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 ...
When the founders themselves indicated in such straight forward and unambniguous language that said right, "shall not be infringed", they were making the statement and the case very clearly IMHO.
It seems clear that we can go on all day...back and forth. I will not be deterred or diverted by your language or logic...nor, apparently will you by mine. As I said before, the disagreement on this issue is fundamental.
Yet they weren't. To be clear, most of these rights were already protected under each state's constitution.
The fact remains, before the passage of the 14th amendment and subsequent incorporation decisions, the Bill of Rights only applied to the federal government.
We've all grown up in the post 'incorporation' world so I know that it seems like a very strange concept that state's could infringe on a person's freedom of speech or assembly but that's the way it was.
But, self defense with a Glock 19 is not an inalienable right.
Nontheless, citizens/residents/humans have inalienable rights. Sure there may not be explicit legal protection of them ... but that doesn't mean the states may trample those rights. There were arguments against having a BoR on the grounds that inalienable rights didn't need such blatant protection, that they should & would be protected anyway.
Hence the reason the BoR was required: justified fears that if rights were not enumerated, they would be trampled on with "well, we're not forbidden from doing so!" Would that the Founding Fathers were wise enough to require comparable explicit protection at the state level.
Just because a right is not explicitly protected at state level doesn't mean the right may be trampled.
A right infringed by forbidding tools reasonably needed to exercise that right is a right infringed.
By what right or power may a third party hinder my use of a Glock 19 for my inalienable right to self-defense?
Ah, so it is the Fourteenth Amendment that distinguishes between "natural" and "inalienable?" That's an interesting take. Very original, but not very useful since the Fourteenth Amendment doesn't really enumerate these "inalienable" rights, once again leaving the interpretation open to whoever has the guns to enforce it.
Let's take a more concrete example. I have a right to refuse any and all medical procedures on my body. Is that an inalienable right or a natural right? According to your (arbitrary) criteria, it appears to be a natural right and subject to the whims of democracy and/or oligarchy. And please don't bother trying to shoehorn this into one of your enumerated "inalienable" rights (like telling me my body is my property). That is also arbitrary since it allows anyone with sufficient capacity in rhetoric and argument (i.e. a lawyer) to redefine the criteria.
In any case, this is foolish. Your distinctions between classes of rights are straw men invented from whole cloth to support your collectivist argument against the blanket right to keep and bear arms and your convenience definitions of what constitutes arms. The inalienable nature of a right and any post facto requirement for due process of law to violate it has nothing to do with an assumed collectivist right to regulate it. The Bill of Rights is very clear that the government, most specifically the federal government, must not abridge its enumerated rights. Your personal incredulity that they would unequivocally disallow collectivist regulation of these rights is insufficient to negate the fact that they chose to do so.
Self defense in unalienable (unalienable is the word used by the founders and so, is the word I choose to use).
Therefore, it follows, that if self defense of your life, liberty, and property is an unalienable right, then in order to effect that defense you should not be restricted in your means of using the common defenses of the day in the defense of your life, liberty, and property. (Note I am talking about arm's use in the defense of those unalienable rights, not for other purposes).
If you do restrict an individual in the defense of their life, liberty, or property, to such an extent that the common arms of the day are not available to them, you not only infringe their unalienable right to self defense (since those they face who would infringe on or take away their rights are most likely to be so armed), you also are threatening and therefore violating those other unalienable rights by extension.
That is exactly what the founders asserted in the 2nd amendment, therefore, "the right of the people to keep and bear arms shall not be infringed".
Have all been regulated based on the concept that they inflict damage or cause imminent threat of damage. I've got no problem with making the brandishing of arms in a belligerent, non-defensive manner illegal.
Oh, and since when are our laws limited to regulating behavior that harms others?
When those laws conflict with Constitutional rights, such as speech, press, being secure in our homes, and bearing and keeping personal arms. That's why it is called the Supreme Law of the Land, because petty laws cannot override its provisions, and the rights cannot be taken without due process on a case by case basis.
It's considered a reasonable regulation.
How can you "reasonably regulate" things you are forbidden to infringe upon, in the absence of damage or credible threat thereof?
Because the legal concept of "prior restraint" doesn't apply to guns?
You mean it hasn't been applied yet, legally. The underlying concept certainly applies. Requiring Governmental permission to exercise the right to publish certain words is no different than requiring Governmental permission to exercise the right to own certain arms, which "shall not be infringed".
Check out comment# 177. ctdonath2, thank you!
Thank you very much. I shall save the HTML's URL promptly.
You're preaching to the choir. I have pointed out many times (too many) that the Bill of Rights is not an exhaustive list of rights retained by the People. It is usually in response to a social conservative writing "I checked my copy of the constitution and I don't see the right to (fill in the blank) anywhere."
Regardless, the point still stands that the states were only bound by their own constitution in regard to respecting individual liberties. It wasn't until the 14th amendment that this all changed.
And change it did, regardless of RP's wish it didn't, and despite SCOTUS' attempt to dictate which liberties (rights) it referred to.
Via the police power of a state. Again, assuming your state constitution allows it.
Maybe a well-organized Book Club. That might just work.
An American citizen who is of age, mentally stable, with a clean criminal background (no misdeameanors or felonies), clean driving records going back to 30 years, who partakes in community affairs and who is well educated will not get a permit unless other people say it is OK for him/her to get that permit. Iow, I, an American-born citizen, cannot get a permit solely because the constitution grants me that right - other people in the community - eg, friends, neighbors, co-workers, strangers, relatives etc - must also OK it.
IIRC, that's true only with respect to handguns, not longarms. Here's a link to NY State's pertinent laws, not NY City's, according to the NRA - ILA:
http://www.nraila.org/statelawpdfs/NYSL.pdf
It used to be in HTML. They switched to pdf format. I can't help that.
I asked you a question. Give me some examples of additional inalienable rights. Can you? If you cannot, just admit you were talking out of your a$$ and be done with it.
I certainly glad it changed too. The state of Georgia won't even let us buy alcohol on Sunday (our republican governor says it teaches us good time management skills) - imagine if Georgia was in control of our trial by jury rights or freedom of speech. /shiver
I do see where RP is coming from though as the act of applying the Bill of Rights to the states via the 14th does seem strained. A better approach would have been an amendment that specifically laid out that the liberties protected by the Bill of Rights (not limited to enumerated) also applied to the state and local governments.
The incorporation approach has been mostly positive but has allowed the SCOTUS to pick and choose.
I would also be in favor of an amendment to clarify the 2nd once and for all.
It is up to each state to decide.
If you would stop replying to this thread and finish reading the decision, you would finally find out how wrong you are. The decision goes into all the particulars regarding the Militia Acts, of which there were two, IIRC, according to the decision.
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