Posted on 07/06/2007 4:34:01 PM PDT by fight_truth_decay
This time, the Supreme Court may have to decide what the Second Amendment means. But how much will really change?
“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” U.S. Constitution, Amendment II
Earlier this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the District of Columbia’s stringent gun-control regulations, ruling squarely that the Second Amendment protects an individual’s right to bear arms.
In the cultural and legal battle over gun control, the decision was the proverbial shot heard ’round the world.
The ruling—in Parker v. District of Columbia—marked the first time a gun law has been found unconstitutional based on the Second Amendment, and it set up a direct conflict among the circuits. Nine federal appeals courts around the nation have adopted the view that the amendment guarantees only the collective right of organized state militias to bear arms, not an individual’s right. (A 5th Circuit panel found that individuals have gun rights but upheld the regulation in question, so both sides claim that ruling as a victory.)
In May, when the full D.C. Circuit Court refused to grant a rehearing en banc, the stage seemed set for a showdown in the Supreme Court, which has thus far managed to dodge the question of whether the Second Amendment guarantees an individual’s right to bear arms.
According to HLS Professor Mark Tushnet, author of “Out of Range: Why the Constitution Can’t End the Battle Over Guns” (Oxford University Press, 2007), earlier petitions were cluttered by issues that allowed the Court to decline review or avoid the Second Amendment question. But Parker “is more straightforward,” Tushnet says, and the Court will have a tougher time avoiding the issue.
If Parker is the long-awaited “clean” case, one reason may be that lawyers for the National Rifle Association—who helped steer the legal strategy of the plaintiffs and backed them financially—have learned from earlier defeats, and crafted the case to maximize the chances of Supreme Court review. For one thing, it is a civil case, not a criminal one, and the six plaintiffs, in the words of NRA President Sandra Froman ’74, are “ordinary people whose lives are impacted by not having the right to protect themselves.” They include a woman who lives in a high-crime area and has been threatened by drug dealers, a gay man assaulted because of his sexual orientation and a special police officer for the Federal Judicial Center.
In addition, the laws challenged in Parker are among the most stringent in the nation: Handguns cannot be registered in the district; those registered before a 1976 ban cannot be carried from one room to another without a license; and any firearm in a home must be kept unloaded and either locked or disassembled.
Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesn’t involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendment—a question that clouded an earlier case involving one city’s complete ban on handgun possession. He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one.
Pro-gun activists like Froman are confident that the Court will hear an appeal by the district in Parker, and they say that they couldn’t have gotten this far without help from an unlikely quarter: liberal law professors. In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.
“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview. “I have always supported as a matter of policy very comprehensive gun control.”
Froman says the fact that Tribe and others reversed their interpretation in recent years has had enormous influence. Indeed, the majority opinion in Parker, written by Judge Laurence H. Silberman ’61, referred specifically to Tribe’s revised conclusion.
The 27 words of the Second Amendment may be the most hotly contested in the Constitution. Gun-control advocates and opponents read its tortured syntax entirely differently. Each side resorts to what Tushnet calls “a simplified version of constitutional analysis” to support its viewpoint, looking solely at the wording of the amendment and what the language meant in 1791 rather than at whether society has changed in the meantime and what judicial precedents offer guidance. In “virtually no other area in constitutional law” is analysis done that way, he says, although he’s not sure why.
“There’s very little guidance on what the actual meaning of the Second Amendment is,” says Froman, a Tucson lawyer who was interviewed by the Bulletin when she returned to HLS in early April to speak on a panel. “The courts have talked a lot about the Second Amendment but have always been nibbling around the periphery. There’s never really been ‘Let’s explain and elaborate on what it means.’”
For Anthony A. Williams ’87, who served as mayor of the District of Columbia from 1999 until earlier this year and vigorously enforced the district’s gun laws during his tenure, the meaning of the amendment is unambiguous, no matter what interpretive theory is used. “Let’s take [Justice Antonin] Scalia’s approach,” he says. “I think the framers’ intent was to see to it that [through] militias, states as sovereign entities had a right to arm themselves. To me, it’s not about individuals—it’s about groups.”
