The Most Important Gun Rights Court Decision... Ever!

http://canticleforleibowitz.blogspot.com/2007/03/most-important-gun-rights-court.html ^ | March 9, 2007 | Leibowitz

[Bob Leibowitz]

Just like in baseball, there are three touchstones a decision must pass in order to be a home run.

1. It needs to be intellectually defensible. 2. It needs to be convincing. 3. To pass third base, it needs to turn a phrase that will grow into public usage.

Today’s decision by the U. S. Court of Appeals for the District of Columbia spectacularly accomplishes all three. This decision will be the fundamental platform from which will grow future appellate and Supreme Court decisions expanding and solidifying our rights under the second amendment.

This action was filed by six residents of DC, and supported intellectually and financially by the libertarian-leaning CATO institute. One of the six plaintiffs, who are here known as the Appellants, is a DC special police officer who had actually been denied a permit to register his pistol and had therefore suffered the actionable damage of being prevented from keeping a firearm for self-defense.

The majority opinion will stand up to rigorous attack.

It sets out classic, historic, academic and precedentual support of its unequivocal finding that the second amendment defines an individual right to keep and bear pistols and rifles in support of self defense and other lawful uses.

[Bob Leibowitz]

This is a lengthy, balanced view of the historic importance of the decision by the 2nd Circuit Court of Appeals (DC), arguably the nation's most influential, affirming that the Second Amendment protects a pre-existing individual right to keep and bear arms.

[calex59]

It sets out classic, historic, academic and precedentual support of its unequivocal finding that the second amendment defines an individual right to keep and bear pistols and rifles in support of self defense and other lawful uses.

The second amendment says nothing about limiting our arms to rifles and pistols. It goes far deeper than that. It is meant to arm us against the government should such need arise, therefore we are not limited to any certain types of arms. Of course I would not expect any modern judge to read the amendment the way it is written.

[Enterprise]

2nd Amendment bump!! The good guys win one!

[Shooter 2.5]

and supported intellectually and financially by the libertarian-leaning CATO institute.

Uh, nope. Financed by Robert Levy who has a connection to the Cato Institute.

[Bob Leibowitz]

You are correct. I wrote the article prior to Mr. Levy's interviews. I will post a correction. Thank you!

[Gandalf_The_Gray]

Many years ago, when I was young and foolish, I voted for a Democrat for president. He won and the next four years were a constant reminder of my foolishness. I have subsequently voted strict party line Republican when possible.

By that I mean living in Southeastern Wisconsin precludes a straight ticket vote since we have "one party" rule here at County level and below. And the only guy lonelier then the Maytag repair guy is the Republican Party County chair. Sometimes the best you can do is keep the radical bomb throwers at bay.

As the years passed I have found myself looking further and further toward a conservative bent to the extent that I now find myself somewhat to the right of Attila the Hun. I now find it easier to look at a candidate's record thru the prism of the Second Amendment. The penultimate issue that trumps all others is the Right To Keep And Bear Arms and I shall henceforth and forever more consider it to be the deciding factor in casting my vote.

Regards,
GtG

PS I really liked your tag-line!

[KrisKrinkle]

 

"The second amendment says nothing about limiting our arms to rifles and pistols."

The second amendment says nothing about "the right of the people to keep and bear arms" except that it shall not be infringed.

If I recall correctly:

Jefferson said "no free man shall ever be debarred the use of arms" which might imply that someone who is not a "free man" can be debarred the use of arms and that  the "right of the people to bear arms" does not extend to those who are not  free men.

Samuel Adams wanted to ban any law that would "prevent the people of the United States who are peaceable citizens from keeping their own arms" which might imply that people who are not of the United States and/or who are not peaceable citizens might be prevented from keeping their own arms and that the "right of the people to bear arms" does not extend to those people.

Early state constitutions and such said things about the right to bear arms for personal defense, defense of the state and hunting, which might imply that the right might be  limited to those purposes.

And yet none of this is reflected in the Second Amendment, which conveys a broader yet undefined view of the right under discussion. 

As you correctly say, "It goes far deeper than that. It is meant to arm us against the government should such need arise, therefore we are not limited to any certain types of arms."

I'd venture they left it undefined  because they had recently been through a War of Revolution and feared that such a war might be necessary again but couldn't bring themselves to write an amendment  stating "the right of the people to bear arms shall not be infringed because they might need those arms to overthrow the government established by this Constitution." 

So they wrote what they wrote and left it to those who followed (not all of whom have been as thoughtful as the Founders) to figure things out.

