First Supreme Court case re: 2nd Amendment in 70 years

[NorthSideSox72]

So, the Supremes are looking at the case of the D.C. ban on handguns. They are addressing the right to bear arms, and the 2nd Amendment. This is something that SCOTUS has historically avoided like the plague. So, this is a very important case.

 

So far, it looks like the justices definitely agree on an individual right to bear arms, as well as the right of the government to regulate that right. The argument has now centered on whether or not the D.C. ban is a reasonable government regulation as such.

 

By the way, for discussion's sake, here is the exact text of Amendment 2:

 

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.

[southsider2k5]

I couldn't ever see myself carrying a gun, but to me that is pretty clear. "Shall not be infringed" is not very vague at all.

[knightni]

Simple solution: only allow the Arms that were available when the Second Ammendment was made.

 

Flint-lock muskets and rifles for everyone!

[StrangeSox]

I listened to the arguments live yesterday. Gura (arguing against DC) didn't have good answers for where the court should set limits for gun bans/ restrictions. Dillinger (for DC) kept answering the judges by blowing off their questions and saying "but the real issue is...." I don't think SC judges like being told their questions aren't important and that they don't know what is important about the case.

 

Listening to the hearings, I got the clear impression that the SC will interpret an individual right to firearms ownership but will allow some restrictions on "reasonable" civilian possession -- i.e. civilians shouldn't have rocket launchers and machine guns, but that things like the DC (and probably Chicago) gun bans are unconstitutional.

 

A nice wrap-up with plenty of links.

http://www.scotusblog.com/wp/uncategorized...ument-round-up/

 

My thoughts are this: Isn't every other right in the BoR* clearly an individual's right? Why would this one be any different?

 

*The 10th reserves powers not granted in the Constitution to the Federal government for the States and people and the language makes it clear that its a collective/ government right.

Edited March 19, 2008 by StrangeSox

[GoSox05]

Simple solution: only allow the Arms that were available when the Second Ammendment was made.

 

Flint-lock muskets and rifles for everyone!

 

 

and swords. We need more swords on the streets.

[lostfan]

*The 10th reserves powers not granted in the Constitution to the Federal government for the States and people and the language makes it clear that its a collective/ government right.

I don't think I understand what this means.

[NorthSideSox72]

I don't think I understand what this means.

The 10th Amendment:

 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

This is, in my opinion, the 2nd most important amendment in the Bill of Rights (after the 1st Amendment). What it does is establish affirmative control. It says that the Constitution is NOT a document that is "including but not limited to" - it is very specifically limited to giving the federal government control over ONLY the powers enumerated therein. Everything else should fall to lower level government, or to individuals. It is the key to understanding federalism.

 

As such, in a federal system, there are semi-autonomous government entities (groups, if you will) that have some authority. Those groups - state and local government - are granted rights by the 10th amendment. Its is therefore a group, or collective, right.

 

[lostfan]

Ok, I think I get what he was saying now. I get the 10th amendment I was just confused by the end of the post, he was saying everything in the BoR is an individual right except that one.

[FlaSoxxJim]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

I'm sensitive to the chicken-and-eggism inherent in this statement, but I believe the necessity of the well regulated Militia was the superceding concern of the Framers here. The right of the individual to bear arms derives from the Framers belief that the state militias were an important check on government abuse (i.e, the need for a standing army).

Edited March 20, 2008 by FlaSoxxJim

[StrangeSox]

Ok, I think I get what he was saying now. I get the 10th amendment I was just confused by the end of the post, he was saying everything in the BoR is an individual right except that one.

 

Sorry if I didn't explain myself well.

 

Amendments 1 and 3-9 are clearly individual rights. You have the individual right to free speech, individual right to trial by jury, etc. Amendment 10 is clearly speaking about limits on the Federal government's powers and does not address anything that could be considered an individual right (there was a lot of opposition to the idea of a "Bill of Rights" as they feared it would be seen as the ONLY rights granted to people by the government, so I think this is the way around that).

