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.
It seems that Menotony was a hotbed of fighting geezers:
_________________________
A description of the attack on the British Troops returning from Concord Mass. to Boston on April 19, 1776.
“It was also in Menotony that the Briitish met their most formidable individual opponent, the aged Sam Whittemore. An old soldier who was out to stop the British even if he had to do it all by himself. Whittemore,who in his younger days had commanded a troop of dragoons for the Crown, was a tough customer, and always had been. The Middlesex Court Records for January 1741 show that he was hauled into court for expressing publicly his opinion that one Colonel Vassal was no more fit for selectman than his horse was; whereupon Colonel Vassal had him clapped in jail and sued him for defamation of character, claiming damages of L10,000. The court ruled that the words were not actionable, and when Whittemore heard the verdict he commenced action against the colonel for “false and malicious imprisonment” and recovered L1,200 damages.
Now eighty years old, Whittemore was not the kind of man to be cowed by a mere 1,500 redcoats. Having heard that the British had marched through town, he spent the day preparing his own private arsenal, which included a brace of pistols, a saber, and a musket. Then he loaded himself with his gear and told his wife he was going up town to meet the regulars.
He joined the men going into position near Cooper’s Tavern, where the road to Medford branches off to the north, and stationed himself 150 yards off the road, behind a stone wall that offered him a good view of the route to Boston. This location put him directly in the path of the flanking companies of Colonel Nesbitt’s 47th Regiment, as well as in the way of the main body.
When the heavy firing began, Whittemore waited until the flankers were almost upon him, then fired his musket and dropped a regular in his tracks. He jumped up and fired off both pistols, killing at least one and possibly two more redcoats before a round hit him in the face and knocked him down. The men around him were driven back and the regulars, who lost several men getting across the Medford Road, leaped over the wall as Whittemore fell and bayonetted him again and again. Then they moved on, satisfied that they had killed at least one of their elusive tormentors. But with his face half shot away and thirteen bayonet wounds in him, Sam Whittemore survived and lived to be almost a hundred years old, always insisting that if he had to live that day over he would do the same thing again. “
From The Minute Men by John R. Galvin, Brassey’s 1989 p.220-221.
Dude, why are you so exerised about this?
Granted, no one sane was too keen on this case, but the plaintiffs were not to be dissuaded.
I’ll even stipulate that there are many ways for this to go bad, and only one way for it to go right, but what FReepers think about the tactics isn’t going to have any effect on what happens. Myself, I’m going to root for the good guys.
Maybe you’re just trying to stake out territory so you can say “I told you so” if (as I think likely) this case goes against us? That’s weak, homeslice.
Important case!!!
Your statement is correct - and also quite irrelevant. The case will proceed or not, no matter how many threads we have here about it, and no matter the content of those threads.
Thus, all you have done is to gratuitously insult all those on FR who think differently than you. Maybe you don't care about that, but we are supposed to be a bit more polite and civilized than the DUmmies*. If you have an argument that is not ad hominem* and which is cogent, then I think that people would be more willing to consider it. You don't have the greatest history in this regard, as the responses to you in this thread bear out.
*You might note that I just engaged in an ad hominem attack on the DUmmies. The difference between my attack and yours is that I'm beyond trying to have a rational discussion with those people, since most of them are incapable of it. They make their political decisions based on "feelings" and cannot be reached by most logic. I sincerely believe that most FReepers are different, and if YOU want to reach any of us and convince us that you're correct, then stop the personal attacks. Otherwise, BEGONE!
Death knell? Why do you believe this to be correct? Every state already protects an individual right. Some cities, like Chicago, don't protect the right to keep and bear a handgun, so certainly those laws would change.
The Parker court admitted that the government can still set reasonable restrictions -- they even said the second amendment doesn't protect concealed carry! Death knell indeed.
Then we might as well shut down FR -- I mean, if what we say has no effect on anything.
I thought the purpose of FR was to allow an expression of opinion. That's what I'm doing.
Why you would look at that as my trying to "stake out territory" I don't know.
I thought the Parker court addressed that -- they essentially said that it was wrong for the other courts to reject cases for lack of standing because that action pre-judged the outcome of the case!
If the U.S. Supreme Court is to determine either a collective right or an individual right, they certainly can't reject a plaintiff who is representing an individual right because of standing.
Every state - EVERY state? I don't think so. In any case, when I think "death knell" I'm not thinking so much about whether the legislatures of Texas or Wyoming or Alaska or similar-minded states are going to ban all guns, including bolt-action .22s - because I know that they wouldn't do so even if their state constitutions permitted it...the legislators would be constantly wondering if they'd see the light of the next day. No, I'm thinking of the principle expressed in Parker that the 2nd Amendment protects an individual right. If that part of the ruling is incorporated into a USSC ruling, then there is a strong basis to overturn such things as:
1) Any ban on semi-auto rifles;
2) Any ban on firearms that fire the .50 BMG cartridge (semi-auto or bolt);
3) Any ban on handguns in any jurisdiction (Chicago, Morton Grove, etc.);
4) Bans on full auto ownership by states; and
5) (Here's the biggie, from my perspective): An overturning of Title 18, Section 922(o). Kill 922(o), and you'll have 1 million full autos in civilian hands within a couple of years, rather than approximately 200,000 now (and the other 800,000 will be newer and more reliable, plus replacement parts will be readily available for the old ones). Oh, and it'll cost you considerably less than $15,000 for a full auto M-16 - more like $2,000, possibly less.
