Posted on 05/02/2007 2:14:58 PM PDT by neverdem
There is a case working its way to the Supreme Court that might settle one of the biggest unanswered questions in constitutional law: Does the Second Amendment guarantee an individual right to own a gun? Whether or not you own a gun, this is a case you should care about.
I’m not just saying that because I’m the immediate past president of the National Rifle Association. (Last month I completed my two-year term as president and nine years as an officer of the NRA.) I’m also saying it as an attorney who’s been arguing cases in federal court for more than 30 years, and who understands how a clear precedent on a constitutional question can determine the outcome of a case.
There is a case moving towards the High Court that will likely give us such a precedent on your right to own a gun – a precedent that is either good or bad, depending on your point of view. That case is Parker v. District of Columbia.
I often get asked why there is such a passionate debate on whether the right to own a firearm is a civil right. Everyone agrees that the Constitution speaks about firearms. The Second Amendment speaks of, “the right of the people to keep and bear arms.”
The disagreement is over what those words mean. Most people believe what is called the individual rights view of the Second Amendment, meaning that all law-abiding, peaceable citizens have the individual right to own firearms. The opposing interpretation is called the collective rights view, meaning that the Second Amendment is only a right of state governments to arm their National Guard units.
Polls show that more than 70% of Americans (correctly) believe that they have a civil right under the Constitution to own a gun. But in America we don’t decide constitutional controversies by taking a poll.
Only federal courts—and ultimately the Supreme Court—have the power to interpret the Constitution in a binding way. The Supreme Court has never spoken definitively on the scope or meaning of the Second Amendment. And the Court’s silence has allowed cities and states to enact broad, sweeping laws hostile to gun ownership.
The worst of these laws is the District of Columbia gun ban. If you live in our nation’s capital, you cannot have a handgun or a readily-usable rifle or shotgun in your own home for self-defense. No ifs, ands or buts. It is a near-blanket prohibition on firearms and self-defense.
That brings us to the Parker case. The named plaintiff, Shelly Parker, lives in the high crime area of DC and has been threatened by thugs and drug dealers. She wants to be able to protect herself and she sued the city government over the gun ban. It’s shocking to realize that in one of the most violent cities in America, a woman is denied the tool that might save her life.
But it’s the law in the District, so she took the District to court.
On March 9, in a landmark ruling the U.S. Court of Appeals for the District of Columbia Circuit struck down the DC gun ban as unconstitutional in a 2-1 decision. The DC Circuit Court held that the Second Amendment protects a citizen’s civil right to own firearms, adopting the individual rights view, and invalidated the DC law.
As you would expect, the DC government is appealing the ruling. Earlier this month DC petitioned for what is called an en banc rehearing. That means that all eleven eligible judges on the DC Circuit would hear the case, instead of the usual three-judge panel. As you read this we are waiting to see if the circuit court grants or denies that petition.
Regardless of whether the full DC Circuit Court hears the case en banc, the losing party will certainly appeal to the U.S. Supreme Court. And without going into all the legal rules and reasons that help determine whether the Court takes a given case, let me just say the odds are good that the Court will take this one.
This case is monumental. Already the DC Circuit Court opinion—if left untouched—will totally change gun ownership rights in the District of Columbia. And the DC Circuit is one of the most respected and well-credentialed courts in America. Its opinions and rulings have a major impact on courts and lawmakers all over the country.
But as important as the DC Circuit is, it pales in comparison to the Supreme Court. If the Supreme Court takes this case, it could have a huge impact all across our land.
There’s so much more to be said regarding this case. I’ll have more to write on this once the DC Circuit decides whether to rehear en banc. In the meantime, this is a case you want to be watching. There’s a lot at stake, not just for gun owners but for all who believe in upholding the Constitution and enforcing our civil rights.
Sandy Froman is the immediate past president of the National Rifle Association of America, only the second woman and the first Jewish American to hold that office in the 136-year history of the NRA.
The gun-grabbers have steered as far away from that as they possibly could for years, because they know if they lose it will be really bad for them.
They would prefer passing 2,000,000 local gun control laws and wear us down to losing one USSC case and being finished.
Going for a Roe v Wade style victory. It’s a big gamble, but like all big gambles sometimes you win big too
bump and bookmark
I should have RTFA.
They’re going for broke with this one because the tide of sentiment is going against them. More and more people are buying guns.
Mayor for Life Barry has moved to repeal the law - that would obviate the court case, and keep it out of the USSC.
I think Massachussets paid him off.
But the loser of that case will appeal to the US Supreme Court.
Four justices will grant certiorari: either 4 conservatives or 4 liberals, depending on which side wins.
And then the Supreme Court hears the case.
Justice Kennedy may be the deciding vote on yet another landmark case.
But here’s an interesting thought: Justice Souter was mugged jogging in Washington DC. He might think there’s a personal right to arms.