 

Now, that leaves us with the 2nd amendment. Given all of the speech used by the framers and the fact that every other amendment deals with the individual rather than the collective, I believe that the 2nd amendment does refer to an individual right to keep and bare arms.

 

Too bad the framers didn't just write something more precise!

 

I think this comment, from the SCOTUS blog I posted, nails the point home:

 

I think the truth has barely been touched on. The debate about an individual versus collective right wouldn’t have occurred to the framers. It’s no surprise they’d cite a right belonging to the people and militias in practically the same breath because they are both the same right.

 

The framers would have seen the question more in light of John Locke’s second treatise which would indicate that “collective” rights are merely rights belonging to individuals which individuals choose to delegate to society where society can enhance those rights as a function of it’s having greater resources than the individual. Where society cannot provide an enhanced or at least equivalent to the individual right then that right becomes “unalienable” and falls back to the individual. Same principle that says if the police, as agents of society, can’t be there to protect you then the right to self defense falls back to you as an individual.

 

In that context, the right to form militias is merely an extention of the individual right to self defense or more concisely in Locke’s view, the “natural” right of individuals to enforce natural law (self preservation being the first law of nature). In situations where individuals alone aren’t capable of meeting a threat, they have a right to band together as a militia to meet that threat, exercising the individual right as a group. Again, to the framers there would been have no division between the individual and collective right (hence the wording of the 2nd amendment created no conflict in thier minds).

 

The only question is what arms are appropriate to the task of individual defense as opposed to collective defense which , regardless of the logic involved in getting there, the court appears to be moving toward trying to define

 

- Ken Harding

 

Here's another question from Roberts during yesterday's arguments:

 

"If it is limited to state militias, why would they say 'the right of the people'?"

Edited March 19, 2008 by StrangeSox

[NorthSideSox72]

I think this comment, from the SCOTUS blog I posted, nails the point home:

That's a really great quote. That puts it quite nicely.

 

[Mplssoxfan]

I'm certainly no expert, but it seems to me that the people who wrote this amendment wouldn't seemingly deny a right in one clause that it seemingly affirms in the next.

 

I do wish the language was a little more precise, though.

[Balta1701]

I'm certainly no expert, but it seems to me that the people who wrote this amendment wouldn't seemingly deny a right in one clause that it seemingly affirms in the next.

 

I do wish the language was a little more precise, though.

One reason, perhaps the main reason, perhaps the only reason that our constitution has survived the dramatic changes that have taken place as the country moved from a small set of agrarian colonies to the foremost economic and military power on earth is that the Constitution is vague and allows for reinterpretation over time.

[Mplssoxfan]

One reason, perhaps the main reason, perhaps the only reason that our constitution has survived the dramatic changes that have taken place as the country moved from a small set of agrarian colonies to the foremost economic and military power on earth is that the Constitution is vague and allows for reinterpretation over time.

Yes and no. There isn't much ambiguity here,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

though people certainly interpret it in different ways.

 

[EvilMonkey]

People who tend to interpret this one very loosely,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

tend to interpret this one very literally.

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 opposite is also true. People who think the second is fluid want to take the first one word for word.

[Jenksismyhero]

Hence why we should all be like Scalia and read the text as it was intended, not what it "should" be. That's why they didn't say in bold print: "this document shall not be changed in any way, shape or form." Instead they created a system whereby it could be altered. It's too bad the Court sometimes believes it's a part of that process.

[FlaSoxxJim]

Back to the chicken-and-eggism, and my well supported belief that protecting the state militias, not codifying the rights of individuals to own firearms, is the crux of the second amendment biscuit (remember this is back when it was unthinkable to have a standing American army during peacetime).

 

From a December 2007 piece by P.A. Madison on federalistBlog:

 

What was the objective behind the second Amendment; was it to secure individual private ownership of firearms? No, Madison inserted the language after Jefferson objected to the absence of a security against a standing army - not the omission of an individual right to privately own firearms.

 

The author also notes:

 

The fact the Second’s early language included the wording, “but no person religiously scrupulous of bearing arms should be compelled to render military service in person” proves without a doubt the entire amendment was one devoted to the militia.