Have 1 million full autos in civilian hands without "blood running in the streets," and you'll kill gun control because that's THEIR worst nightmare (the firepower in civilian hands, NOT the bloodbath they always fearmonger about), and they won't be able to sell their crap to the middle of the road people. Wait till everyone knows someone, or knows someone who knows someone, with a full auto and then gun control as we all know it is DEAD.
You're right. I should have said that it was idiotic thinking, not that they were idiots. To those who were thinking I was I calling them, personally, an idiot, I apologize.
To the rest of you with an IQ over 50 who knew what I really meant when I said that, nevermind.
It's been infringed to the status of a either a paid privilege or banned, depending on particulars, for tens of millions of folks.
What do you think we'll gain by a U.S. Supreme Court ruling? Do you think they'll also say that the second amendment protects concealed carry -- anywhere, anytime, by anybody?
Why should folks in Alaska and Vermont have more rights recognized than citizens in the rest of the country?
Do you think they'll also say that all weapons are protected -- machine guns, rocket launchers, tanks, artillery, grenades, flame throwers, etc.?
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.
"That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment. And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment."
Many states have laws against the open carry of handguns.
Uh-oh. Did you see that, Freedom_Is_Not_Free? Do you realize what that means, Freedom_Is_Not_Free? Or should I call you "idiot among idiots"?
Let's do it your way. It goes to the U.S. Supreme Court and they say the second amendment protects an individual right. Yay! Let's all celebrate!
Now, either this court, or some future liberal court, says that the second amendment doesn't protect concealed carry, meaning that ALL 50 STATES must comply. Hmmmmm.
Hey, even worse. Some future liberal court says that "arms" doesn't include handguns. Turn 'em in. Or "keep" means to keep in a state armory, not at home.
Black robes do the things that they do. They can be overruled by Congress, e.g. late term, "partial birth abortion." Parker v. D.C. says you can't ban a whole class of weapons, and that firearms are expected to be available for self defense.
Oh, that won't happen robertpaulsen. Oh, no. Just like abortion cannot possibly be a protected right. Or sodomy. Or, eminent domain only applies to cities taking property, not private enterprise. Or the first amendment can't possibly apply to nude dancing. Or, certainly the first amendment protects political speech 90 days before an election.
SCOTUS just heard a new case on the BCRA. IIRC, it's restriction is 30 days before a primary election and 60 days before a general election. Anthony Kennedy voted with the minority last time. IMHO, I expect a 5 - 4 vote to overturn at least that provision.
Yeah, good idea. Let's have these 9 yahoos on the U.S. Supreme Court interpret the meaning of the second amendment for every state.
"Idiot" is perhaps too kind. "Traitorous, Sarah Brady lacky" might be a better descriptor for you and others who want this.
I didn't ask for Parker, but it's a train that left the station. Regardless of any en banc decision or lack thereof, I'll be surprised if SCOTUS doesn't grant cert. That said, the facts and logic of Parker seemed ironclad.
That IS what Parker said - which is decidedly in opposition to what a whole host of other courts in different Circuits have said. I don't have access to Westlaw, but I'd bet that hundreds of federal cases over the decades since Miller have said words to the effect of "We won't accept this case for failure to state a claim" - even though the claim stated was a violation of the 2nd Amendment-protected RKBA.
If the U.S. Supreme Court is to determine either a collective right or an individual right, they certainly can't reject a plaintiff who is representing an individual right because of standing.
That logic hasn't stopped other courts (see above). However, the Parker decision is an extremely well-reasoned position in favor of what you said here. For that reason, I think that there is a good chance of DC losing if it appeals an as yet hypothetical en banc loss.
I also believe that the mere existence of the Miller case (i.e. the fact that the USSC decided it on its merits, even if somewhat incorrectly) demonstrates conclusively that it is an individual right. Had the Court denied Cert. based on lack of standing, then the collective rights people might have a point. But it WAS heard on the merits - meaning that somewhere, somehow there IS an individual (i.e. actionable) RKBA. Miller didn't win because there was no record to establish that a short-barreled shotgun was suitable as a militia arm - and if he had an attorney representing him when the case went back down to the District Court, then that case would have turned out differently. IMHO, if you had a Miller-type case today with an M-16 or an M-4 at issue, you'd have reams and reams of evidence that would mitigate FOR protecting our right to own such weapons.
