COURT RULING PROTECTS 2nd AMENDMENT

boblonsberry.com ^ | 03/12/07 | Bob Lonsberry

[shortstop]

On Friday, a judge said what I have always believed, that the Second Amendment is an individual right.

It is the most significant civil rights ruling of my lifetime.

And it sets up an eventual Supreme Court fight in which the stakes will be the integrity of the Bill of Rights.

It has to do with the District of Columbia's gun ban. For 30 years the nation's most disarmed city has been the nation's most dangerous city, and a community which has complained of its cheated right of congressional representation has been entirely silent about its cheated right of firearms ownership.

Until now.

Six people, champions of liberty, challenged the gun ban in court. They lost in front of the district judge but appealed to the circuit court and Friday a three-judge panel came back with a landmark decision.

The judges decided that “the people” means the people and “the state” means the state. And that the Second Amendment, though archaically written, is neither incomprehensibly cast nor functionally outdated. Rather, it is – like its brother amendments – still and undeviatingly a bulwark of individual liberty.

The Constitution is the supreme law of the land, the code and compact of our Republic, and amid the confusion and intrigue of a modern and partisan day, it still holds.

And it continues to inform and mandate our understanding of and allegiance to liberty.

For years, those who would limit freedom have argued that the Second Amendment – with its guarantee of a right to keep and bear arms – is not directed at protecting the liberty of individuals, but of safeguarding an interest of the state. Its reference on one side of a couple of commas to “militia” has been argued as a trump to its reference on the other side of those commas to “the people.”

For years, those who would limit freedom have argued that the Second Amendment, completely unlike the amendments on either side of it, and contrary to the arguments of those who demanded a Bill of Rights, protected government, instead of protecting people from government. They have said that it establishes a state's right to have an army, a National Guard.

That view is wrong.

That is declared as a claim of liberty and is substantiated by the ruling in this case.

The Second Amendment – like the rest of the Bill of Rights – is meant to limit the power of government. It is meant to fence off areas of personal choice wherein the power of government is to play no part.

The fact that some argue against the Second Amendment as a protection of an individual right is reminiscent of those who sought to deny the similar application of the Fourteenth Amendment to the individual rights of African Americans. And just as the civil rights movement of the 1950s and 1960s insisted on a liberty-based application of the Constitution, so too does the Second Amendment community today insist on a liberty-based application of that founding document.

This case is a milestone, but it is not a finish line.

This fight will not be won until the Supreme Court finds as the district circuit found. This case will hopefully provide the opportunity for such a finding to be delivered. Hopefully the Supreme Court will rule with reason and intelligence, as opposed to partisanship and division.

But the war is on, and an important battle has been won. These are historic times and the integrity of the Bill of Rights hangs in the balance.

If the Second Amendment stands, the Constitution stands. If the Second Amendment can be nullified, the Constitution is imperiled.

The eventual outcome is uncertain, but Friday's message is clear – there are judges who still honor the Constitution, and sometimes the right thing is done.

[shortstop]

I must have missed this in the St. Petersburg Times over the weekend. /s

[sgtbono2002]

The District does not want the individual to be allowed to protect themselves from the criminal element.

Gun control there has not worked. The only thing it has done is lend itself to a safer environment for the burglar,the armed robber, the drug dealer.

[mvpel]

If the Second Amendment can be nullified, the Constitution is imperiled.

Correction - the Constitution is a dead letter if the Second Amendment can be nullified, and the Federal Government will have lost the last shred of legitimacy it had.

[Carry_Okie]

Equally important in the ruling to the finding that armed self-defense is an individual right is the flat statement that the Second Amendment was merely acknowledging a pre-existing right. It acknowledges in law that armed self-defense is an unalienable right, something that government can only uphold or violate.

I was blown away that a judge actually read the law and articulated what it plainly says. I didn't think it possible that we would ever get such a ruling. We'll see if Breyer can find some bizarre international law with which he can crap on it. We'll also see if Rudy's hero, Ruth Bader Ginsburg, is really the smart lawyer with integrity he says she is. /s

[AU72]

the Constitution is a dead letter if the Second Amendment can be nullified

It will pave the way for the 1st Amendment to be gutted by 'speech codes' giving certain groups more rights than others.

[scooter2]

It will pave the way for the 1st Amendment to be gutted by 'speech codes' giving certain groups more rights than others.

It will pave the way for an armed revolt by the citizens of this country who DO "keep and bear arms".

[Dead Corpse]

You can bet there is a bevy of legal assistants coursing through the case law looking for a way to wrangle a "compromise" in which the government can continue exerting power it has no authority to be using.

Let's get it done. One way or the other. Before I'm too old to fight if the bread lands jam side down...

