Posted on 10/19/2009 9:59:25 AM PDT by neverdem
As the U.S. Supreme Court makes its stately way into the new term, a case over the horizon promises to hit the 20,000 gun control laws in this country with the impact of a 9mm round.
The prep work came last year in District of Columbia vs. Heller. A narrow 5-4 majority struck down the gun control law in the nation's capital, and for the moment settled an argument over just what the Second Amendment to the Constitution, part of the Bill of Rights, actually means.
The Second Amendment reads, "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 argument has centered on whether that language means a state militia has a right to bear arms, or whether there is an individual constitutional right to have a weapon.
The Supreme Court majority, in an opinion written by conservative Justice Antonin Scalia, said it means there is an individual right to that Glock or Beretta.
The gun control debate can be an emotional one for those on either side of the fence, such as members of the National Rifle Association or the anti-handgun Brady Campaign. Many see it as a red state, blue state issue, part of that "culture war" or "Kulturkampf" characterized by Scalia in dissent in 1996, and by conservative Patrick Buchanan in a series of speeches.
Apparently, no issue provokes more fear in members of Congress with rural constituencies. Analysts in West Virginia have pointed out that the state voted Republican in the 2000 and 2004 presidential races, ensuring George W. Bush's victory, in part from fear of gun control.
Scalia, however, said it all comes down to the meaning of words.
The Washington gun law banned handgun possession "by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns," and providing "separately that no person may carry an unlicensed handgun." It did allow the police chief to issue 1-year licenses, but required those few authorized to own a firearm to keep them unloaded and dissembled, or made safe by a trigger lock.
Scalia's opinion, handed down last June 26, said the handgun ban and the trigger lock requirement violated the Constitution: "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."
But what about that clause dealing with the militia?
Scalia calls it the "prefatory clause," and calls the second part of the amendment, the one dealing with "the right of the people," the "operative clause."
The prefatory clause clarifies the amendment -- sets up a justification for it -- but "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause," Scalia said.
Moreover, the right to bear arms was not initially established in the Second Amendment, Scalia wrote. The amendment "codified a pre-existing right" dating back to the days when the Catholic English King James II tried to keep Protestants from obtaining weapons. Later, William and Mary guaranteed Protestants the right to bear arms in the Declaration of Rights, which became the English Bill of Rights.
But government is not powerless when it comes to regulating arms, the court majority said in the opinion's syllabus:
"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the amendment or state analogs. The court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
As sweeping as the opinion in Heller is, advocates of gun rights and gun control are waiting for the other shoe to drop this term.
Heller recognized an individual's right to bear arms, but the Supreme Court still has to decide whether Heller should be extended beyond federal jurisdictions such as the District of Columbia to "every city, county, and state in the nation," the Christian Science Monitor reports.
That question is central to McDonald vs. Chicago, a challenge to that city's gun control registration restrictions, which the high court has agreed to hear later this year. Though not yet scheduled, the case should be heard sometime in January or later, with a ruling handed down before the end of the term in late June.
Among the questions in the case: How should the Bill of Rights be applied to the states, as opposed to the federal government -- in the early days of the Republic, it was assumed that the first 10 amendments to the Constitution applied only to the federal government. It was only later that the courts, including the Supreme Court, used the 14th Amendment to apply them to state and local governments.
Legal Times correspondent Tony Mauro points out a group of liberal and conservative academics are pressing for a change, a "new pathway," in the Chicago challenge.
For the most part, in the 20th century the courts have used the 14th Amendment's "due process" clause -- due process in its simplest meaning essentially describes fair treatment in the legal process -- to make the states honor individual rights.
But, "that new pathway runs through the long-dormant 'privileges or immunities' clause of the 14th Amendment," Mauro reports. "In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language -- 'No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States' -- is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale."
Legal niceties aside, McDonald vs. Chicago should have a real impact on the streets, especially if the five-justice majority in Heller decides the judgment in that case should apply nationwide.
The National Rifle Association says there are 20,000 "gun control" laws in states and local communities.
So far, no police department has filed a friend-of-the-court brief either supporting or opposing the Chicago challenge at the Supreme Court.
© 2009 United Press International, Inc. All Rights Reserved.
Great, we're just gonna wound it.
9mm is just .45 ACP set on "stun".
Or, if the Pope can absorb 3 9mm rounds and walk away, even allowing for the intervention of the Blessed Virgin, that's NOT what I want when the chips are down.
I guess the media will be rolling out a lot of anti-gun stories any day now.
The Communists are hard at work.....the Second Amendment is a real danger to a corrupt, anti-American government.
I’ve gotta get faster...you beat me to it! :)
Maybe all of those who have been stocking up on guns and ammo since zero got elected have been right.
“When guns are outlawed only outlaws will have guns”.
They’re not getting mine, so I guess someday I’ll be an outlaw too.
