much that their intent is fairly meaningless. On the issue of bearing arms, I don't think any of the founders could have contemplated nuclear weaponry (if it is an individual right, I don't see why people can't have nukes).

[cartman]

Cam,

To me, those passages from the state constitutions could be interpreted as the right for citizens to bear arms in defense of the state, since the use the term "in defense of themselves and the State" (my emphasis) is used in most of them. It tends to not address regulations of arms for other purposes or reasons.

[Groundhog]

I also don't think the founding fathers could have contemplated all the kind of technology and other advancements (communication, policing powers in particular) that made it no longer neccessary for ordinairy folks to have access to firearms for defense of themselves or their state.

[albionmoonlight]

In large part because we went almost seven decades without a 2nd Amendment case in the Supreme Court, it is not taught in law school (at least not mine). So, I know very little about it, and am not qualified to say which way the Court will or should come out.

Personally, I believe that the primary role of the Judiciary is to protect individual rights at almost any expense, and that all matters of interpretation (especially interpretation of the Bill of Rights) should be viewed with that primary role in mind. We have two other branches of government working to take rights away from the individual and either eliminate them or give them to the collective.

In addition, even though this case screams for an "original intent" reading, I don't beleive in that either. Each new generation is born and implicitly ratifies the Constitution by choosing to live here. In addition to a lot of the flaws of "originalism" which make it unwieldy and unworkable, I just don't think that it holds up as an intellectual theory. The Constitution binds us as individuals because WE have accepted it--not because a bunch of people ratified it 200 years ago. So, in that sense, I don't really care what they thought at the time.

Finally, as an attorney working for the Federal Public Defender's office, this issue really interests me in a very direct way, and I thank Cam for bringing it to my attention.

Specifically, according to Scotus Blog, there is a "sense" that the Court might decide "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?"

Doing a little research, I found that the Fourth Circuit precedent upholding the Constitutionality of 922(g) (and I assume most other federal firearm possession statutes) relied entirely on the idea that the Second Amendment does not confer an individual right to bear arms, but only a collective right to form a militia. United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).

So, though it is unlikely, a LOT of federal firearms prosecutions might end up being affected by this. Certainly something on which I will keep an eye.

[lordscarlet]

I stopped reading after someone beat me to the states rights issue. I was going to use this as an opportunity to complain.

[RedKingGold]

Originally Posted by albionmoonlight

In large part because we went almost seven decades without a 2nd Amendment case in the Supreme Court, it is not taught in law school (at least not mine). So, I know very little about it, and am not qualified to say which way the Court will or should come out.

Halfway through a year of Constitutional Law; we haven't talked about the 2nd amendment yet, and doubt we really will. We actually talked more about the 3rd amendment (quartering of soldiers) in Griswold, which is as close to a dead amendment as you can get.

Personally, I believe that the primary role of the Judiciary is to protect individual rights at almost any expense, and that all matters of interpretation (especially interpretation of the Bill of Rights) should be viewed with that primary role in mind. We have two other branches of government working to take rights away from the individual and either eliminate them or give them to the collective.

In addition, even though this case screams for an "original intent" reading, I don't beleive in that either. Each new generation is born and implicitly ratifies the Constitution by choosing to live here. In addition to a lot of the flaws of "originalism" which make it unwieldy and unworkable, I just don't think that it holds up as an intellectual theory. The Constitution binds us as individuals because WE have accepted it--not because a bunch of people ratified it 200 years ago. So, in that sense, I don't really care what they thought at the time.

Scalia recently spoke at a conference at Nova that I was fortunate to go to. Now, I'm no legal scholar, but it really did seem that a lot of his arguments supporting the strict originalist view are very circular.

Finally, as an attorney working for the Federal Public Defender's office, this issue really interests me in a very direct way, and I thank Cam for bringing it to my attention.

Specifically, according to Scotus Blog, there is a "sense" that the Court might decide "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?"

Doing a little research, I found that the Fourth Circuit precedent upholding the Constitutionality of 922(g) (and I assume most other federal firearm possession statutes) relied entirely on the idea that the Second Amendment does not confer an individual right to bear arms, but only a collective right to form a militia. United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).