Molon labe...

[mvpel]

I haven't yet read the dissent, because I was so pissed off by the smarminess of it in the first two paragraphs I couldn't continue. Maybe later I'll have a shot of my nice Russian vodka, put on some soft music, and light some nice calming vanilla candles, and try again.

[stevie_d_64]

I have told a few people that you should be very careful what you wish for in regards to this issue...

The Supreme Court is not a lock in our favor...

I have done my best to respect the terminology used when people argue that this is an "individual right"...

If the Supreme Court rules or gives an opinion that it is a "fundamantal right" it'll all be over at that point...

What needs to be ingrained in the membrane with everyone who desirtes to truely champion the "individual right" is to go back and see how it is "really" enumerated in the Constitution and other supporting documentation etc etc...

The right to keep and bear arms is an "inalienable right" endowed by our creator...(Remember this, it is more important that an "individual right"...

It is a moral right to preserve the gift given to you by the creator...

You take that to any debate, and you will truely understand why the liberals, socialists and athiest are so empowered to remove all forms of morality, theology and other religious meanings to the core beliefs on which this country was founded...

They will keep the First Amendment around till it doesn't suit them to do so...

Knock off the effective means to protect individual rights, and the rest will topple...Very easily...

This is a phrase a friend of mine uses to describe the situation, he's a FReeper, and deserves credit for this next one...

"The Second Amendment IS the reset button for the Constitution."

If it were up to me, I kinda like the way the Constitution is right now...I think its ok to base all decisions and policies according to what was written and ratified over 200 years ago...

"Living document" my arse! Its the governing document!

[jwparkerjr]

Every article I read about this ruling mixes in the information that the ban hasn't done anything to control the murder rate in DC. It's interesting, but totally irrelevant. Even if the ban reduced the murder rate to zero it would still be unconstitutional! It's not a question of whether armed citizens are safer, it's a right guaranteed to us by the constitution.

[steamroller]

it's all on Kennedy's shoulders-forget breyer,ginsburg,souter,and stevens-those turds want to disarm us so we will be totally under the thumb of international socialism and one world government-if they do prevail,i hope they will enjoy the results when there is an attempt to confiscate firearms-our founding fathers had an answer for that

[Carry_Okie]

If it were up to me, I kinda like the way the Constitution is right now...

This is a bit off topic, but I don't. There are several provisions as regards treaty law I would like changed or clarified:

1. No treaty may be ratified that commits the United States to act beyond the enumerated powers in this Constitution.

2. No binding agreement may be concluded with any other nation without full ratification by 2/3 of the Senate (NAFTA, WTO ,etc.).

3. I would change Article II, Section 1, from

   "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

   to

   'He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the full Senate concurs;'

   This ratification by voice vote in the dark of night with no quorum bull$hit has to end.

4. All treaties ratified under this Constitution are now void until they are reconsidered under the provisions above.

   That includes the UN Charter.

5. The United States may only conclude a treaty with the government of one nation.

   No more multilateral "treaties," whose effective commitments change after ratification when other nations take exceptions. This would hose the treaties currently held at the UN.

6. Any treaty to which exception is taken after its ratification is void (ala the Panama Canal Treaty).

   Etc.

My point is that the Constitution has its flaws, it's not sacred, and we should be working to get those flaws fixed.

[DownInFlames]

The 1st and 2nd Amendments are the whole reason for the 1st Revolution. The 2nd Amendment allows the individual to protect himself/herself from a tyrannical Government, domestic and foreign enemies of the state, and from personal harm.

The 1st Amendment guarantees our right to freeom of speech, religion, redress grievances, free press (Internet included), and peaceably assemble.

The 2nd Amendment is known as the reset button for the Constitution.

[stevie_d_64]

I believe that is some good stuff there...

I'd forward that up to yer congress-critter and see what kinda stones they have...

I would support the effort...I really would...

I'm not as yet too worried about any treaties that would allow a foriegn agreement under that treaty that would unilaterally disarm us...

I think they really know that they'd have a real problem on their hands whether it comes from a domestic or foriegn threat to our "inalienable right" here to keep and bear arms...

Our side of the argument would have a very basic but sophisticated, and focused response if it ever did come to that...

I do not think they have the guts to press it at this time...

They'll still continue to peck away at it, and the give and take will continue for a long time hopefully...Thats the beauty of the system...

Yes there are risks and threats to our "inalienable right(s)"...

The ironic part is that we still have the guns...And they just can't stand that fact...

[Carry_Okie]

I'm not as yet too worried about any treaties that would allow a foriegn agreement under that treaty that would unilaterally disarm us...

Be afraid...

