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 ...
LOL, you are right about that. I'm certainly glad they did!
The states had nothing to do with it. It, section 922(0). was passed by an act of Congress, in 1986, well after the states no longer appointed US Senators. It was a last minute, literally as time expired, amendment in the House, to the Firearm Owners Protection Act, passed by a voice vote of questionable propriety. It was never even debated in the House and the Senate debate on the bill only contained a short interchange between Dole and Hatch about what the provision did not ban, even though the language indicated that it did, and as it is enforced today.
Once again, pulling stuff from where the sun don't shine aren't you?
Apparently not well chosen enough for those folks who think "right of people", means "power of the states", but only in the second amendment.
That said, it's standard Constitutional interpretation to look to the other works of the day, to understand the meaning of Constitutional provisions, including the words of the authors, the debates in the Conventions, both the Constitutional convention and the ratifying conventions in the states, presuming of course that the meaning is not plainly clear in the first place, which it generally is. However the meanings of words in general usage change over time, but it is the meaning at the time the document was written that counts, and that may have to be teased from other works, including dictionaries, of the time. Well-regulated is one such term. In fact "regulate" itself, as in the power of Congress to "regulate" interstate commerce, probably deserves a bit of re-analysis as well. (it mean something like "make to function properly or smoothly", not "tie up in knots" or "throw sand in the works".
The same 9th circuit that is the most over ruled, in percentage terms, of any of the circuits. Yeah I guess there is only one 9th circuit.
The former yes, the latter, not until the "Regulars" came for their arms. They knew that was the time to use them. Even then, it was over a year (April 1775 to July 1776) before they decided they could not reconcile with the Established Government, and finally declared themselves Independent of it.
The basic rights are:
The right to life: The right to live, to do whatever one needs (legitimately and with respect for the equal right in others) to sustain, protect and DEFEND that life;
The right to liberty: The right to conduct one's life in a manner that pleases that individual, doing and saying at will (consistent with respecting the equal right in others);
The right to (justly acquired) property: the trappings and tools one wishes to have in order to protect, sustain and enjoy one's life in the manner chosen by the individual.
That's the lot, bobby, but it covers a lot of territory. If I have a RIGHT to live (and I DO), then I have the absolute right to protect my life from ANYONE who wishes me ill, and to use whatever tools I, in my sole judgement, decide are appropriate to the task: if it is an individual, I might choose a pistol as the best tool. For a terrorist attack (say, al Quaeda or my local government/fedgov goon squad), maybe a StreetSweeper automatic 12 ga. or (better yet) Ma Deuce and a 40mm M-79 grenade launcher.
Also, since my life is MINE to do with as I, in my sole judgement, will, I have an absolute right to ingest whatever pleases me, be it fine scotch or prime rib or opiates or whatever I decide is appropriate to the moment. Or to REFRAIN from so ingesting, depending on my personal beliefs.
Note that in each aspect of my RIGHTS that I choose to exercise, I have an obligation to ensure that I do not endanger non-participants, but also, non-participants have an obligation, not to "protect" my rights, but to LEAVE ME ALONE TO ENJOY THEM. This includes government and busybodies such as your rather ignoble self.
There's more, of course, but you get the picture: Life, liberty and property WITH THE NECESSARY (but unstated) adjuncts are the sum of our rights. If you read (with comprehension) the BoR, what you get is what I just stated... each individual is the sole owner of his or her life and may do with that life whatever the owner wills, consistent only with respecting the equal rights of others. RIGHTS are always INDIVIDUAL; there is no such animal as a "Group" right.
So if a majority of states wish to ban certain newspapers, then the federal government can ban them, in spite of the "Congress shall make no law" language of the first amendment, because otherwise they could be smuggled from neighboring states? Seems like a very strange version of federalism to me.
Excellent question. Can't wait to see if you get an answer.
Many thanks
But the Bill of Rights only applied to the federal government...
