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...

[Just sayin]

Interpeting the Constitutionality of a law does not involve changing the words written as law RP. Sure, they can say a law is or is not constitutional, but they cannot change the law itself by changing the words within it.

Changing it's meaning by directly changing it's wording is for the Congress to do and not for the Courts to do.....it matters not how many do it RP it is still wrong to do.

You are supporting legislating from the bench RP. Care to just admit it?

[tpaine]

Incredible. -- It's being claimed that while our inalienable rights to life, liberty, or property may not be regulated without individual due process, -- that all our other 'natural rights' may be reasonably regulated without due process of law?

Actually it sounds pretty arbitrary to me. The founders enumerated certain "inalienable" rights in the Declaration of Independence. They never intended it to be an exhaustive list and they never offered any indication that there were "inferior" rights. You are attempting to draw some distinction between an inalienable right and a natural right and then claiming the ability to regulate the latter.
However, you offer no objective criteria for the distinction. This leaves the whole matter up for subjective definition by whoever happens to hold the reigns of power.
The founders called that tyranny.

Well put Steve. -- The socialistic/communitarian 'idea' that majority rule decisions can decide which of our natural rights can be 'reasonably regulated' without due process? -- has no constitutional foundation whatsoever; -- its simply been dreamed up to justify the infringements that exist.

This is precisely why they enumerated rights and why they did not distinguish between greater and lesser rights. I would offer that the founding principle of this constitutional republic is that the "commune" may not regulate individuals' rights and that there is no such fine distinction as you offer, arbitrary as it is.

Arbitrary and baseless redefinitions of language and context are the lawyer's primary tools of the trade.

Don't forget the propagandist. That 'trade' is alive & well on FR.

[tpaine]

[Speech can be regulated] -- only when it damages, or bears the immediate possibility of damaging another individual.
Thus libel, defamation, perjury, fraudulent statements and the infamous false cry of "fire" meet that test.

Don't you know that our laws are not limited to regulating behavior that harms others? According to socialists, the 'community' can put restrictions on most anyone for any 'good' reason, as long as our security is protected.

How does carrying or owning an "assault weapon" or "Saturday night special" meet this test? How are they not all protected from regulation by prior restraint?

Socialists see such restrictions as "reasonable regulations". -- And just as a guess, I'd bet the concept of "prior restraint" just doesn't apply to carrying arms, as guns are seen as dangerous, - & need restraints. -- Businesses have been banning them from parking lots using this ersatz line of reasoning.

[zeugma]

Could you show me how to make PDF to HTML conversions, or where to find out?

Well, it can be somewhat simple if you're running Linux. There is a program called pdftohtml that will perform an automatic conversion for you. On the the particular file in question though, I really didn't like the output at all, so I used  pdftotext to convert it to ascii, then I did the markup manually. Took me about six hours to do the decision I linked. I'm not sure if there are any dos/windows equivalents, but I'd be somewhat suprised if not.

If you can burn a DVD or CD, you can download Knoppix or one of the other live Linux operating systems, just about all distributions come with both pdftotext and pdftoascii. You could boot off of Knoppix and do the conversion, then copy the file to a usb drive or something.

If you have something that is fairly simple, you could freepmail me and I'll try to help.

[B4Ranch]

>self defense with a Glock 19 is not an inalienable right.<

Would that change if my attacker was carrying a Glock 19? Shouldn't I be permitted to use the same weapon as my attacker?

[NCSteve]

The term "people" of the Second Amendment refers to all free persons. It does not refer to unemancipated minors (subject to the will of their parents), nor convicts, parolees, or the criminally insane (all slaves of the state).

Agreed. It wasn't my example. I was responding with the Socratic method. robertpaulson declined to engage me on it.

[robertpaulsen]

That's up to your state.

[robertpaulsen]

Hey, look who's back, ignoring the courtesy of a ping.

Got that long list of inalienable rights for me?

[B4Ranch]

Maybe we should restrict the 2nd Amendment to men only. It sure would help keep those women in line better if they didn't have such easy access to 12 guage shotguns!

[neverdem]

robertpaulsen, you're still wearing out your keyboard for no good reason, and it appears, you haven't finished reading the decision, which quoted the Militia Acts extensively. Here's an excerpt, but you should read the whole thing. IIRC, the last version hasn't been repealed.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That 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 (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Here's a bonus BANG! folks, but I think it wouldn't be a bad thing if the Militia Act should be updated to reflect increased life span and other modern realities. I'm not sure if it's been updated since the National Defense Act of 1916. Here's the latest definition of militia that I could find:

Section 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are - (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[microgood]

If we look at, say, the forty-odd lower federal circuit court gun cases, we're looking at 38 saying a collective right and 2 saying an individual right. 9 circuit courts citing a collective right, 2 circuit courts citing an individual right.

