Posted on 03/20/2007 4:04:15 PM PDT by 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...
(Excerpt) Read more at realclearpolitics.com ...
Given the prefatory clause of the second amendment (which is missing from the first amendment, thereby making a comparison between the two amendments ludicrous), "the people" in the second amendment is an individual right applied collectively.
According to the gun grabbing courts.
Why isn't concealed carry legal in every state if the second amendment protects that right?
That is a really good point.
If you read Alexander Hamilton's writing in the Federalist (compiled by me and posted on this FR topic) on his interpretation of the militia and the people and the right to bear arms, you see that he envisioned the militia as something that might meet once or twice a year, and only for the purpose of regulating (minimal training to act as a unit).
Therefore, I'm saying that the original intent of "well regulated" was to have minimal training to act as a unit, and "militia" was the population-at-large. It's a stretch to say that it's a collective right applied individually when the collective would only meet once or twice a year, and the people "keep" their own arms instead of them being stored in some collective armory only to be gotten and used when the militia is called out.
-PJ
It seems that many if not most state's constitutions go into much more detail as to the "individual" right to keep and bear arms. So with that in mind then how can the Federal Government be MORE restrictive if the 2nd Ammendment to the Constitution is to express the STATE right to individual arms? It would seem any firearms laws passed by congress EVER would then be unconstitutional?
The SCOTUS has reversed itself before. I believe that error will be corrected, at the very least the 30 days prior to a primary election and the 60 days prior to a general election restrictions. Have you read the D.C. Circuit Court's decision?
Not according to the 14th Amendment.
barbra ann
"Is the right to bear arms a collective right or an individual right? The answer, according to this document and the writings of others at the time of the founding, is both. "
A point I have tried to make here a few times.
And, as Judge Silberman said in the DC decision, if people as smart as Madison and Adams wanted this to be only for militias, they would have said just that, and NOT added "...the right of the people to keep and bear arms shall not be infringed." End of story, we keep our guns.
"Therefore, I'm saying that the original intent of "well regulated" was to have minimal training to act as a unit, and "militia" was the population-at-large."
Well, according to the Militia Act of 1792, "militia" was "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years".
As far as an individual right to keep and bear arms, that was (and still is) up to each state. If a state wishes for arms to be kept at home, fine. If they want the arms kept in an armory, fine also. If a state wishes to limit its citizen's access to arms, that's up to them (assuming the state constitution allows it).
The current definition of "militia" is in Title 10, Section 311, and includes all males older than 17 and younger than 45, women who are in the National Guard (aka "organized militia" and persons who have prior military service to age 65.
I submit that the current definition is an unconstitutional limitation on the rights of women and older people, as the 14th Amendment gives to all citizens rights that can not be removed by the states, and to all persons (not just citizens or National Guard members) protection of due process of law. Prior restraint (condemnation before committing a crime) upon keeping and bearing arms is, to my mind, a violation of due process.
How does that contrast with the 2nd amendment phrase "the right of the people to keep" arms?
If "people" doesn't mean individual people, but a collective militia, does "keep" not really mean keep at home with the person? I get worried when I'm told that the plain language doesn't mean what it plainly says.
I interpret the right of the people to keep arms to mean that individual people have the right to own (and keep) arms with themselves. I do not interpret it to mean that they must be locked away in an armory only to be gotten by somebody else' permission. That doesn't sound like "keeping" to me.
-PJ
Given the prefatory clause of the second amendment (which is missing from the first amendment, thereby making a comparison between the two amendments ludicrous), "the people" in the second amendment is an individual right applied collectively.
LOL!! Your double-think is fooling only you. The first amendment has a prefatory (2: located in front) of "the people". Your argument is sooo lame, and completely irrelevant.
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.
Why isn't concealed carry legal in every state if the second amendment protects that right?
Because, just like you, many politicians and bureaucrats disregard the original meaning of the constitution. In violation of the 2nd amendment they made it illegal to conceal carry. Your question presupposes that State and federal politicians and bureaucrats wouldn't and don't violate individual rights and create unconstitutional laws.
The fourteenth amendment was for the most part specifically to allow blacks to keep and bear arms to protect themselves, in self-defense. From the article:
"The statement of February 28, 1866 by Nevada Senator James Nye was fairly typical: "As citizens of the United States they [black persons] have equal right to protection, and to keep and bear arms for self-defense.""
"The understanding that the Second Amendment applied to individual citizens was reiterated during the 1866 Congressional debates over the Freedmen's Bureau Bill and the proposed Fourteenth Amendment.
"The Radical Republicans wanted to apply all the Bill of Rights protections to the recently freed former slaves in the South, America's newest citizens. The "freedmen," as they were called, needed the right to bear arms in particular in order to defend themselves against the white night-riders who were terrorizing the black population.
"The statement of February 28, 1866 by Nevada Senator James Nye was fairly typical: "As citizens of the United States they have equal right to protection, and to keep and bear arms for self-defense.""
Sounds good to me.
"right of the people and "shall not be infringed" is pretty strong language, with very little wiggle room for any sort of "gun control" that applies to otherwise law abiding peaceable citizens.
All it would take is for the Supreme Court to hear and uphold this decision, and federal gun control, other than that which affects convicted felons and such, is gone, including the National Firearms Act. One more ruling, on a state level gun control law, declaring that the second is "incorporated" against state and local infringement as well (being fundamental to ordered liberty), and poof, state and local gun control is also gone the way of the passenger pigeon.
Of course all that should have occurred in beginning in 1939 or so.
My homeowners association would probably never let me have a howitzer unless I kept it inside my garage.
The militia is not the military, any more than the posse is the sheriff or police. Both are US, that is "the people".
Very good point - the thought that you would have to file papers an pay to carry a weapon would cause old Tom to turn in his grave.
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