So, though it is unlikely, a LOT of federal firearms prosecutions might end up being affected by this. Certainly something on which I will keep an eye.

Yeah, I sincerely doubt that a conservative Court would significantly alter 2nd amendment rights. However, it is pretty significant that the Court decided to hear the case at all.

To me, I'm kinda interested to see what new restrictions will be placed on abortion law when that comes up in the docket this term.

[Toddzilla]

Oops - I knew drawing Cam into a debate was a lousy idea

You say your facts are right and mine are misleading.
I say your facts are misleading and mine are right.

Lose your best friend at the age of 7 when he gets shot by his older brother by their father's gun, and suddenly handguns don't seem like such a good idea.

[Surtt]

Originally Posted by RedKingGold

Yeah, I sincerely doubt that a conservative Court would significantly alter 2nd amendment rights. However, it is pretty significant that the Court decided to hear the case at all.

Yeah, the timing is strange.
I can not see them bringing up this case just to reassert the right to bear arms.

[CamEdwards]

Originally Posted by Toddzilla

Oops - I knew drawing Cam into a debate was a lousy idea

You say your facts are right and mine are misleading.
I say your facts are misleading and mine are right.

Lose your best friend at the age of 7 when he gets shot by his older brother by their father's gun, and suddenly handguns don't seem like such a good idea.

Well, they weren't really "your" facts. I was just pointing out the problems with Kellerman's study. And you weren't really saying "my" facts were wrong, you were just saying I was trying to obfuscate the issue. I don't take any of it personally.

And now knowing your personal history, I can certainly understand your feelings on the issue, even if I continue to disagree with you.

[CamEdwards]

Originally Posted by Surtt

Yeah, the timing is strange.
I can not see them bringing up this case just to reassert the right to bear arms.

I'm guessing the Court took the case because of the split that now exists in the circuit courts. Someone mentioned the 4th Circuit, but also the 9th have explicitly stated the 2nd Amendment is not an individual right. The 5th and the D.C. Circuit have explicitly stated it IS an individual right. And considering the D.C. Circuit is where folks can challenge federal statutes, it makes some sense for the Court to want to deal with the issue.

The way they've crafted the question though indicates that this is going to be a very narrow ruling. In essence the court will address whether the prohibition on using a firearm in your own home for self defense is constitutional. There aren't going to be any side issues about concealed carry, or how many guns can someone own, or what kind of gun someone can own.

[CamEdwards]

[quote=ISiddiqui;1597607]Isn't that a big argument FOR that interpretation? After all, the various states' you have referenced had no mention of militias, but the federal 2nd Amendment did. Obviously they meant to add or change something to these various states' rights given to bear arms.
[quote]
I'm going to rely on the words of someone much smarter than I am for this. From Sanford Levinson's "The Embarrassing Second Amendment":

, for one, have been persuaded that the term "militia" did not have the limited reference that Professor Cress and many modern legal analysts assign to it. There is strong evidence that "militia" refers to all of the people, or least all of those treated as full citizens of the community. Consider, for example, the question asked by George Mason, one of the Virginians who refused to sign the Constitution because of its lack of a Bill of Rights: "Who are the militia? They consist now of the whole people." [48] Similarly, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a "militia, when properly formed, [as] in fact the people themselves."
...
In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the "importance" of the Second Amendment. [61] He went on to describe the militia as the "natural defence of a free country" not only "against sudden foreign invasions" and "domestic insurrections," with which one might well expect a Federalist to be concerned, but also against "domestic usurpations of power by rulers." [62] "The right of the citizens to keep and bear arms has justly been considered," Story wrote, "as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power by rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." [63]

We also see this blending of individualist and collective accounts of the right to bear arms in remarks by Judge Thomas Cooley, one of the most influential 19th century constitutional commentators. Noting that the state might call into its official militia only "a small number" of the eligible citizenry, Cooley wrote that "if the right [to keep and bear arms] were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check." [64] Finally, it is worth noting the remarks of Theodore Schroeder, one of the most important developers of the theory of freedom of speech early in this century. [65] "[T]he obvious import [of the constitutional guarantee to carry arms]," he argues, "is to promote a state of preparedness for self-defense even against the invasions of government, because only governments have ever disarmed any considerable class of people as a means toward their enslavement." [66]

(woo, sorry, that got a little long, even though I left out a lot of stuff)

Oh, and I also agree that "founders' intent" is silly, especially because you had a number of founders who didn't agree with each other (why don't you ask what John Adams and Thomas Jefferson thought of the 1st Amendment, especially acts against sedition), and secondly, for many of those amendments the world has changed so much that their intent is fairly meaningless. On the issue of bearing arms, I don't think any of the founders could have contemplated nuclear weaponry (if it is an individual right, I don't see why people can't have nukes).