One point made earlier but not addressed is the language in Article VI Clause 3:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
If the Bill of Rights was only to apply to the federal government, then why do state officials take an oath to support the Constitution of the United States -- a Constitutioin with provisions for amendment in it, and with amendments already in it?
It seems clear to me that state officials take an oath to support the Bill of Rights.
You he really didn't say "heck".
That is stil awaiting a 1st amendment ruling from the Supreme Court.
-PJ
The Cruikshank case dealt not with a state infringement of Constitutionally protected rights, but with one group of individuals infringing upon those rights of other individuals. The courtfound that Congress has no power to enact laws providing such protection, such as the law that Cruikshank et. al. had violated, and that individuals must look to the state governments for such protection.
The language you quote is really just dicta, the essence of the decision is that Congress has no power to pass laws protecting the "free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States" by individuals within a state, which is exactly what the challenged law did. The case did not involve whether the federal government could enforce those rights against state or local governments.
He's not a sheep, he's a wolf. Perhaps one who sometimes wears sheep's clothing, but nonetheless a wolf who would steal our rights, given half a chance.
We need to be sheep dogs. sheep dogs with very big teeth, and lots of em.
Nowhere else? There is a prefatory clause, if that's what you wish to call it, in Art. I section 8 dealing with patents and copyright (although not in those terms). Plus, as documented in The Commonplace Second Amendment many state Constitutional provisions of the time, and of times quite near to 1789, also had such clauses. In each case the explanatory, or if you insist "prefatory" clause does not limit the operative clause, which may be narrower or broader than the explanatory clause would seem to warrant.
They "Regulate" them to death.
W
It will most certainly invalidate most or all of the federal gun laws. Many states have less restrictive laws on the books, and so in those states things will definitely change.
But as you point out that would not help against state infringements of the RKBA. However it would open the field up for "encouraging" the states to remove their infringement, most often through appeal to state constitutional protections, already in place, of the RKBA.
Even though such a ruling would not directly affect the states, it would "encourage" state courts to reevaluate the provisions of state Constitutions, especially in those states where the wording is similar or identical to the second amendment's language.
Common knowledge that was not accepted by many, even then. That includes at least one state Supreme Court (Nunn v. State, 1 Kelly 243 (Ga. 1846), and a respected Constitutional Scholar:
"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
William Rawle, A View of the Constitution of the United States of America 125-26 (2d ed. 1829)
Just because a court has not yet ruled, one way or the other, on a subject, doesn't mean that the Constitution says nothing on the matter. The 14th amendment either did incorporate the Bill of Rights (or more properly it's protections against the states, or it did not.
IMHO, the history of the legislation that led up to,and that which became, the 14th amendment shows that it did.
I wasn't speaking of nukes at that point, but rather ordinary chemical explosivebombs, which you also wanted to ban as "indiscriminate".
However there are some very low yield nukes that could be contained in a thousand acres, just a modest Kansas wheat farm. In fact a really small nuke, say .1 KT, would have the thermal and blast effects contained within that 200 acres. Even a 1 KT weapon, detonated at ground level would produce blast (out to moderate damage levels) and thermal effects, covering no more than a 1/2 mile radius. That would mean it would fit inside a single section (square mile), which is 640 acres. (Numbers for the 1 KT weapon obtained from the anti-nuke Federation of American Scientists Besides I might want the thing(s) for underground excavation, freeing oil and gas deposits, or other situations where release of radioactivity would not be a problem. Of course those "civil engineering" uses would not be protected by the second amendment, because such a device would not really be an arm, just a tool.
More seriously though. I'm OK with banning individual ownership of nukes, if you amend the Constitution to provide for it, but the amendment would have to be very carefully worded, lest some future Court interpret "Weapon of Mass Destruction" to mean a .22 rifle other than a single shot. (whose "effect" actually extends a bit farther from the point of origin than that 1 KT nuke, albeit over a very tiny area).
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