 

Here's some similar thoughts by paul Finkleman from a 200 Chicago-Kent Law Review article.

 

Madison and other Federalists who wrote the Second Amendment were fully aware of demands for an amendment to protect an individual's right to own weapons, and that the framers of the Second Amendment emphatically rejected this concept. The article concludes that the Second Amendment was not meant to protect an individual right to bear arms, but also argues that political considerations make bans on long guns and hunting rifles impossible.

 

So, no, I don't think 2A was ever strictly intended to explicitly secure the rights of individuals to own firearms. I think the framers and Federalists alike would have believed that right would rest with the states and not the Federal government.

 

That said, since 9A goes on to bar denial of unenumerated rights, and since individuals indeed needed to possess arms in order to operate within a militia, there continues to be a lot of room for interpretation. Still, it is clear that the Framers didn't include 2A in response to demands that individuals' rights to own weapons be ensured.

 

the reality is that nothing in modern America resembles the militias as Jefferson understood them. . .

 

"Every able-bodied freeman, between the ages of 16 and 50 is enrolled in the militia. .... In every county is a county lieutenant, who commands the whole militia of his county. .... The governor is the head of the military, as well as the civil power. The law requires every militia-man to provide himself with the arms usual in the regular service."

 

The only regulated entities that come close to this in concept are the units of the National Guard. And it is the National Guard – not whackjob backwoods private gunclub armise – that today can be called to service of the US in times of emergency under authority granted by the Constitution. This was clearly laid out in the 1916 National Defense Act.

 

It's a convenient but preposterous NRA myth that the hodgepodge of gun-toting individuals were the militiamen the framers had in mind when drafting the second amendment. But the right to own firearms is certainly not denied here. The right to keep and bear arms is supposed to be a state consideration not to be infringed at the federal level.

[Mplssoxfan]

People who tend to interpret this one very loosely,

 

tend to interpret this one very literally.

 

The opposite is also true. People who think the second is fluid want to take the first one word for word.

Alpha brings up a great point. In general, people who see no exceptions to the 1st amendment are quick to point out exceptions to the 2nd, and vice versa.

 

To me, in the 1st, the language is clear.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

 

But, to me, the intent of the last clause of the 2nd is clear as well.

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.

Again, I'm not an expert, but it seems pretty clear to me that the right to bear arms is an individual right. Of course, there is a clear basis for regulation in the first clause. If the word regulated is in the text, you can probably divine that regulation is what they had in mind.

 

It's complicated, but I don't think that the founders contemplated people going through the streets with shotguns 24/7.

 

My ultimate answer to Alpha? The two amendments are both open to interpretation -- think "clear and present danger".

[knightni]

Seems to me it can also be interpreted as in order to have the right to keep and bear arms that you be a member of a militia.

[NorthSideSox72]

Seems to me it can also be interpreted as in order to have the right to keep and bear arms that you be a member of a militia.

But again, as the quote that Strange posted earlier states... what difference does that make? The militia was a citizens' army, not a national one. They are one in the same for this purpose. A militia is not a standing national army.

 

[EvilMonkey]

Gun owners are already regulated with all the laws and registration that we have to do. Well regulated.

[FlaSoxxJim]

But again, as the quote that Strange posted earlier states... what difference does that make? The militia was a citizens' army, not a national one. They are one in the same for this purpose. A militia is not a standing national army.

 

The National Guard is not a standing national army. That is what the militia's of Madison and Jefferson evolved into, to the degree that the National Defense Act specifically refers to the constitutionally derived authority of the federal government to call the Guard to national service in time of crisis. Do you think that today's "militias" – extremists armed paramilitary groups driven an anti-government conspiracy-oriented ideologies were the types of people Jefferson thought the nation would be able to call upon to repel an invading force?

Edited March 20, 2008 by FlaSoxxJim

[StrangeSox]

The National Guard is not a standing national army. That is what the militia's of Madison and Jefferson evolved into, to the degree that the National Defense Act specifically refers to the constitutionally derived authority of the federal government to call the Guard to national service in time of crisis. Do you think that today's "militias" – extremists armed paramilitary groups driven an anti-government conspiracy-oriented ideologies were the types of people Jefferson thought the nation would be able to call upon to repel an invading force?

