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.
When you can support your claim, get back to me.
The manner of being reasonably regulated by the City of Washington D.C. is the matter at hand.
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.
No, I didn't write that. That can happen in a future case from Chicago.
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!
No, folks in other states will probably seek standing to have the same rights as recognized as the citizens of D.C. have, if not the same rights as recognized as the citizens of Alaska and Vermont have, if Parker is upheld by SCOTUS. I can easily see arguments about registration and licensing schemes for simple possession being brought to the SCOTUS. But eventually a case of concealed carry privileges and infringement could get to SCOTUS.
True enough. But back then, what about those outside the Militia? What of those individuals? Certainly they needed weapons for self-protection and hunting.
Read the Militia Act, and its modern descendants. The unorganized militia is recognized in current federal statutory law. IIRC, I gave you a link to it on a previous thread.
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.
In my previous comment I stated that crew served weapons should be maintained by units of the organized militia.
Would you prefer open carry or concealed carry?
Why do I have to pick either or? Free men and women should have their liberty.
Correct. D.C. banned all guns. Even after this ruling, D.C.can ban all guns except shotguns, for example.
No, that's incorrect. Handguns that were registered prior to the effective date in 1976 were legal. After 1976, no more permits for registration were issued for handguns, or some similar scheme which had that effect. Rifles and shotguns were permitted, but they had to be secured, disassembled or somehow made useless for all practical purposes of self defense.
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?
You know what I want, liberty and the right of self defense as a minimum, but what I want is irrelevant. I'd prefer more strict constructionists on the SCOTUS. But the train has left the station. BTW, correcting all your assumptions and mistakes has become tiresome.
You MIGHT have some good arguments/positions.
However.
I will no longer engage you in any discussion. You appear unable to discuss issues without ad hominem attacks, and that is beyond the pale for me. I have a thick skin, but your name-calling is out of hand. Buh-bye. Have a nice life.
Who cares? Why is that the issue? The photo is of a sawed-off shotgun with a short barrel. Is that a Militia-type weapon? Would the U.S. Supreme Court say such a weapon was protected under the second amendment?
I mean...I don't know if this is "it" or not.
So how do you know?
Besides all that......it's probably a moot point to me personally.
And their cases will be thrown out, as they have before, because the court will say, as they have before, that the second amendment doesn't protect against state laws.
So, this is just wishful thinking on your part.
"The unorganized militia is recognized in current federal statutory law."
Yep. But the second amendment protects a well regulated Militia not an unorganized Militia.
Besides, if you're saying the second amendment protects an individual right and not a collective Militia right, then Militia weapons are not protected by the second amendment. Militias don't even come into play.
"Why do I have to pick either or? "
Currently, states protect concealed carry. But you want the second amendment to protect your individual rights. The Parker court said that the second amendment doesn't protect concealed carry. So, I guess you must prefer open carry.
"BTW, correcting all your assumptions and mistakes has become tiresome."
Not as tiresome as me having to repeat myself for you, time after time.
I really wish that people would stop using the word interpert when used with the Constitution. There is no interpertation needed, it is not in a foreign language. It says what it says and means what it says. If we keep using interpert with Constitution it is just going to make it tolerated when it is done by judges that want to legislate from the bench.
The odds aren't in our favor. We have one, maybe two, lower federal circuit court rulings which favor an individual right vs. maybe forty lower federal circuit court rulings which favor a collective right (or sophisticated collective right).
The DC Circuit court and the 5th Circuit court favor an individual rights model. The 1st, 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, 10th, and 11th Circuit courts favor a collective rights model.
Sure, maybe the U.S. Supreme Court will ignore all that and vote the way WE want. That could happen.
How dare I throw cold water on this? I must be a gun hating gun grabber to talk this way. No other explanation.
Then what will we do about a "speedy" trial, "excessive" bail, "cruel and unusual" punishment, "unreasonable" searches and seizures, "just" compensation, and "probable" cause.
