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 ...
Sure they are not useful against burglars, or even muggers. But what about rioters? But of course the Second Amendment is not (solely) about *personal* self defense. It's about defense against tyranny. HE bombs, deep penetrating variety especially, could be quite useful against tyrants. TOW missiles work well too., as Saddam's sons found out.
Besides, what if I just want to set them off on my in law's 200 acre farm? That wouldn't hurt anyone, innocent or not.
We have to stop trying to prevent people from doing bad things by banning inanimate objects, and start working on bad people. Criminals and terrorists don't obey gun or other arms control laws, they only affect the law abiding.
Yes it was, because Taney went beyond the question before the court, and used judicial activism to strike down the constitutionally defined power of the Federal Government to make laws in the territories regarding slavery.
No. The "people at large" is the affected group (or the enfranchised group). Depending on what you're talking about, the "people at large" changes.
For example, "The people have the right to vote". Does that mean all individuals? No. The "people at large" who had the right to vote in 1789 excluded women, slaves, non-property owners, children, etc.
That particular group of people, that collective "people at large", has the individual right to vote.
Well, thank you.
So, we're talking about the Bill of Rights, and specifically the People in the 2nd amendment. The question is collective rights vs. individual rights, and whether the phrase "the people" refers to people-at-large (citizens or just militia?) or individuals.
Are you using one definition of "people" when talking about the Bill of Rights in total, a different definition in amendments 1,4,5, 9, and 10, and a third definition for amendment 2?
-PJ
If it didn't matter, then there would be no need to distinguish between the two.
ROTFLOL I always knew there was something maddeningly artificial about him. Each line of logic is carried forward in relentless disregard to its own disintegration and then, in fairly regular rhythm, a new line is suddenly taken up like a carriage shift on a typewriter.
You, as an individual, are not empowered by the Constitution to declare war on tyrants; that is a power reserved to Congress by We the People. They also hold the power to authorize individual acts of war, via letters of marque. Should the tyrants be members of the existing government, well then gun laws and the Constitution are moot at that point anyway.
1833 was well before the 14th Amendment was passed. Yet later courts used Barron v. Baltimore as precedent to say that even after the 14th amendment, the BoR still did not apply to the states. Using "Barron" as precedent today, would be like saying that "Dred Scott" was still "good law" after the passage of the 13th and 14th amendments. Can we never go back and correct bad rulings by the Courts, even the Supreme Court? I think the answer is obvious, we can and we have. Although in some cases, in particular the tortured "incorporation" doctrine that the courts have used to apply *some* of the Bill of Rights to the states, have resulted in some real pretzle-like logic in order to change the precedent while pretending not to do so.
Congress is not bound by it's earlier enactments, unless those be Constitutional amendments which went on to be ratified by the states, why should the courts continue to enforce bad decisions of earlier courts, sometimes much earlier courts? Barron v. Baltimore is no longer "Good Law", the states may not take private property for public use without compensation. The fifth amendment has been "incorporated" against the states, via the 14th amendment. While I believe the Privileges and Immunities clause of th 14th amendment was meant to include those rights protected by the Bill of Rights, which after all are "immunities" of the citizens from having those rights violated, it's also true that those rights, and others, are "liberties", which the 14th amendment says states may not deprive "any person" of without due process of law. (which does not mean simply by passing a law. It means that the "liberties" may be taken as punishment of crime adjudicated through due process, such as trial).
Since 1939? I sort of a doubt that there has been no such case in 68 years?
Yes.
"Are you using one definition of "people" when talking about the Bill of Rights in total, a different definition in amendments 1,4,5, 9, and 10, and a third definition for amendment 2?"
As I said, "the people" (ie., the people at large) refers to different groups depending on what were talking about.
In the 1st amendment, the right of "the people" to assemble refers to those people who have obtained a permit. (Give me some latitude here. I'm simply trying to illustrate a point.)
In the 2nd amendment, "the people" were white males, citizens, 17-45 years of age.
In the 4th amendment, "the people" refers to all adults -- citizens, tourists, illegals, green card holders, etc. Not children.
The 5th amendment refers to a "person". An individual.
The 6th amendment refers to "the accused". An individual.
In the 9th amendment, "the people" refers to whoever is affected by the right. The right to an abortion (covered under the right to privacy) initially only applied to women in the first trimester. The right to sodomy only applies to Dead Corpse.
The 10th amendment? I don't know. But you get the idea. I'm still fleshing this out.
No it doesn't, it says that Congress shall have the power to *provide for* the arming of the militia. It doesn't say that they must. Because they might not, the second amendment was needed to ensure that the militia, that is the body of the people able to bear arms, would be able to be armed wether Congress "provided" those arms or not.