Let’s not lose sight of the fact that there is a great difference between the right to bear arms and the right to fire them.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
There's reason for cautious optimism. Here's the actual paragraph from Parker:
"We also note that at least three current members (and one former member) of the Supreme Court have read "bear Arms" in the Second Amendment to have meaning beyond mere soldiering: "Surely a most familiar meaning [of 'carries a firearm'] is, as the Constitution's Second Amendment ('keepand bear Arms') and Black's Law Dictionary . . . indicate: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for"bear Arms."
Do you now think Ginsburg and Souter will contradict themselves?
I thought you only had to be able to read English to figure that one out, but then I usually don't over-analyze things.
That’s just it - they’ve upped the stakes, and the consequences of failure are unthinkable for both sides.
They’re going for broke.
Any one out there have any confidence in our Supreme Court?
If you do then you are either on drugs or stupid.
Give them credit as they have allowed that partial birth is murder but what the hell else have they gotten right in the last ten years or so?
Got a few bucks? Yes you too can buy their vote like most judicial jurisdictions.
I forgot to add this:
The gungrabbers see the tide of sentiment turning against them; they see things like the Tennessee gun de-restriction, Governor Perry’s statement about the RKBa, the ever increasing numbers of states and places with CCW and/or open carry, the failure of their predicted bloodbaths after deregulation, and the reduction of their power in areas where their lies have become transparent to all.
They rightfully fear that the logical conclusion of their loss would be the total revocation of nearly all gun controls, “hard won” (in their opinion) over the course of a century.
Then we amend the Constitution to re-establish the individual RKBA. Do you honestly think that the legislatures of 3/4's of the states WOULDN'T pass such an amendment??? With 70% of to populace already believing that such a right exists.
If they win, the "awkward phase" will be over.
More states than that already protect an individual RKBA. Almost every state protects concealed carry. We have 90% of what we already want. All we have to do is work on that other 10%.
But no. No, that's somehow not good enough. There are those on this forum whot insist on a U.S. Supreme Court all-or-nothing showdown -- despite the fact that every lower federal court in every lower federal court gun case (save two) have ruled that the second amendment protects a collective, not individual, right.
Idiots.
Nice little dig at the Ninth Circus in there.
Right.
One Old Yankee WomanWithout arms, Percy's supplies would have gotten through and we'd have no Second Amendment unless Parliament deemed one necessary for we colonials still.
Meanwhile, word got out that General Percy's supply train was moving in advance of his men, and without much protection. A dozen older men of Menotomy -- too old for the regular militia -- set up to surprise the wagons in the center of their town. The wagons arrived and the old men demanded surrender. When their command went unheeded, they opened fire on the wagons, killing soldiers and horses. The survivors ran off, abandoning their weapons and eventually surrendering in a field to an old woman, Mother Batherick. She delivered her prisoners to a minute man captain and told them, "If you ever live to get back, you tell King George that an old woman took six of his grenadiers prisoners." The story did get back and one English paper asked, "If one old Yankee woman can take six grenadiers, how many soldiers will it require to conquer America?"
Let me explain who you’re calling an idiot.
The NRA didn’t start this lawsuit.
Gunowners didn’t start this lawsuit.
A guy who never owned a gun in his life started this lawsuit.
Gunowners and the gun groups are just going to have to live with that fact and make the most of it.
Funny. I thought it was Ms. Parker and the District who were insisting on having their day in court. Didn't know it was all due to us idiot FReepers. Thanks for clarifying that for me.
You really are a moron aren't you?
I truly believe that you are anti-second amendment, as hysterical as you get over this issue.
You are also too ignorant to understand what the Majority in Parker did to Souter and Ginsburg with this statement:
"We also note that at least three current members (and one former member) of the Supreme Court have read "bear Arms" in the Second Amendment to have meaning beyond mere soldiering: "Surely a most familiar meaning [of 'carries a firearm'] is, as the Constitution's Second Amendment ('keepand bear Arms') and Black's Law Dictionary . . . indicate: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for"bear Arms."
They just put a shot across the bow of SCOTUS and these two justices that they are already on record in a various opinions that the Second Amendment is an individual right.
Why don't you ship your resume to AlGore since Global Warming will be the next issue in need of your spamming talents...
Idiot.
LOL! Thanks for the links.
LOL! IIRC, he never would write that he read Parker v. D.C. after I asked him.
I wouldn’t bet on that. The Parker decision is very long, did you read the whole thing? It affirms that states can regulate the bearing of arms, even though that wasn’t at issue in Parker. Washington D.C. is the only place in this country that actually prohibits handgun ownership. The next worst places are New York, Boston, and Chicago. Although you have to jump through a lot of hoops in New York, you will eventually get the permit to own the handgun. I don’t know about Boston and Chicago, I’ve heard it is the same in those cities.