But Froman firmly reaches the opposite conclusion: “A lot of people say that the prefatory clause of the Second Amendment—the words ‘A well regulated militia …’— limits the active clause pertaining to bearing arms. They want to say that means you can only exercise the right to keep and bear arms as part of a militia, meaning as part of the National Guard, forgetting that the National Guard didn’t exist then.”
“Remember,” Froman adds, “the Second Amendment guarantees a right—it does not confer a right. It’s God-given. It’s natural. The right of self-survival is a basic instinct of any organism.” The Constitution “acknowledges that.”
Tushnet believes that if the Court grants certiorari, it will ultimately overturn the decision of the D.C. panel. “My gut feeling is that there are not five votes to say the individual-rights position is correct,” he says. “[Justice Anthony] Kennedy comes from a segment of the Republican Party that is not rabidly pro-gun rights and indeed probably is sympathetic to hunters but not terribly sympathetic to handgun owners. Then the standard liberals will probably say ‘collective rights.’”
But Tribe is less confident of that prediction. Should the case reach the Supreme Court, he told The New York Times, “there’s a really quite decent chance that it will be affirmed.”
If that happens, Tushnet says, it is unlikely to end all gun regulation, because the Court would probably tailor its decision narrowly to reach consensus. The three-judge panel in Parker struck down only D.C.’s tight laws. “Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible,” he says.
Tushnet says the gun-control debate is an intractable one in which neither side will move, and a constitutional “answer” from the Supreme Court will be something of a nonstarter. Like the arguments over abortion and stem-cell research, he says, the argument over guns is in truth another battle in the culture wars and cannot be solved by constitutional analysis because neither side can be persuaded.
No gun-control strategy with any chance of surviving the political process would have a significant effect on overall gun violence or crime, Tushnet believes. To say so publicly would be the boldest and most honest stand that a major politician or candidate could take, he adds.
The tragic shootings on the campus of Virginia Tech seem to have changed no one’s position: “People responded to it in exactly the way you would expect,” Tushnet says. Supporters of gun control sought stricter laws and better enforcement, and the NRA advocated that teachers and others be armed to protect themselves.
Activists on both sides bear out that observation. Williams believes that the district’s gun laws were having a demonstrable effect on gun-related violence. “When I started as mayor, we had well over 200 homicides a year,” he says. “We brought that down to below 160, so we made serious inroads in reducing violent crime; but still, in many neighborhoods, the situation is horrific.”
Says Froman: “Statistically, the parts of the country with the greatest number of firearms have the lowest rates of violent crime with guns. It’s easy to understand why. Let’s say there were 30 people in this room, and this was a state that allowed people to carry concealed weapons for self-defense, and a criminal walked in. At least half the people in the room would draw down on the criminal. That would be the end of it.”
Froman had nothing to do with guns until, some 25 years ago, someone tried to break into her Los Angeles home. “I was terrified,” she says. “It was a real epiphany for me, for someone who had never been a victim of crime, who never thought I needed to protect myself.” The next day, she walked into a gun shop to purchase a weapon. She has been a staunch gun advocate ever since.
Does Froman ever worry about repercussions, given that she’s at the center of such a heated issue? “I live in a very rural area, at the end of a long driveway,” she says. “People ask me, ‘Don’t you get scared?’ I say, ‘Are you kidding? I have a clear shot all the way to the road.'
Anti-gunners are desperate to avoid judicial consensus that the Second Amendment is an individual right, because such a ruling immediately suggests that the immunity from federal infringement would be among the "immunities and privileges" of a citizen of the United States. The Fourteenth Amendment clearly would then apply the Second to the states.
what part of “shall not be infringed”
do they not understand?
When the Second Amendment says, "the right of the people to keep and bear arms shall not be infringed", how can you suggest that the protection does not extend to the inherent right that you agree exists?
How does the fact that a well-regulated militia is necessary to the security of a free state, reduce the scope of the inherent right protected in the Second Amendment?
