Posted on 05/02/2007 2:14:58 PM PDT by neverdem
There is a case working its way to the Supreme Court that might settle one of the biggest unanswered questions in constitutional law: Does the Second Amendment guarantee an individual right to own a gun? Whether or not you own a gun, this is a case you should care about.
I’m not just saying that because I’m the immediate past president of the National Rifle Association. (Last month I completed my two-year term as president and nine years as an officer of the NRA.) I’m also saying it as an attorney who’s been arguing cases in federal court for more than 30 years, and who understands how a clear precedent on a constitutional question can determine the outcome of a case.
There is a case moving towards the High Court that will likely give us such a precedent on your right to own a gun – a precedent that is either good or bad, depending on your point of view. That case is Parker v. District of Columbia.
I often get asked why there is such a passionate debate on whether the right to own a firearm is a civil right. Everyone agrees that the Constitution speaks about firearms. The Second Amendment speaks of, “the right of the people to keep and bear arms.”
The disagreement is over what those words mean. Most people believe what is called the individual rights view of the Second Amendment, meaning that all law-abiding, peaceable citizens have the individual right to own firearms. The opposing interpretation is called the collective rights view, meaning that the Second Amendment is only a right of state governments to arm their National Guard units.
Polls show that more than 70% of Americans (correctly) believe that they have a civil right under the Constitution to own a gun. But in America we don’t decide constitutional controversies by taking a poll.
Only federal courts—and ultimately the Supreme Court—have the power to interpret the Constitution in a binding way. The Supreme Court has never spoken definitively on the scope or meaning of the Second Amendment. And the Court’s silence has allowed cities and states to enact broad, sweeping laws hostile to gun ownership.
The worst of these laws is the District of Columbia gun ban. If you live in our nation’s capital, you cannot have a handgun or a readily-usable rifle or shotgun in your own home for self-defense. No ifs, ands or buts. It is a near-blanket prohibition on firearms and self-defense.
That brings us to the Parker case. The named plaintiff, Shelly Parker, lives in the high crime area of DC and has been threatened by thugs and drug dealers. She wants to be able to protect herself and she sued the city government over the gun ban. It’s shocking to realize that in one of the most violent cities in America, a woman is denied the tool that might save her life.
But it’s the law in the District, so she took the District to court.
On March 9, in a landmark ruling the U.S. Court of Appeals for the District of Columbia Circuit struck down the DC gun ban as unconstitutional in a 2-1 decision. The DC Circuit Court held that the Second Amendment protects a citizen’s civil right to own firearms, adopting the individual rights view, and invalidated the DC law.
As you would expect, the DC government is appealing the ruling. Earlier this month DC petitioned for what is called an en banc rehearing. That means that all eleven eligible judges on the DC Circuit would hear the case, instead of the usual three-judge panel. As you read this we are waiting to see if the circuit court grants or denies that petition.
Regardless of whether the full DC Circuit Court hears the case en banc, the losing party will certainly appeal to the U.S. Supreme Court. And without going into all the legal rules and reasons that help determine whether the Court takes a given case, let me just say the odds are good that the Court will take this one.
This case is monumental. Already the DC Circuit Court opinion—if left untouched—will totally change gun ownership rights in the District of Columbia. And the DC Circuit is one of the most respected and well-credentialed courts in America. Its opinions and rulings have a major impact on courts and lawmakers all over the country.
But as important as the DC Circuit is, it pales in comparison to the Supreme Court. If the Supreme Court takes this case, it could have a huge impact all across our land.
There’s so much more to be said regarding this case. I’ll have more to write on this once the DC Circuit decides whether to rehear en banc. In the meantime, this is a case you want to be watching. There’s a lot at stake, not just for gun owners but for all who believe in upholding the Constitution and enforcing our civil rights.
Sandy Froman is the immediate past president of the National Rifle Association of America, only the second woman and the first Jewish American to hold that office in the 136-year history of the NRA.
You didn't ask me, but my opinion is 'nothing different than the way it is right now'.
American gun owners are currently bearing arms (in most cases, depending on the interpretation of various state constitutions) under the notion that RKBA is a collective right.
If Parker vs. DC loses at the USSC, what's the difference?
What makes you think my doing so again will change your mind?
There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.
He then set out to rectify this and is largely given credit for penning the Original BoR. Even better than Marshall, Mason himself knew what he was writing.
Then California, Illinois, Denver, New York, ect... can pass outright bans without impediment. No appeal via the "Justice system" would be viable.
It'd be time to take up arms IOW.
I think that they can do that in those places anyway. That’s what we’ve got right now.
Without that, you've got nothing.
Well, that explains it. Simply declare a ruling wrong and everything falls into place.
So after Marshall left the court, this error was corrected? Ever? By any court?
Rights would be protected and you wouldn't have to ask permission to exercise them. Your petty dictator down at City Hall couldn't arbitrarily take them away from you.
The BoR was to be our "Declaration of the Rights of Man". Broad and general. Something every US citizen, regardless of where in the US they lived, could look to and know that these basic and fundamental Rights were off limits to Government.
Turn that on it's head and we are no better than France or Russia.
The Right of the People to Keep and Bear Arms Shall Not Be Infringed.
How much more f*cking plain does it need to get?
George Mason wrote the BoR. Marshall's "interpretation" re-wrote the scope of the Constitution. Legislating and Amending is done by Congress and the States. Not the judiciary.