Conservatives/gun rights advocates need to explore the scope of the "right to keep and bear arms", what might be covered by the right and what might not be covered.  From what I've seen, that's done only to a certain extent on FR by those who argue "gun rights" versus "property rights".  As I read Parker the scope of the "right to keep and bear arms" is going to become more important and need more thought.

 

 

[narses]

Abortion is right there as well.

[supercat]

Jefferson said "no free man shall ever be debarred the use of arms" which might imply that someone who is not a "free man" can be debarred the use of arms and that the "right of the people to bear arms" does not extend to those who are not free men.

Did the Second Amendment apply to slaves? Should it apply to penitentiary inmates?

[El Gato]

The second amendment says nothing about limiting our arms to rifles and pistols. It goes far deeper than that. I

While that is indeed true, the judges can only address the case before them, which involves rifles, handguns and shotguns.

Once the Courts establish that the right protected is an individual one, then will come the the time to define the meaning of "arms".

Again, IMHO, arms is arms, from swords to 155mm howitzers and F-16s.

I take that back *not* IMHO, but in the opinions of the founding fathers.

Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
Tench Cox, Writing as "A Pennsylvanian," in "Remarks On The First Part Of The Amendments To The Federal Constitution," in the _Philadelphia Federal Gazette,_ June 18, 1789, p.2 col.1

"The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sward are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.... The unlimited power of the sword is not in the hands of either the federal or the state governments, but where I trust in God it will ever remain, in the hands of the people."
Tench Coxe, Pennsylvania Gazette, February 20, 1788

"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms." Tench Coxe-- Federal Gazette, June 18, 1789

[El Gato]

Did the Second Amendment apply to slaves? Should it apply to penitentiary inmates?

No, and yes. The latter have deprived of liberty and in some property via due process of law. Slaves were not free men, and the Dred Scott decision said that even free blacks could not be citizens with full rights, including the right "carry arms wherever they went". Of course that decision led to the Civil war, and the 14th amendment, which was intended to overturn it.

[El Gato]

Early state constitutions and such said things about the right to bear arms for personal defense, defense of the state and hunting, which might imply that the right might be limited to those purposes.

No just early Constitutions. In 1988, yes Nineteen eighty eight, the people of the state of Nebraska amended their existing statement of rights adding an RKBA provision, which it previously did not have, which now reads:

“All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.” Nebraska Constitution art. 1, sec.

Previously it read:

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty and the pursuit of happiness. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

Of course the "Men in Black, promptly gutted the RKBA amendment, ruling that no then current anti gun law violated the provision, and that the right was subject to "reasonable regulation and the police power". Rat Bastards, regardless of their party.

[Atlas Sneezed]

The key phrase mentioned in the column:

My favorite line, and the one I predict will be on bumper stickers in the next election:

“The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.””

[Atlas Sneezed]

The following in my opinion may prove to be the most critical part of the ruling, should it be upheld in this respect, in that it is the basis for overturning various "assault weapon" bans, machine gun bans, etc.

---

The District based its main arguments on two points. First, a ban on some firearms is not a ban on all firearms. The Court gave the argument the attention it deserved:

“The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols . . . is not a regulation, but a prohibition, of . . . ‘arms’ which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one’s home and family.”

[teeman8r]

If I recall correctly:

Jefferson said "no free man shall ever be debarred the use of arms" which might imply that someone who is not a "free man" can be debarred the use of arms and that the "right of the people to bear arms" does not extend to those who are not free men.

it doesn't matter what jefferson said... what matters is what is written in the second amendment... the right of the people... shall not be infringed...

everyone has the right to self-protection, by re-interpreting the meaning of the amendment, you are close to being as guilty as the leftists in reinterpreting it.

teeman8r

[KrisKrinkle]

"...by re-interpreting the meaning of the amendment..."

So far I have not tried to reinterpret anything.  I'm trying to get people to think.

"...what matters is what is written in the second amendment..."

What isn't written and why it was left out also matters.  As I pointed out, "The second amendment says nothing about 'the right of the people to keep and bear arms' except that it shall not be infringed."   What isn't written leads to disagreements among gun rights advocates today and their energy would be better used against the anti-gun folks than each other.

The reference to Jefferson and so forth was an attempt to shed some light on what people were thinking at the time of the writing or the second amendment.

So, what do you think is  the extent of "the right of the people to keep and bear arms"?  How does that right stack up against property rights for instance?  If there is a conflict between these two sets of rights, which should prevail and why?