That is sad that most judges cannot read basic English. If you look at the 2nd Amendment, the second part is an independent clause (because it makes sense by itself and can stand alone by itself) which means it is not in anyway dependent on the first half of the sentence. The first part of the sentence is a dependent clause.

I guess these judges are a product of the public school system, but you think they would know basic grammar.

[tpaine]

Political Junkie Too:

I'm still not following why the Article VI supremacy clause doesn't already do this.

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JeffAtlanta:

Because the Bill of Rights are restrictions on the federal government only. The supremacy clause only means that federal statutes are superior to state ones - it does not mean that restrictions placed on the federal government are also automatically placed on state governments.
292


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LexBaird:

{The supremacy clause] -- also means that the Constitution is supreme over both. The BoR details some rights reserved directly by the people, and, in the 10th, forbids power over such rights to the States.

Only in the 1st is the limit placed solely on the Congress, and the 7th on US courts, with the rest just stating certain reserved rights without reference to delegating power to regulate them to the States.


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Well put fellas; -- but of course the 'state rights' crowd will continue to deny the fact that the power to ignore the Constitution is "-- prohibited by it to the States --"

[robertpaulsen]

White males, between the ages of 17 and 45, enrolled in the Militia, and given notice to serve, had six months to come up with suitable "arms".

Minutemen they weren't.

[bvw]

I hold that the Bill of Rights was more than just a restriction on Federal Powers under the Constitution, it was also a declaration of what the States agreed to uphold in joining to the Union.

It was a declaration of a minimal set of rights that both State and Federal governments must uphold.

[robertpaulsen]

Yep. Sad state of affairs.

Gosh, let's hope the U.S. Supreme Court knows good grammer. I mean, if they're no better than the 40-odd lower federal circuit court rulings, then we are in deep doo-doo, huh?

[robertpaulsen]

"You are supporting legislating from the bench RP. Care to just admit it?"

I will if you would simply point out the legislation the court wrote.

"Sure, they can say a law is or is not constitutional, but they cannot change the law itself by changing the words within it."

Change the words? They interpreted the words, which it what courts do.

[neverdem]

Took me about six hours to do the decision I linked.

I'm in your debt. Thank you.

I'm not sure if there are any dos/windows equivalents, but I'd be somewhat suprised if not.

I'll try to remember that.

If you have something that is fairly simple, you could freepmail me and I'll try to help.

Thanks for the offer. I'll save your name next to that link. I'm a hard science and medicine junkie. If you have a question, except about computers, maybe I can return the favor.

[NCSteve]

Got that long list of inalienable rights for me?

You're not very good at this debate thing, are you?

You held forth like some kind of constitutional scholar, I called you on it. Defend your argument or go away, it's all the same to me. Under the standard rules of discourse, I am under no obligation to answer your questions until you have substantively replied to my rebuttal. Your tactical degradation into taunts and belligerence are no substitute for a reasoned reply.

[robertpaulsen]

You asked. I answered. Twice, if I recall. The fact that you didn't agree with my answer doesn't give you some inalienable right to keep asking the same question until I answer it the way you want.

Speaking of inalienable, you got that list?

[dcwusmc]

"Prior to this ruling, every lower federal circuit court in every lower federal circuit court case (save one) has ruled a "collective" right -- ie., an individual RKBA as part of a state Militia. The second amendment was to protect the ability of the states to form state Militias from federal interference."

WRONG ANSWER, bobby. VERY wrong answer. First, the same word, "PEOPLE," used in the other parts of the BoR, MEANS THE SAME THING, that is, INDIVIDUAL AMERICANS, PERIOD. You know it but you're a weasel. Second, the BoR, like the rest of the Constitution, grants NOTHING. It orders government to RESPECT AND PROTECT PREEXISTING RIGHTS and makes no mention in the Second or any other but first and third as to who may not infringe. Thus, the States are not excluded from the requirement not to infringe. Third, as with ANY RIGHT (even the ones you admit exist but, so YOU say, are not protected by society), they are NOT subject to a vote by ANYONE, EVER, for any reason. If a RIGHT exists, it is automatically protected by our Constitution and BoR and may not be voted on or legislated out of existence. The ONLY regulation of any RIGHT is as to where and how it may be exercised IN PUBLIC PLACES. And that only by States and localities, NEVER FedGov.