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.
Willful ignorance.
Again:
"...Judge James Warren said a local government cannot ban weapons because the California Legislature allows their sale and possession."
"The" government? You promoters of centralized government refuse to even recognize the existence of our dual state and federal sovereignty.
They know they can't debate the facts, so they predictably resort to strawmen.
Why do you torment him? You know he lacks the intellectual integrity to answer your question.
"Persons" are individuals. "The people" are a select group of persons, depending in the subject. For example, "the people" in the second amendment were ‘free able-bodied white male citizens’ -- not non-whites, not women, not children, not the elderly, not legal residents, etc. Certainly, not all persons.
"The people" in Article I, Section 2 (The House of Representatives shall be composed of members chosen every second year by the people of the several states ...) were white, male, citizen landowners only. Not all persons.
"I consider this decision fully revealing regarding the meaning of the second amendment by its casual inclusion in the opinion."
Not the second amendment. The second amendment didn't apply (and still doesn't) to the states. At that time, the entire Bill of Rights didn't apply to the states. As you said, he was referring to extending the rights of state citizenship to the slaves.
He said if slaves were citizens of a state, then they would have all the rights of that state -- 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. Those were rights protected by each state, not the Bill of Rights.
"There are many other good reasons, I believe, not explicitly put forth in the second amendment but implied in the concept of defense."
There may be, but every lower federal court opinion (save two) ruled that the second amendment protects the ability of a state to form a state Militia from federal infringement. Each state protects the individual RKBA.
That is a lie. Prohibiting active duty militia was the context of that statement.
Stop it with the slander. Seriously.
The California legislature “allows” it? You seem to still be having trouble with the definition of a “Right”.
Noticed that did you? FReegards...
Has nothing to do with promoting “centralized government”. Again, this is slander. It has to do with limiting government at ALL levels by supporting the Constitution.
Knock off the personal attacks!
Except that more and more states have passed right-to-carry laws. The tide has been turning against them since Clinton signed the "Assault Weapons Ban" in the 90's
For people who have actually read the Constitution and its supporting documentation, even those "right to carry laws" shouldn't exist. They are an attempt to get back what the government stole in the first place. Something "given" to you as a "privilege" can later be taken just as easily.
This is not how our "limited" Constitutional government was set up to operate. Seeing how ineffectual the Confederacy was at promoting and protecting fundamental Rights, the new Federal Constitution was set up as supreme over them in those specific areas defined as Federal duties.
One of those "duties" was to enforce the Bill of Rights. These Rights were considered the bare minimum and were to be afforded to ALL US Citizens. That it took a while for these protections to be afforded to women and freed slaves is not exactly one of the bright points in our history, but it does not diminish the Founding intent in the slightest.
Again, seeing States like Alaska pass RKBA legislation that effectively brings State laws in the Constitutional compliance is a good thing. It should, however be unnecessary. It also does nothing to protect Alaskans from BATFE abuse via the GCA of '68, the NFA of '34, and the '86 FOPA that corrected some abuses and set up a whole other branch of abuses in turn.
The tide may be turning, but those levees should have been built better in the first place.
This should be overturned. The intent was to apply them to individuals, irrespective of their level of organization.
The first ammendment is the soap box from which no government may knock a citizen from-- where government 'wrongs' are aired.
The second ammendment is the cartridge box which no government (pick a level, any level) may deny citizens access less it clearly violates the pact that exists between citizens and their 'representative' government.
“Then tell me one state where an individual’s right to keep and bear arms is not protected. You can’t.”
I have answered this question for you before, but I will answer it again. Per http://www.law.ucla.edu/volokh/beararms/statecon.htm the following have no State Constitutional Right to Keep and Bear Arms Provisions:
California
Iowa
Maryland
Minnesota
New Jersey
New York
Does that mean that individuals in those states do not have the right to bear arms? No, they are still citizens of the US so the 2nd Amendment covers them.
Actually no. The Preamble and text of the ratified legislation purposing the Amendments applies the Amendments as part of the Constitution. As such, they apply to the States via ARt 4 Set 2 and Art 6 para 2.
http://www.law.ucla.edu/volokh/beararms/statecon.htm to see the states that have right to bear arms provisions in their Costitutions.
Even you know that law and Constitution are two different things, a law can easily be changed/revoked/etc. Constitutions are harder to do the same to. So what if they pass a law stating that citizens can carry concealed. That can be revoked with the next group of lib legislators. If that happens tell me what do Minnesota gunowners have to protect them? The 2nd amendment? Per RP, that only protects the states not individuals.
So you are saying that the states can pass laws restricting your speech (ie. not allowing you to speak against bills being considered in your state), remove the ability to have a trial by jury on common law suits where the value in controversy exceeds twenty dollars, allow excessive bail, require people to testify against themselves, not allow people to know why they are being tried, not allow defense witnesses, allowing slavery, etc.?
Amazing isn’t it DC, we have lib Constitutional scholars that even admit that the 2nd applies to individuals but yet someone that claims to be conservative thinks it applies to states only. RP thinks that the Miller decision backs him just because of all the militia references, even though they don’t say that it does apply to milita in the decision.
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