 

[teeman8r]

"So, what do you think is the extent of "the right of the people to keep and bear arms"? How does that right stack up against property rights for instance? If there is a conflict between these two sets of rights, which should prevail and why?"

the right of self-preservation is human nature and the very core of the second amendment, erego "shall not be infringed." bearing arms does not eliminate the responsibility for the proper use of them, and the consequences that can follow. i should be able to carry for the ever possible need to protect myself or my loved ones or my property, yes, my property, from interlopers foreign, domestic and government.

teeman

[KrisKrinkle]

"the right of self-preservation is human nature and the very core of the second amendment,"

Good reasoning.

"bearing arms does not eliminate the responsibility for the proper use of them"

Meaning that the right to use them irresponsibly is not included in the "right of the people to keep and bear arms"?  For instance, that the "right of the people to keep and bear arms" does not include the right to walk around in public bearing a cocked Colt 1911 in your hand with your finger on the trigger, a round in the chamber and  the safety off?  (Unless you're about to justifiably fire of course.)  So a law prohibiting that would not be government infringement of the "right of the people to keep and bear arms" because the right doesn't extend that far?

"i should be able to carry for the ever possible need to protect myself or my loved ones or my property, yes, my property,"

I agree with that part about property though some do not agree.  They say it's only money, or only a car, or only whatever, but all else being equal, property should be defended.  A property crime is not just a crime against the property owner, it's a crime against civilization.  Without the right to have and hold property we revert to savagery.  On the other hand I can't see killing or severely injuring someone over small change.  More importantly, we have to be careful what we deem a property crime and why.

 

[teeman8r]

"Meaning that the right to use them irresponsibly is not included in the "right of the people to keep and bear arms"?

there is no right of irresponsibility, only consequences... bearing arms can mean walking around half cocked, but if done, like free speech's yelling of fire in a crowded theater, the consequences may be dire.

we are all free to yell fire, but the consequences of our actions may cause harm to others that we are liable... fear however of someone bearing a gun should not infringe upon that right.

as for property, everything we own, we've paid for with our labor, time away from our family etc... for anyone to attempt to steal it would be like taking a part of our lives that we cannot get back.

those with little respect for property will have little respect for human life sooner or later.

now for the 64,000 question... should paroled felons be denied the right to bear arms.

teeman

[KrisKrinkle]

"there is no right of irresponsibility, only consequences... "

Or at least there should be consequences.

The implication is that the "right of the people to keep and bear arms" covers doing so irresponsibly.  The problem I have with that is that keeping and bearing arms irresponsibly can have consequences to more people than the person who does so.  If someone keeps a ton of black powder in the basement, and due to that person's irresponsibility the ton blows up, a whole neighborhood may suffer the consequences--possibly before the someone if he wasn't home when the powder blew.  But what you say is food for thought and I'll chew on it awhile.

 

"should paroled felons be denied the right to bear arms"

In the opinion of some people, basic rights can't be denied at all, but can only be disabled--made ineffective.  That's why in some jurisdictions freed felons are said to be under disability, some of their rights have been disabled.

As to your question, if a jailed felon can rightfully be denied the right to bear arms because he's in jail as punishment, a paroled felon can  rightfully be denied the right to bear arms because he is only on parole and has not completed the punishment for the crime.  In my opinion, whether or not he "should be denied" the right as a parolee depends on the felony he committed. 

There are way too many felonies.  If he committed a felony that shouldn't really be a felony, some paper work mistake that people can get nailed for, I don't think he should be denied the right to bear arms.  If he abused the right to bear arms by committing a felony with an arm (I don't mean he happened to have it in his pocket, I mean he actually used it) then being denied the right to bear arms should continue to be part of the punishment.  And there's a whole range between those two cases where sometimes the answer would be yes and sometimes no. 

And that's my answer to the particular question:  Sometimes yes, sometimes no.

That leads to the question of whether or not a felon who has been released from punishment, not paroled but freed, "paid his debt to society", should be denied the right to bear arms. 

But first the question of whether or not a felon can  rightfully be denied the right to bear arms to begin with.  I would say that if we can  rightfully execute someone for a crime, thereby denying the right to life, or  rightfully imprison that someone, thereby denying the right to liberty or at least restricting it, then we can  rightfully deny that someone the  right to bear arms as a part of the punishment.  I would say that we can  rightfully continue that denial after release from prison only if we acknowledge it as a part of the punishment, which I'm not sure we do now. 

As to whether or not a freed from prison felon should be denied the right to bear arms as part of continuing punishment, my response is pretty much the same as it is for the parolee.   In short: sometimes yes, sometimes no.

 And if the answer is "no", maybe the felon should not have been freed from prison.