So you think it's silly to look at the intent of the lawmakers who wrote the Constitution and the Bill of Rights. I still think THAT's silly, so we'll have to agree to disagree on that. That's a whole 'nother thread.

As for the argument about people having nukes, I could try to argue the semantics of ordinance versus arms, or the fact that the 2nd Amendment refers to both keeping and "bearing" of arms, which would limit its scope, but the fact is that even with an individual rights interpretation of the 2nd Amendment, the courts are going to allow some restrictions on arms ownership, despite the "shall not be infringed" language. Just as the 1st Amendement doesn't protect your right to shout "Fire!" in a crowded theater, or have sex with underage girls as part of your religion, the 2nd Amendment is not going to protect a right to own a nuclear weapon for personal use.

[albionmoonlight]

Originally Posted by CamEdwards

The way they've crafted the question though indicates that this is going to be a very narrow ruling. In essence the court will address whether the prohibition on using a firearm in your own home for self defense is constitutional. There aren't going to be any side issues about concealed carry, or how many guns can someone own, or what kind of gun someone can own.

I agree that they won't intend to open's Pandora's Box, but this Court also seems very content to issue rulings and let the lower courts deal with the mess.

If, for instance, the Court says that the Second Amendment right is an individual right, then the federal statute barring, say, felons from possessing a firearm (18 U.S.C. 922(g)) comes into play. I am pretty sure that, at the end of all the shouting, the statute will be upheld. But there will be a lot of shouting as the circuit courts that have based their reason for upholding the statute solely on the fact that the right is not an individual right need to find a new reason to uphold the statute.

In short, I think that the issue decided will be narrow, but that the logic used to get there might cause some bumps down the road while courts and defendants and prosecutors digest it.

[JPhillips]

A nuke is an extreme example, but why not a grenade launcher or a fully automatic M-16 or an M-50? This is really the challenge for lawmakers if it is clearly spelled out that the 2nd amendment protects an individual's right.

The question for you is, if it is acceptable to regulate some firearms, as you agree, why is the D.C. law a constitutional issue? If some regulation is acceptable, isn't the D.C. law more of a political question than a constitutional question?

I'd also argue that if the 2nd amendment is an individual right and the intent is to keep the citizens armed so as to ward off an overbearing government, wouldn't we need much more powerful weapons than handguns? Wouldn't it take personal ownership of tanks and fighter jets to have any chance of standing up to the government?

[Arles]

I find this debate very interesting. I don't own guns, but don't have a reason to be biased against individual gun ownership. The one item that I question is this idea that we can now parse the language in the second amendment to give an out for not allowing individual gun use. IMO, if an item in our bill of rights has been understood to mean "X" for 200+ years and no new amendment is made, saying now that we think it actually means "Y" is a little dubious.

That would be like someone saying "Well, the first amendment says 'Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble'. Now that I look at it, I feel threatened when people amass in a group of 200 outside of our local courthouse and I don't really view that as peaceful. So, I really don't see anything in the bill of rights that gives people the right to protest in a group over 100 people."

If a personal right has been understood to be allowed for 200 years, having someone parse the same language to remove that right is a little scary to me. I would feel better if congress passed a law or new amendment to clarify before the judicial branch removes a right by pulling a 180 on interpreting the bill of rights through parsing. So, I guess my issue is completely independent from the idea of gun use and more on the precedent here if this reason is ever used (and I don't know that it would ever be used in this matter).