 

No one is making that argument, so its a strawman.

 

BTW, you, me, and most people on Soxtalk are already members of the militia.

 

http://uscode.house.gov/download/pls/10C13.txt

 

10 USC CHAPTER 13 - THE MILITIA

 

Pertinent portion:

 

(a) The militia of the United States consists of all able-bodied

males at least 17 years of age and, except as provided in section

 

313 of title 32, under 45 years of age who are, or who have made a

declaration of intention to become, citizens of the United States

and of female citizens of the United States who are members of the

National Guard.

 

This code was revised in the 50's, so it isn't just an 18th century hold-over. It also clearly states that the militia is NOT the same as the National Guard.

 

Some more pertinent quotes:

George Mason: "I ask you sir, who are the militia? They consist now of the whole people." (Elliott,

Debates, 425-426)

 

Richard Henry Lee: "A militia, when properly formed, are in fact the people themselves...and

include all men capable of bearing arms." (Additional letters from the Federal Farmer, at 169, 1788)

 

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

 

James Madison: "A well regulated militia, composed of the people, trained to arms, is the

best and most natural defense of a free country." (1st Annals of Congress, at 434, June 8th 1789,)

 

Samual Adams: "The Constitution shall never be construed to prevent the people of the United

States who are peaceable citizens from keeping their own arms." (Convention of the Commonwealth

of Mass., 86-87, date still being sought)

Patrick Henry: "The people have a right to keep and bear arms." (Elliott, Debates at 185)

Thomas Jefferson: "Laws that forbid the carrying of arms...disarm only those who are neither

inclined or determined to commit crimes. Such laws only make things worse for the assaulted and

better for the assassins; they serve to encourage than to prevent homicides, for an unarmed man

may be attacked with greater confidence than an armed man." (1764 Letter and speech from T.

Jefferson quoting with approval an essay by Cesare Beccari)

 

George Washington: "Firearms stand next in importance to the Constitution itself. They are the

people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than

99% of them [guns] by their silence indicate that they are in safe and sane hands. The very

atmosphere of firearms everywhere restrains evil interference [crime]. When firearms go, all goes,

we need them every hour." (Address to 1st session of Congress)

 

Back in the 18th century, a "regular" army meant an army that had

standard military equipment. So a "well regulated" army was simply one that was "well equipped." It

does NOT refer to a professional army. The 17th century folks used the term "STANDING Army"

to describe a professional army. THEREFORE, "a well regulated militia" only means a well equipped

militia. It does not imply the modern meaning of "regulated," which means controlled or administered

by some superior entity. Federal control over the militia comes from other parts of the Constitution,

but not from the second amendment

Edited March 20, 2008 by StrangeSox

[NorthSideSox72]

The National Guard is not a standing national army. That is what the militia's of Madison and Jefferson evolved into, to the degree that the National Defense Act specifically refers to the constitutionally derived authority of the federal government to call the Guard to national service in time of crisis. Do you think that today's "militias" – extremists armed paramilitary groups driven an anti-government conspiracy-oriented ideologies were the types of people Jefferson thought the nation would be able to call upon to repel an invading force?

Key phrase bolded. Evolved into. The militias then were in the classic sense - citizen military, not national and not standing. Callable, if you will. What the National Guard is now has evolved pretty far away from that, I'd suggest. And of course no, those militia whackos out there now are not what they had in mind either, exactly. Its actually something between the two, plus some police work thrown in too.

 

But the key thing here is, the militia then WAS the people. It is therefore quite clear to me that the right to bear arms was intended for the people, not for a National Guard.

 

[NorthSideSox72]

No one is making that argument, so its a strawman.

 

BTW, you, me, and most people on Soxtalk are already members of the militia.

This code was revised in the 50's, so it isn't just an 18th century hold-over. It also clearly states that the militia is NOT the same as the National Guard.

Thank you. I was just typing that, though you did one better by finding the codification.