In the event, the very next Congress after the one that passed the second amendment passed the Militia Act of 1792. That act provided:
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. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes..
IOW they did not chose to provide any arms, but rather to "provide for" the arming of the militia, by having it's remembers (all free white male citizens 18-45) provide themselves with a proper arm or arms.
I knew that. Why I didn't type it, I don't know.
Yes they do have that power. Of course as has been pointed out "regulate" had a somewhat different meaning in those days. Something on the order of "make to function properly". But no matter, they cannot exercise that power, or any other granted to them in the unamended Constitution in such a way as to violate the "restrictive clauses" of later amendments, including those we know as the Bill of Rights. IOW, they cannot infringe upon the right of the people to keep and bear arms, which all but the "A" of the BATFE is involved with. In fact since their transfer from treasury to Homeland Security, they aren't much involved in the "A" part anymore either, and what little function they do still perform in that arena could be done by the part of Treasury that does the rest.
Isn't it just simpler to say that "the people" always refers to individuals, and then the individuals can decide whether to aggregate or remain alone, but regardless, the rights still stay with them?
Claiming the same latitude, there is more than just assembly in the 1st amendment. There is also the right to practice religion -- does this mean that the people only have this right when congregated in a house of worship, or do they still have this right when practicing alone at home?
The right of the people to a free press -- is there some license, certificate or degree that one must obtain before being recognized as press, or can anyone publish and be protected by this right?
The right to free speech -- does this only apply at a public oration or can anyone speak freely?
And back to assembly -- I can understand the need for a permit when assembly is in a public place where the assembly infringes on the rights of others to use the public place, but assembly also refers to the right for people to meet in a private residence without fear of government intrusion or permission, right?
So, it seems that even within a single amendment are you saying that "the people" has different meanings between the semicolons, or can we just say that the people, individually have these these rights, and they can exercise them singly or in groups of indivuals exercising their rights in concert?
-PJ
The law does not mention "sawed-off shotguns" only those having a barrel less than 18" long or having an overall lengtj less than 26" (IIRC). How the barrel or stock got that short is of no consequence. (Some shotguns are manufactured that way, mostly for use by police, but they would make dandy home defense weapons as well)
"Sawed-off shotgun" is just a term, like "Assault Weapon" or "Saturday Night Special" or "Cop Killer Bullets" designed to frighten the sheeple and make it easier for the legislators to "infringe" on "right of the people to keep and bear arms.
They've never ruled otherwise, so it's quite possible.
I wasn't. But that was the theory under which concealed carry was regulated or banned by some states. Of course most of the anti-concealed carry laws were aimed at "carrying while Black", and were never intended to be enforced against the white populace, most especially those dainty foremothers... well the white ones anyway. After all, if the Black foremothers had pistols, most Americans of African descent would be a lot more African and a lot less white. And those folks who made those anti concealed carry laws wouldn't have wanted that, now would they?
"but that right can be infringed upon if I live below the tree line?"
By your state, if it doesn't violate the state constitution, yes.
Oh, and I prefer the term "reasonably regulated given a compelling state interest" instead of "infringed".
bobby, bobby... Neither the state nor federal Constitutions may violate the rights of the individual (except in certain, VERY limited circumstances and after following due process of law, such as criminal or civil matters), no matter WHAT you prefer to call such violations. There can be NO "compelling state interest" in violating the right to keep and bear arms, EVER. The Founders, NOT being the fools you would like others to think they were, would NOT forbid the central government to violate rights, yet permit the states to do the same thing. That position is utterly absurd on the face of it. If we have rights (and we DO), we have them "above the tree line" or in mid-town Manhattan. There can be NO differentiation or dimunation of a RIGHT by government, ever. (Excepting ONLY as noted above.) Even the RIGHT to self-medicate, which you AGREE we each have, doesn't need to necessarily be "protected" by government, but MUST BE RESPECTED by government, period. The individual RIGHT to keep and bear arms must at all times and in all places be RESPECTED BY ALL LEVELS OF GOVERNMENT. LOCAL governments may put reasonable restrictions on where and during what hours we may discharge weapons in NON-EMERGENCY situations, but that is all.
On the other hand, we are liable to explain ourselves in the event we must shoot someone in the course of defending ourselves, to ensure that it's a righteous shoot. And in a self-medication case, we would surely be liable for damages we might cause by being impaired while operationg vehicles or machinery of any sort. Even criminally liable, in some cases.
That's exactly what it is. At least today and today's courts and legislatures.
BTW, the Constitution *never* speaks of rights of the state, or states, when speaking of government, general (federal) or state (one of the several states), the term is "powers", people may have powers too, but only they have rights. Check it out, with "find" it doesn't take long.
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