[larrymcg421]

Originally Posted by Arles

I find this debate very interesting. I don't own guns, but don't have a reason to be biased against individual gun ownership. The one item that I question is this idea that we can now parse the language in the second amendment to give an out for not allowing individual gun use. IMO, if an item in our bill of rights has been understood to mean "X" for 200+ years and no new amendment is made, saying now that we think it actually means "Y" is a little dubious.

That would be like someone saying "Well, the first amendment says 'Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble'. Now that I look at it, I feel threatened when people amass in a group of 200 outside of our local courthouse and I don't really view that as peaceful. So, I really don't see anything in the bill of rights that gives people the right to protest in a group over 100 people."

If a personal right has been understood to be allowed for 200 years, having someone parse the same language to remove that right is a little scary to me. I would feel better if congress passed a law or new amendment to clarify before the judicial branch removes a right by pulling a 180 on interpreting the bill of rights through parsing. So, I guess my issue is completely independent from the idea of gun use and more on the precedent here if this reason is ever used (and I don't know that it would ever be used in this matter).

The court wouldn't be doing a 180 since they've never really ruled on this issue. The only time it came up, they didn't clarify the interpretation at all and certainly didn't come out declaring the 2nd amendment to protect individual rights.

Furthermore, they can't wait for the legislative branch because the lower courts are divided over it. In situations like this, it's important for the high court to settle the issue so there's no confusion and rights are protected equally across all circuits.

[Toddzilla]

Originally Posted by CamEdwards

If, in fact, homes with firearms were more dangerous than homes without, we could compare the homicide rate in D.C. to Fairfax County, VA. In 2005, the homicide rate in gun-free D.C. was 33.5. In Fairfax County it was 2.2. If gun control laws actually work, I'd expect those numbers to be reversed, wouldn't you?

I forgot to comment on this, since it made me laugh when I read it, because Fairfax County VA and the District are so similar Got any figures comparing Westhampton County, NY and Baghdad?

[Huckleberry]

Egads. Seems to me like most people can't decipher the amendment as a simple matter of reading comprehension.

The opening of the amendment does not place a restriction on the main clause. If the amendment were to be rewritten by a 15-year-old in 2007 it would end up:

Because a militia is necessary to make sure a free State is secure, the right of the people to have guns will not be infringed.

There is nothing in that requiring the guns be used for militia purposes only. Look at it another way. I propose a new Amendment:

Reproduction and future generations, being necessary to the maintenance and continuation of a free State, the right of the people to have sex, shall not be infringed.

That Amendment ensure that my right to have sex will not be infringed. It does not say that I have to be reproducing every time I have sex. It says that the basic reason the government can't interfere is because of reproduction, but it extends the protection to all situations so that we can ensure that the introduced purpose is also protected.

[st.cronin]

Originally Posted by CamEdwards

Not to get sidetracked, but this is fascinating to me. I would think that the founding fathers intent does matter, not just when it comes to the 2nd Amendment but to things like freedom of speech, freedom of religion, etc. Can you explain why you think it doesn't matter today?

Do you think this holds true for non-political writings as well? For instance, does it really matter what Jesus's original intent was, or Muhammed, or St. Augustine? Just curious.

Non-political writings do not have specifically political applications, so the project of interpretation is different, with a different purpose.

Also my point was not that it didn't matter - just that it is futile to reference it, because nobody, except maybe Ron Paul, really cares what the intent was.

Some other people have answered in ways that I largely agree with as well.

Lastly, I'll point out that it was the intent of the authors (although not all of them) of the Constitution to codify as law the idea of slavery.

[larrymcg421]

If we adhered to the original intent, then the 14th Amendment would no longer prohibit segregation or the prohibition on interracial marriages, among many other things that the framers of that Amendment certainly did not intend to deal with.

[CamEdwards]

Originally Posted by Toddzilla

I forgot to comment on this, since it made me laugh when I read it, because Fairfax County VA and the District are so similar Got any figures comparing Westhampton County, NY and Baghdad?

Well, you're right that Fairfax County and Washington, D.C. are different. They're seperated by what? 20 miles? And D.C.'s population is about half that of Fairfax County's.

But what differences are you suggesting are responsible for the massive amount of violent crime in D.C. as opposed to Fairfax County? Is it that poor people are more disposed towards violent crime?