Yes, the Second Amendment Guarantees an Individual Right to Bear Arms

realclearpolitics.com ^ | March 20, 2007 | Pierre Atlas

[neverdem]

On March 9, the Circuit Court of Appeals for the District of Columbia issued a groundbreaking ruling. It declared in a 2-1 decision that the Washington, D.C. ban on handgun possession in private homes, in effect since 1976, is unconstitutional. The court reached this conclusion after stating unequivocally that the Second Amendment's right to keep and bear arms applies to individuals and not just "the militia."

It is quite likely that this ruling will be appealed to Supreme Court, which hasn't offered an interpretation of the Second Amendment since 1939.

Appalled by the District Court ruling, the Washington Post editorialized that it will "give a new and dangerous meaning to the Second Amendment" that, if applied nationally, could imperil "every gun control law on the books."

The Post accused the National Rifle Association and the Bush administration's Justice Department of trying "to broadly reinterpret the Constitution so as to give individuals Second Amendment rights."

But actually, to argue that the Second Amendment does not apply to individuals is a reinterpretation of the Constitution and the original intent of the founders.

One of the major concerns of the anti-Federalists during the debate over the Constitution in 1787 was the fact that the new document lacked a Bill of Rights. In order to get the Constitution ratified, the framers promised to pass a Bill of Rights during the First Congress as amendments to the Constitution. The Second Amendment with its right to keep and bear arms became part of that package.

What was the original intent of the Second Amendment? Was the right to bear arms a collective right for militias, or an individual right for all citizens? The "Dissent of the Pennsylvania Minority," from the debates of 1787, is telling. This document speaks...

[ctdonath2]

The correct answer to that oft-abused question: your right to swing your fist ends at my nose.

The RKBA exists, if you look at it a little differently, to disarm those who abuse their RKBA. Persons A and B have a right to arms, but if B threatens A, A can respond by using his to disarm B (heck, that's why A is carrying). When you get to large-scale arms, it's still the same issue - just the threat covers more people at greater distances. Howitzers can still be owned and used safely (and are indeed legal! just a little paperwork, $200 tax, and the problem of actually finding one for sale); nukes, however, require extraordinary care as it is "pointing" at everyone within a few mile range.

Ergo, you can own anything - as the Founding Fathers intended. Just be aware that should reasonable people conclude there is a viable threat, they can use _their_ arms to disarm you until the threat is reasonably extinguished.

Pre-emptive blind banning is not permitted.

[ctdonath2]

every lower federal circuit court in every lower federal circuit court

And now, for the second time, a high court has told the lower courts they're seriously misguided.

BTW: a state high court (NJ) also ruled the same thing yesterday.

Just because a sequence of precident leads lower courts to a way to not say something they don't want to say doesn't make it right. There is plenty of history of courts going one way, then dramatically changing course wholesale. Sometimes wrong conclusions just don't hold up forever.

[ctdonath2]

Because that right is being infringed.
Lawmakers don't like an armed populace.

[ctdonath2]

You contradicted yourself.

The Militia Act of 1792 was a FEDERAL law REQUIRING militia participants be armed (and have quick access thereto). That overrode whatever limitations the states wanted, if any.

[ctdonath2]

Just because they prohibit 'em doesn't mean the prohibition is legal. NJ just declared (to wit: recognized) residents have a 2nd Amendment right which the state cannot infringe.

[ctdonath2]

You'd have readers of your post believe that the 2nd amendment was necessary to ensure that men going into battle (the militia) would have guns because without the second amendment they would have gone into battle without guns.

Pretty close. He believes that the 2nd Amendment ensures the right of citizens to participate in a gov't-run militia, according to the gov't's rules, which may be unlimited - including identifiying who can bear what particular arms, and where they may be kept. Yes, he actually believes that, and has admitted as such. There really isn't much point arguing it as he shows no interest in modifying his position.

[ctdonath2]

You sure? ;-)

[ctdonath2]

Gun laws passed by Congress are done so under the power of the Commerce Clause

In plain violation of that "...shall not be infringed" bit.

[Hazcat]

Here is a sentence with the exact same structure.

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

And here is the rebuttal to your expected "no it isn't" reply as well as an explanation of why it IS an individual right.

http://www.largo.org/literary.html

I'm done reading your posts as they bring nothing to the discussion.