To the rest of you with an IQ over 50 who knew what I really meant when I said that, nevermind.
Personal attacks are just that. Some people are unable to distinguish between the messenger and the message, to objectively and logically argue against a position with which they disagree - and the manner in which you put forth your views makes it seem as if you're one of those people. I don't know if that's the case or not, but your wiseacre crack about IQ and your "nevermind" indicate that your apology is insincere at best, and they tend to make me think that you are in the group that I described above.
You know, it is possible that your arguments in this (and other threads on similar topics) are correct - but your attitude turns people off from trying to analyze your stated facts and your reasoning. I think that most people here would give your POV a fair hearing - but you push them the other way. Help yourself - go buy an attitude adjustment.
An individual right over a collective right, well, that's one thing. But how in the world does that translate to the type of weapon protected?
I suppose some could make the case that those weapons should NOT be allowed under an individual right! I mean, under a collective "Militia" right, those are the types of weapons a Militia would use -- they should be protected. Under an individual right for self-protection and hunting, a Sarah Brady type can argue, we doesn't "need" to have a BMG or machine gun.
I agree. Thanks for the account of the aged Sam Whittemore.
It isn't such a big leap. The Miller case ruled that the 2nd protected the right to own weapons that contribute to the effectiveness/efficiency of the militia. Miller himself simply didn't provide evidence that his saw-off did so (the lack of "judicial notice" cited in Miller). While full autos didn't exist (except in a patent office in England) at the time of the ratification of the 2nd, technology changes and the Constitution's protections grow along with it. No, that's NOT an argument for a "living Constitution," it is an argument for not restricting basic rights because technology changes - that's IT. Just as the 1st Amendment protects speech printed on high-speed offset printers and copying machines nowadays from government censorship, so does the 2nd protect full autos (at least those carried by the average infantryman; crew-served weapons are a different argument for a different time).
So let's summarize my thinking:
If Parker says (after being upheld at the USSC) that wholesale bans on classes of weapons are prohibited as violative of the 2nd Amendment protections of the individual RKBA, and if Miller says that weapons which contribute to the effectiveness/efficiency of the militia cannot be banned, then all that is necessary to reach the conclusion that full autos cannot be banned from ownership by the general population is 1) a violation of that right, which is embodied in Section 922(o) and the '34 NFA and 2) providing "judicial notice" that (for example) an M-4 does indeed "contribute to the effectiveness/efficiency of the militia."
They're out there--just pre-1900. I dont' have time to indulge in a "Google episode", but as I recall, Stephen Halbrook has an online copy of a brief that he did for one of the federal courts which cites quite a few.
It has been "reasonably regulated" by the state, an action that even the Parker court said is permissible. The U.S. Supreme Court declaring an individual right does not change this.
"Why should folks in Alaska and Vermont have more rights recognized than citizens in the rest of the country?"
Ah. So you're saying that the U.S. Supreme Court will not only declare an individual right but will incorporate the second amendment and make it applicable to all the states? Well then, in that case, your right. The folks in Alaska and Vermont will have the same rights recognized as citizens in the rest of the country. Either all will have concealed carry or none will. I bet you think they all will, right?
BWAHAHAHAHAHA!
"The militia were expected to deal with the weaponry of a regular standing army"
True enough. But back then, what about those outside the Militia? What of those individuals? Certainly they needed weapons for self-protection and hunting.
Well, if the second amendment protects an individual right and not a collective Militia right, then individuals certainly don't need machine guns and BMG's and semi-auto rifles. The National Guard will use those.
"Many states have laws against the open carry of handguns."
Would you prefer open carry or concealed carry?
"They can be overruled by Congress, e.g. late term, "partial birth abortion."
Yeah, that only took Congress 40 years. For just one minor subset of abortion.
"Parker v. D.C. says you can't ban a whole class of weapons, and that firearms are expected to be available for self defense."
Correct. D.C. banned all guns. Even after this ruling, D.C.can ban all guns except shotguns, for example.
"I didn't ask for Parker, but it's a train that left the station."
I don't care. Are you wanting this to go to the U.S. Supreme Court for them to decide on an individual or collective right?
Mr. Miller did not bring this case to the U.S. Supreme Court. The U.S. Attorney did.
Second, the U.S. Supreme Court case was whether the 1934 NFA violated the second amendment -- ie., if the tax stamp on the weapon was an infringement. At this point, Mr. Miller was irrelevent.
"IMHO, if you had a Miller-type case today with an M-16 or an M-4 at issue"
That's too easy. What if you had a Miller-type case today with a sawed-off shotgun with a 10" barrel?
Oooh, let's not. Way too much like a trip down the rabbit hole.
You're asking the U.S. Supreme Court to make a choice, correct? Either an individual right or a collective Militia right.
Yet you expect their answer to be an individual right protecting collective right, Militia-type weapons. Where do you come up with this? The Mad Hatter? The Cheshire Cat? The Queen of Hearts?
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