They're afraid

[stevie_d_64]

I'm not too worried because I believe we all know what the counter to this is...

Good illustrations!!! ;-)

[Celtman]

Good points.  Not really off topic, since I expect attempts to bypass the 2nd through treaties.  It died in committee, but the American Sovereignty Restoration Act of 2005 would have been a good step.

[Atlas Sneezed]

Assuming this ruling is upheld by the SC, and become nationwide precedent (and its logic and restraint make that seem likely) this could be a profound tool to repeal the most egregious of all Second Amendment infringements: The 1986 Volkmer McClure Act (aka Firearm Owners Protection Act).

This is the "Machine Gun Ban" that makes it illegal for people to buy or possess or make a machine gun unless it was one of the limited number that were made and specially registered before 1986.

Since there is only about 1 machine gun per 1000 adult male citizens, these are extremely scarce. Thus, a gun that would retail for under $1000 (an AR-15) costs about $15,000 today if it is one of the rare transferable ones (and costs no more to make.)

Moreover, such guns are usually not made by the manufacturer as machine guns, but they had jury-rigged modifications (legal at the time, if registered) that are inferior in durability to standard machine gun designs.

The Parker vs. District of Columbia ruling handed down by the Court of Appeals for the DC Circuit is a very narrow, restrained, well-written decision that limits its holding only to whether a class of guns can be banned.

The holding makes it clear that even if people have the right to own many other types of arms (such as long guns), banning one type is still unconstitutional. They ruled that allowing such a ban of handguns would be tantamount to allowing a ban on all firearms, because swords could still be own, giving the right to bear at least one type of "arms."

This and other elements of the opinion (including those reinforcing the US vs. Miller Supreme Court ruling that turned on whether guns were militarily useful) strongly suggest that the 1986 ban on all modern automatic guns designed and made in the last 20 years is unconstitutional. If allowed to stand, it will ripen into an effective ban on all military arms except for antiques.

If as the opinion suggest, the 2nd amendment was intended to ensure a well-armed citizenry as a bulwark against a standing army, then the 1986 Act clearly infringes the 2nd Amendment.

Note that the Parker opinion would not serve to oppose the National Firearms Acts of 1934, so even is the 1986 Act were overturned (at least those unconstitutional portions), citizens would still be faced with a $200 transfer tax, fingerprints, photos, background checks, and the permission of their local Police Chief to be able to buy such arms. They would be like silencers and Short barreled rifles, which may be made and sold to qualified buyers, and which are relatively inexpensive based on market forces, not extraordinary scarcity.

Moreover, overturning the 1986 machine gun ban would not be a publicly alarming result, because of the strict procedures associated with sales of such arms. Little would change, except that citizens could arm themselves as they saw fit, and a few machine gun collectors might lose much of their gains.

But even a gun enthusiast who lost tens of thousands of dollars in a small machine gun collection would welcome the chance to buy much more at MUCH lower prices. Those who are hoarding hundreds of "autosears" in order to prop up prices would lose hundreds of thousands of dollars, but few in any quarter would cry for them.

[oh8eleven]

I must have missed this in the St. Petersburg Times over the weekend. /s
Bob's local paper (and mine) had this story on page three, while page one (above the fold) we were warned Winter sliding can be dangerous for unwary.

[William Tell]

Beelzebubba said: "The Parker vs. District of Columbia ruling handed down by the Court of Appeals for the DC Circuit is a very narrow, restrained, well-written decision that limits its holding only to whether a class of guns can be banned."

I think that this reading of the decision is the only thing that is keeping the Brady Bunch from drinking their poison-laced kool-aid.

The Parker decision has established that the Second Amendment is an individual right to keep AND bear arms.

Given that the Second Amendment protects an individual right, then the placement of that amendment in the Bill of Rights assures one that the right is of fundamental importance.

The courts have established rules for dealing with matters of fundamental individual rights. I believe that this includes the concept of "strict scrutiny". The benefit of this treatment is that the burden of proof shifts to the government to establish that infringements, if any are to be tolerated at all, must be of such a character that they impair the exercise of the freedom protected as little as possible.

As an example, "instant check" might indeed become instant. The burden of retrieving a firearm sold to somebody whose background cannot immediately be determined, would shift to the government. The FBI might have to seek out the criminal and confiscate the firearm.

Maintenance of records of gun purchases by the law-abiding would be entitled to privacy protections that do not exist today. The presumption that the government is justified in being able to trace every gun would have to be viewed in a different light. Warrants would be required to access records, and the records might not even be permitted if the success in containing crime cannot be proved (which I believe it cannot be).

Incorporation of the Second Amendment against the states coupled with "strict scrutiny" of infringements would eliminate practically all gun control. That would be a "good thing".