Nothing happens if they win. For the most part, most jurisdictions act as if the people do not have an individual right to keep and bear arms. Many CCW states already have a right to bear arms in their state constitutions, and this ruling would not affect them in any way.
Really, they just have a lot to lose if this is upheld by the full DC court and is then upheld by the Supreme Court. I think it would have a small damaging affect on gun ownership and CCW if the case is overturned by the Supremes, but the tendency has been more restriction, and treating people like there is no individual right to gun ownership, so what would change from overturning the case? Nothing I can see. Guns will still be banned in DC, Chicago and New York.
I accent "disregard." He's only spoiling for a fight. May be wrong but I think we're dealing with someone with a crocodile mouth and a hummingbird ass, too.
That would be me... I want the showdown. Despite being 1 conservative shy of expecting an individual right to RKBA being upheld, I don’t think the court will ever be more conservative over the next 50 years or so, then it is now.
I don’t think we are going to have a long run of conservative presidents and senators that produce a solid 5 minimum majority of truly conservative members of the Supreme Court anytime soon in the future, or ever.
Maybe I am just ignorant. I think we are all guessing. But I would like to take this chance, with 4 members of the Supreme Court giving us a fighting change to uphold the DC ruling to overturn the DC ban now, because I see our prospects only dwindling in the future.
Where we seem to disagree is in your belief that things are getting better or will get better, vs. my belief that things are certain to get worse for gun owners.
Britain and Australia both struck very quickly to ban guns.
The US electorate is not getting any smarter, IMHO. Cities are liberal and vote anti-gun. It is the rural districts that tend to vote pro-gun. More people are leaving rural districts to live in cities. This trend is working against us. The nation is being flooded with illegal immigrants who live in big cities, and who’s children will all be potential voters.
Maybe I am jumping the gun, but I don’t see the opportunity getting better down the road. I don’t see that if we just keep our heads down and carry a big stick, the ever-increasing liberal voter pool coming with new waves of immigrants will leave gun owners alone and in peace. Liberas are the least tolerant of all people I know.
Maybe I am an idiot for wanting a show down, but we have lost much of our RKBA rights since 1900, and I for one want a change to stop that race away from freedom rather than to see my gun rights chipped away steadily and certainly, decade after decade.
Not true. The "collective rights" theory cases are only of modern vintage, as is the theory itself. The earlier legal record is clear that the right was intended, as was the rest of the bill of rights, as an INDIVIDUAL right. Even a great many liberal constitutional academics agree.
There are collectivist communitarian's on this forum who insist, -- [in a SCOTUS showdown over the 2nd Amendment] -- that the lower federal court 'rulings', -- which claim the second amendment protects a collective, not an individual right, -- will affect the USSC decision.
This collectivist/'majority rules' position on the carrying of arms has been throughly discredited in recent years, as is made evident in Parker.
We are seeing the last gasp of the concept that State & local communities can deprive people of their life, liberty or property without due process of [constitutionally based] law.
"-- [T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . ."
-Justice Harlan-
But you are opposed to the individual right. Not surprised with your comment.
Scouts Out! Cavalry Ho!
If they win in SCOTUS, after they lose in en banc appeal, they still lose, because we already have the 'reset button' on the US Constitution. (If the SCOTUS hands us a defeat, the entire experiment in self-governing needs to get refreshed...usually with the blood of tyrants and patriots.)
Ginsberg at least, did so in Bush V. Gore on a matter she'd ruled with the unanimous majority just weeks before.
I think they will.
"Is this the hill I want to die on?"
MOLON LABE
“Any one out there have any confidence in our Supreme Court?”
No
“This lawsuit”? I didn’t say idiots started this lawsuit. I said the idiots are those who want a U.S. Supreme Court showndown.
Yes, they did. And they got it. No problem there.
"Didn't know it was all due to us idiot FReepers."
No, I said the idiots were those on this board who are now pushing for a U.S. Supreme Court showdown.
True, I hate those lawyer ads where they’re on TV trying to hustle up some personal injury lawsuit.
WHAT??? They're "on record" for saying what?
Did you even read Muscarello? The Muscarello court was attempting to define the phrase "carries a firearm" in Section 924(c)(1) of Title 18, United States Code to see if enhanced punishment applied to the defendant in that case.
The court mentioned a number of possibilities of what it meant, including the second amendment. BUT, they concluded, "Such references, given their variety, are not reliable indicators of what Congress meant, in §924(c)(1), by “carries a firearm.”
Your level of ignorance on this subject is astounding. You'd hang everything on the Parker court interpretation of what Souter and Ginsburg said in the Muscarello case? Calling you a moron would be a compliment.
But even IF the Muscarello opinion could be interpreted as saying the second amendment protected an individual right, so what? Numerous lower federal courts in numerous cases have said the same -- an individual right to keep and bear arms as part of a Militia. Even the favorable court in Emerson recognized this in their opinion:
"Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model."
-- United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
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