[ctdonath2]

Then stop posting and finish reading. If you haven't read the decision (you've posted nothing indicating you have read it, and a lot indicating you haven't), then stop telling everyone how they're wrong about it. The decision systematically shreds your arguments.

[Betty Jane]

And I told you it was not the same structure and I told you why. Therefore, I will not answer it. Re-phrase it to comply with the same structure and you won't need to ask my opinion -- it will be obvious. Which, I'm sure, is why you refuse to do so.

A well-regulated militia being necessary to the secutity of a free state, the right of the people to keep and bear arms shall not be infringed.

A well-educated citizenry being necessary to the advancement of a modern society, the right of the people to keep and read books shall not be infringed

My sentence structure exactly matches the sentence structure of the second ammendment.

So please answer my question. In my rewording of the second ammendment, who can read and keep books? Please do not go off on tangents about regulating book buying and well stocked libraries. In your understanding of the English language, who can read books in the above sentence?

[ctdonath2]

Then how does SCOTUS "incorporate rights to the states" via the 14th?

[ctdonath2]

Methinks SCOTUS, in Miller, realized the weight of the case before them - but since Miller didn't show up, they could not fairly or accurately render a final verdict, so they found some sorta relevant nuance to hang the case on, and remanded it back to the lower court just to make it go away without making a real decision.

[Betty Jane]

Thanks for the back up hazcat. Your link was very informative.

[ctdonath2]

The courts would not conclude that one cannot store or carry a book outside of a library, or for non-academic purposes. The DC court recognizes in their verdict that, translating to books, the best way to develop libraries to advance the modern state is to let people own any book and do so outside libraries. By your reasoning, the courts could conclude that novels could be banned outright, and I could be arrested because there's a Bible in my briefcase as it is not in a library.

[Jeff Head]

rp, you wrote...

The Supremacy Clause says the U.S. Constitution is the law of the land. It does not say that everything in the U.S. Constitution applies to the states. That would be silly, given that parts of the constitution apply to the states and parts to the federal government.

Let's read it again. I believe that that clause itself speaks directly to, and refutes, your contention.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding

So, the Constitution is the supreme law of the land, and IMHO, it can be read no other way. But the Constitution is not the total law. Anything NOT in the Constitution is left to the states or the people. Having said that, it is clear that the 2nd Amendment is in the US Constitution, therefore, as it says, it is the supreme law of the land.

Clearly stated, the Supremacy Clause states as regards the 2nd amendment, that the 2nd amendment is the supreme law of the land, any laws or constitutions of any state that say anything to the contrary notwithstanding.

From my perspective, that plain definition/understanding is obvious, IMHO, to anyone who reads it. As obvious as the meanig of the 2nd amendment is itself to anyone who reads it as the judges recognized.

Unfortunately, in our day, common sense and clear reading are not a given anymore, and for a multiitude of reasons, from ideology, to pure power, to ignorance, to misinterpretation, to an out and out intent to water down and destroy the constitutiojnmal integrity of our Republic, unconstitutinal laws, acts, and edicts are passed all the time in our society under the color of law, when their constituional veracity is not worth the paper they are written on.

[ctdonath2]

The NRA was working the Seegars case at the time, a similar case in the same jurisdiction. That case was running into trouble, and Parker was doing well. In an odd combination of wanting to join the winning case, and being scared that the better case would implode and cause huge problems (i.e.: SCOTUS rules against individual RKBA), they simultaniously wanted to join the cases to improve their own case's chances, and to derail the case if it started heading in the wrong direction.

The guy behind Parker knew he had a good case, and was funding & running it himself, and didn't want anyone else screwing it up.

In the end, Seegars failed, and Parker very nearly did (only plaintiff Heller maintained standing thru the latest verdict).

[zeugma]

 This is an extremely well written decision.

 I converted the PDF to HTML to make for easier reading HERE.

 

[ctdonath2]

New York State quotes the 2nd Amendment practically verbatum in its Civil Rights Law.

I asked a high NY state judge what the legal impact of that was. She had no clue.

[ctdonath2]

SCOTUS avoided many cases because they had other factors which unduly detracted from the RKBA angle. SCOTUS wants a pure RKBA case; nobody has given them one yet.