Translation: "wait until we put another couple of liberal justices on the Supreme Court."
Here's where this should begin & end.....The 2nd Amendment is part of The Bill of Rights. Is the BOR meant for the State? No, it's of, for & by The People. PERIOD!
Does the First Amendment give The State the right to talk about itself? It's ridiculous.
Because any militia the feds might use need to be REGULATED (kept in check; challenged), the citiziens have the right to keep and bare arms for that purpose.
Scalia is right about one thing. Whenever the constitution and bill of rights uses the words “the people” it is always referring back to the foundational concept on which the whole thing is founded: The rights of the individual.
“The People” always means individual citizens.
Always.
“A well armed citizenry, being necessary to the preservation of liberty......”
Actually, that's probably an accurate analogy. Gun laws are like Zombies - they will just keep coming.
Where did you get that gem?? Kinda turns traditional interpretations on their pointy little heads, don’t it?
Seriously, if the supreme court ruled today that the people
cannot keep arms, how many of you would turn your guns into the government?
Barring unforeseen events, the left will have to appoint four "progressive" justices to tilt definitively the court to the left. The three geezers on the SCOTUS are lefties. The next two replacements are probably for John Paul Stevens, born April 20, 1920, and Ruth Bader Ginsburg, ailing from cancer, recently passing out from anemia.
It’s rather a piece of history.
The North Carolina REGULATORS, an actual citizens armed group (1760s/70s), had as their purpose to keep the British Militia at bay (e.g. REGULATE their pestoring activities) after having been harrassed by them several times in the Piedmont.
That’s just one example.
I believe that plays in the actual context behind the very wording of the Second Amendment.
Now, in the Battle of Alamance, the Regulators got whipped by the British, but did so much damage to them that the British Militia never came back. But then it was about time for the War for Independence to commence.
Some history little read: The Regulators included many Baptists who were members of Shubael Stearns’ Sandy Creek Baptist Church, near present-day Greensboro.
Stearns himself was more or less of a pacifist (many suppose from old Anabaptist tradition) and was not in favor of his people taking up arms in that way. It split his church all up, and the Sandy Creek Baptist Association as well. Well, old Brother Stearns passed away in 1771, and never saw the actual big war.
But well familiar with both Stearns and the North Carolina situation was a man named John Leland, the leader of the Virginia Baptists. John Leland was held in most high regard by James Madison and Tom Jefferson. Leland and Madison were close personal friends. Nobody lobbied harder for a Bill of Rights than Leland and the Virginia Baptists.
Still in their thinking and reasoning were the NC REGULATORS of 20 years past.
You probably already are but just don’t know it.
No, I’m not an outlaw yet, I bought them legally.
Is Scalia setting up the recognition that the right simply includes the home and anywhere an individual my be or is he limiting the right to the home if our state and local governments so choose.
Honestly, we're not winning the fight if licensing of CCW continues. Licensing needs to be done away with wholesale. We tolerate zero licensing of speech with minor limitations on its exercise (mostly against Leftists bent on anarchy - a precursor to dictatorship).
I think the Supreme Court Justices are scared. They are part of the political establishment in DC. They have to undo this very carefully.
I see that you sent me a FRmail, but the software won’t let me open it. I will try later.
It’s about a book I’m reading, a bio of General B. Schreiver. No biggie.
Mail isn’t working for me either.
Ok! I will try tonight. Thanks.
Much of what Scalia wrote is just dicta. What he wrote is just his opinion about what are reasonable infringements. Why should non-violent felons be barred from using firearms for self defense? The meat of the decision is that the Second Amendment guarantees an individual right.
Don’t you know that the BATFE can make your firearms illegal with a raid, wild claims, and stroke of their pen?
And no, I am not kidding.
Only if they can find them.
And no, I don’t think you are kidding, since they have already done it to some very unfortunate people who lost innocent family members in the raids.
Like the Founders wrote TEN Specific Rights(1) for "The People" and they MEANT "THE PEOPLE". BUT the 2nd one really isn't for "The People", it's a 'right' for a state.
That's more asinine what the definition of is, is. And - could only come from a Moonbat pinko-commie Liberal with the IQ of a stick. (I'm mentally picturing Alan Colmes)
(1) I'm counting them all as they're numbered. Even though many contain more than one right in it, like the 1st.
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Thanks neverdem.The Second Amendment reads, "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 Supreme Court majority, in an opinion written by conservative Justice Antonin Scalia, said it means there is an individual right to that Glock or Beretta... Scalia's opinion, handed down last June 26, said the handgun ban and the trigger lock requirement violated the Constitution... what about that clause dealing with the militia? Scalia calls it the "prefatory clause," and calls the second part of the amendment, the one dealing with "the right of the people," the "operative clause."Just adding to the catalog, not sending a general distribution. |
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Mine is not either.