Yes, right. That’s my point. What’s to lose? They’re already doing it to us now anyway.
I'm not too sure about that. I think the sh*tstorm that would occur would force even some liberal Democrats to decide to back such an amendment. And there IS another mechanism (never thus far used) that bypasses the Congress completely. If 3/4ths of the state legislatures call for a new Constitutional Convention, one WILL be called. It's a danged dangerous option, though.
"That's why we have to continue to press the fight for our RKBA at the legislative level at least as hard as at the judicial level."
Oh, I definitely agree. The thing that "gun rights" folks should push for besides CCW, is, in those states that have no RKBA in the state Constitutions, is to have one passed.
Yes it is. Once a constitutional convention is convened the entire existing Constitution is up for revision. I don't trust the mental midgets who would run the show today not to irresponsibly mess around with the masterpiece document that the 18th century masterminds created and bequeathed to all succeeding generations of Americans.
It has been about seven years since last researching the legal opinions of some of the 19th century rulings regarding the individual right to keep and bear arms. However, in my recollection one ruling stood out as especially meaningful. It was not about the second amendment, which state constitutions and popular awareness understood as about individuals—those individuals who are so focal in the origination of our philosophy of government and the meaning of the statements in our founding documents. The ruling was about the meaning of being a person. The case was that of Dred Scott and it is perhaps the most infamous case in U.S.S.C history. In the majority opinion, I believe it is Justice Taney’s words that suggest the states obviously did not intend that blacks would be given the full rights of the citizens of each states and that doing so would be a threat to public safety.
, “...and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”
I consider this decision fully revealing regarding the meaning of the second amendment by its casual inclusion in the opinion. But, if you need more explanation of the individual rights meaning of the second amendment, I offer to you more writings related to the case.
“Another of the early laws of which we have spoken, is the first militia law, which was passed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every ‘free able-bodied white male citizen’ shall be enrolled in the militia.”
In all, the matter of an individual or collective right is a recent argument of no substantive value to issues of handguns or long arms. The second amendment sees the individual as the best tool to maintaining freedom and many other writings point to the mistrust of a large standing government army. What is important is that each American has the un-infringed right to keep and bear arms and each American’s role in the militia is offered as sufficient reason. There are many other good reasons, I believe, not explicitly put forth in the second amendment but implied in the concept of defense.
We have neglected the individual’s role in collective security and that has added greatly to the confusion about the second amendment. Our nation has never faced up to its weakening support of the idea that its citizens are the best defenders of freedom. The point of debate should be about that. Only after that debate can a debate about removing the rights of citizens to keep and bear arms be considered. I know how I fall on that issue in an era when diffuse and varied dangers appear in many aspects of modern life.
Are you a full citizen or are you denied the rights of free persons?
My $.02—thank you for reading and considering.
I don’t know where you two make up this BS about your opposition. You’re so wrapped up with the gov’t deciding (with or without people’s consent) what “rights” are allowed, and to what degree, that you’re completely blinded to the notion that some individual rights exist regardless of what anyone else says, and that governments (fed and state and local) are obligated to respect, if not outright protect, them.
“But here’s an interesting thought: Justice Souter was mugged jogging in Washington DC. He might think there’s a personal right to arms.”
One can have ones brain’s beaten out, but to beat brains into a human skull seems to only be doable while the human is still a child and then only when the parents are consistent with their application of the rod.
Did you hear what the mugger said? “Gimme your cash!”
Souter replied “I am Supreme Court Justice Souter.”
Then the mugger said “Gimme my cash!”
First Amendment regulations are largely limited to matters of use (libel, slander, etc.) and connections to horrific crimes (kiddie porn), both of which have little/no justifiable purpose in society. Your connection is a non-sequitor, as nearly all guns are used in a manner neutral, if not helpful, to society.
First Amendment regulations do NOT go anywhere close to what you yourself described as treating the 1st like the 2nd, whereby only those with library cards would be able to possess/read books, and those only what the library owned.
The New York Supreme Court clarified that in Guida v. Dier, 375 N.Y.S.2d 826, 828 (N.Y. Sup. Ct. 1975) when they said: "The right guaranteed by the Second Amendment…and further defined in Section 4 of Article 2 of the (New York -rp) Civil Rights Law does not extend to pistols or other readily concealable hand weapons. Rather, those guarantees protect only the right to be armed with weaponry suitable for use by the militia in warfare and for the general defense of the community."
This coming from a state which totally prohibits machineguns, short-barreled rifles, destructive devices, and silencers - all of which are plainly suitable for modern warfare (M16s are machineguns, M4s have barrels under 16", mortars & grenades are destructive devices, and the silencer industry can't keep up with military demand now).
“The militia were expected to deal with the weaponry of a regular standing army. Crew served weapons should remain with the organized militia, i.e. National Guard and Reserve Components of the United States Armed Forces.”
Sorry ‘bout having to tell you this, but individuals DID own crew served weapons (cannon) and individuals even owned warships (privateers).
I am far less worried that some tank owner will turn whacko than that the nice Mexican walking down the street may be part of the Mexican criminal population.
The crime stats support my position regarding relative risks described above..
Red herring. You have repeatedly promoted the bizarre position that a concealed carry ban doesn't violate the 2nd Amendment.
Red herring. The early states did, without Constitutional objections from the Founding Fathers.
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