I mean, if we're not allowed to interpret those words, then what?
SO many questions. Why answer them? You’ve already got all the answers.
So, this is just wishful thinking on your part.
Then you'll have folks in D.C. enjoying rights denied elsewhere in the country. I think SCOTUS was set up to resolve such discrepancies.
Yep. But the second amendment protects a well regulated Militia not an unorganized Militia.
That's your opinion. You're confusing the prefatory clause with the independent clause, "the right of the people to keep and bear arms, shall not be infringed.
Besides, if you're saying the second amendment protects an individual right and not a collective Militia right, then Militia weapons are not protected by the second amendment. Militias don't even come into play.
I'd like to hear what Patrick Henry would have to say to such nonsense. The militia are the people. "Who are the militia? They consist of the whole people."
Currently, states protect concealed carry. But you want the second amendment to protect your individual rights. The Parker court said that the second amendment doesn't protect concealed carry. So, I guess you must prefer open carry.
Currently, some states protect concealed carry privileges. Two states, Illinois and Wisconsin I believe, deny any privileges with exceptions basically limited to LEOs. About forty states have "shall issue" concealed carry privileges. The remainder are a mixed bag of may issue concealed carry privileges. If paying for privileges is not an infringement of a right, what is? As for my preference, it should be my liberty to carry as the situation warrants. Each choice has advantages and disadvantages.
Not as tiresome as me having to repeat myself for you, time after time.
Good, don't bother. I'm not buying statist koolaid. Adios
Oh my God! That sounds like ... like ... federalism!
"Who are the militia? They consist of the whole people."
Well, white adult male citizens, anyways.
Don't be a race baiter or I'll have to start calling you Reverend Bob!
You are such a retard.
I don’t hang everything on Parker.
Hell, you even quote Emerson as if it stands for something other than an individual right case.
The shot across the bow is the bow of SCOTUS and what they have said through history in Cruikshank, Lopez, Casey, Verdigo-Urquidez (sp?) etc...
Where SCOTUS, in dicta, place the second amendment in with the other individual right amendments like the First, Third, Fourth and Fifth.
Not to mention Souter and Ginsburg’s own words in other cases.
But thank you for proving my point, that you are too ignorant to understand what that passage from Parker was - or you are merely a shill for VPC or some other collective right organization.
Good riddance...this is my last post to you.
I know that. You know that. We all know that.
But maybe someone should have clued in Mr. Henry? Seems to me that when he said "the whole people" he didn't really mean the whole people, now did he?
So why are you using that quote?
In the end, it will come down to one man's opinion: Anthony Kennedy's.
I am not brimming with confidence.
Unlike Parker, it overturned no federal gun law.
"and what they have said through history in Cruikshank, Lopez, Casey, Verdigo-Urquidez (sp?) etc"
I know what they said. I must have read each of those cases a dozen times. Tell me how they're relevent, especially when most of those Supreme Court justices are no longer on the court.
"Not to mention Souter and Ginsburg’s own words in other cases."
Oops, forget the dicta of past cases -- now the actual justices ARE relevent.
"to understand what that passage from Parker was"
The passage you cited? Irrelevent. It no more says the second amendment protects an individual right than The Cat in the Hat does.
"Good riddance...this is my last post to you."
What? Wheel of Fortune coming on?
Why should folks in Alaska and Vermont have more rights recognized than citizens in the rest of the country?
And you got the majority rule/statist 'answer'.
-- Quite a few people in this country ~insist~ that States are not obligated to support & defend all the Amendments to the Constitution, including the second amendment.
To them, state and local laws can be written that ignore due process, equal protection, or the privileges/immunities established in our fed/state constitutions protecting ALL citizens.
To the statist mind, groups of people can rule over individuals. Somehow they see a 'majority will' as a trump over freedom.
As you and several others have noted on this thread, -- it's time to stop responding to this idiotic agitprop directly.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.