Personally I feel there are too many comas in the Second,
It should only have two, one after militia, and one after
state, which was the way it was first drafted.
Also to my mind,is that state is not capitalized so it
could also mean a state of being, such as free, not
necessarily a state of the union.
But that’s just me a simple citizen trying to make sense
out of the founding fathers, which of course is what they
were intending.
Why should non-violent felons be barred from using firearms for self defense?
Not only that, it is against the law for convicted felons
to wear a bullet proof vest, a totally non agressive self
defense.
Sorry, I worry about Scalia. He strikes me as a big government conservative. He’s had chances to side with the individual many times and skipped it.
I don’t know why everyone gets wound up about the militia clause. At the time the bill of rights was written, many states already defined what the militia was, and the concept was well-known. The militia was quite simply— everyone. We are all the militia. Although some states narrowed the definition to include “all able-bodied men between the ages of 16 and 60”. “Well regulated” meant well-trained and disciplined. The gun control advocates ignore the original meanings of these words and apply the current meanings, and in doing so, the completely miss the meaning of the 2nd Amendment.
I'm not worrying about Scalia in McDonald v. Chicago. If he doesn't agree with Gura's privileges and immunities argument, Gura's also going to make the due process argument.
How can folks in Washington D.C. have more rights than those in Chicago?
Seeing the writing on the walls, some of the liberals on SCOTUS may switch their vote from how they voted in Heller in order to breath new life in the privileges and immunities argument so as to resurrect the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Statists of all persuasions might not be pleased.
I’ll be delighted to see the statists suffer, but will the people assert their rights.
I think your analysis is correct, but I wish we had five Thomases on SCOTUS. Can you imagine the liberties we’d enjoy again?
followed very quickly [ie before we can even breath a 'hell yeah'] by a standardized set of federal 'common sense' gun CONTROL laws, for the children, of course...
I don't think so. Once it is incorporated as an individual right, gun grabbers will be on defense for a long time to come, IMHO.
Reading the Electoral Tea Leaves (Some Good News)
Spending Escalates in New York Special (NY's 23rd Congressional District)
Ready to Revolt: Oath Keepers pledges to prevent dictatorship in United States
Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.
The Americans rejected the Stamp Act 1765 (which was repealed), and in 1773 violently rejected the remaining tax on tea imports at the Boston Tea Party. The Parliament considered this an illegal act because they believed it undermined the authority of the Crown in Parliament. When the British then used the military to enforce laws the colonists believed Parliament had passed illegally, the colonists responded by forming militias and seized political control of each colony, ousting the royal governors. The complaint was never officially over the amount of taxation (the taxes were quite low, though ubiquitous), but always on the political decision-making process by which taxes were decided in London, i.e. without representation for the colonists in British Parliament. In February 1775, Britain passed the Conciliatory Resolution which ended taxation for any colony which satisfactorily provided for the imperial defense and the upkeep of imperial officers.
In case anyone wants to read it, here is the URL.
http://en.wikipedia.org/wiki/No_taxation_without_representation
>>Maybe all of those who have been stocking up on guns and ammo since zero got elected have been right.
They are especially right given this sort of thing keeps popping up again and again:
Obama Czar Agrees With Mao – Also Thinks Free Market is ‘Nonsense’
http://www.breitbart.tv/obama-czar-agrees-with-mao-too-and-thinks-free-market-is-nonsense/
“Political power flows from the barrel of a gun” features prominently in his statements.
There should not be a comma after “militia” either. They used way too many commas in the eighteenth century, like every time they figured somebody needed to take a breath.
Time to get to the sporting goods store. Think I’ll stop on my way home from work, see if they have anything left in stock. 357’s should be.
Mark Knopfler has a new tune - “Cleaning my gun”.
- Think I’ll do that too.
Practice....more practice.
Hit the right spot and you can bring someone down with a .22.
It’s not a stopper in military issued FMJ, that’s for sure. But modern JHPs? Another matter.
The Florida Constitution has two different provisions for a state militia: The organized militia such as a national guard and the unorganized militia which is everybody else. Saw this come into play afrter Hurricane Andrew. Folks in the disaster zone in the south end of the county were patrolling neighborhoods with AK47's and AR15's to keep looters away. It wasn't unusual to see a local cop chatting on a street corner with an individula carrying a slunk AK speaking of criminal activity in the area. The cops and the real national guard (I was in the guard at the time) knew the citizens were only there to help. They saved the national guard's bacon more than once, too.
Right on that. I should talk, lugging a .38 Super... Corbon DPX.
I hope you are right, but the example of DC council pos-Heller makes me BLOAT...
Yes, but I want to carry a weapon, not show them my naked biceps.
All you’re doing is playing the odds. And when the panic’s on I don’t want to have to measure by the fraction of an inch.
“....when the panic’s on, I don’t want to have to measure by the fraction of an inch.”
Amen, Sister!
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