It would be so easy to word an alternative Second Amendment to apply the protection ONLY to service in a militia, what explains our Founders inability to narrow the protection explicitly, if that is what was intended?
Bob, let's say a state (California, for example) went door-to-door confiscating weapons (arms) from 'the people', including 18-45 year old, white males.
Then, let's say an insurgency occurred: LA's on fire, raping, looting, pillaging, murder, etc. taking place. Who would the governor call? He hasn't a militia anymore. His police are overwhelmed, and 'the people' are dying.
Should 'the people' move to another state with a RKBA? Or should thousands die as a result of state tyranny imposed by their legislature, denying them a basic human right: self defense?
According to you, if I'm not 18-45 and white, I'm screwed- especially if my militia membership has lapsed.
Nonsense. All we would hear about from the anti-gunners would be "the Constitution is not a suicide pact" and that our Founders never meant for the people to have arms to challenge the authority of government. But our Founders had just successfully challenged the authority of government and had decided to reduce that authority, such that the government no longer would have the authority to disarm the people.
It is not the "security of the state" which is the purpose of a well-regulated Militia, but "the security of a free State". The latter requires that the right of the people to keep and bear arms not be infringed, including that of 85-year-old women.
And how does this justifies the banning of some otherwise-legal rifles because they have bayonet lugs?
There were no arms which were not protected by the Second Amendment at the time of our nation's founding, and there are no arms which are not protected today. None.
If the people wish to reduce the scope of the word "arms" in the Second Amendment, they are free to do so using the amendment process. What they may not do is permit the Congress to violate the Bill of Rights or look to the courts to re-interpret the scope of the protection.
It is not the "security of the state" which is the purpose of a well-regulated Militia, but "the security of a free State". The latter requires that the right of the people to keep and bear arms not be infringed, including that of 85-year-old women.
Precisely.
"We, the delegates of the people of the state of Rhode Island and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the commonwealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately considered the present situation of this state, do declare and make known,--
I. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity,--among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety...
XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that, at all times, the military should be under strict subordination to the civil power; that, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates, in such manner as the law directs..."
In number XVII quoted above, notice that the first item declared and made known is: That the people have a right to keep and bear arms. Seems to me that your analysis is spot on.
Additional references:
TO KEEP AND BEAR THEIR PRIVATE ARMS: THE ADOPTION OF THE SECOND AMENDMENT, 1787-1791
The Right to Arms: Does the Constitution or the Predilection of Judges Reign?
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=286&invol=73
We are reminded that the Fourteenth Amendment is a restraint upon the states and not upon private persons unconnected with a state.
Excerpts:
The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms. Waged in the popular press,[7] in the halls of Congress,[8] and increasingly in historical and (p.313)legal journals,[9] two dominant interpretations have emerged. Advocates of stricter gun controls have tended to stress the Amendment’s Militia Clause, arguing that the purpose of the Amendment was to ensure that state militias would be maintained against potential federal encroachment. This argument, embodying the collective rights theory, sees the framers’ primary, indeed sole, concern as one with the concentration of military power in the hands of the federal government, and the corresponding need to ensure a decentralized military establishment largely under state control.[10]
Opponents of stricter gun controls have tended to stress the Amendment’s second clause, arguing that the framers intended a militia of the whole—or at least the entire able-bodied white male—population, expected to perform its duties with privately owned weapons.[11]
Some critics expressed fear that Congress would use its power to establish a select militia, a group of men specially trained and armed for militia duty, similar to the earlier English experience.[76] Richard Henry Lee of Virginia argued that that select militia might be used to disarm the population and that, in any event, it would pose more of a danger to individual liberty than a militia composed of the whole population. He charged that a select militia “commits the many to the mercy and the prudence of the few.”[77] A number of critics objected to giving Congress the power to arm the militia, fearing that such power would likewise give Congress the power to withhold arms from the militia.[78]
One year after the ratification of the Second Amendment and the Bill of Rights, Congress passed legislation that reaffirmed the notion of the militia of the whole and explicitly introduced a racial component into the national deliberations on the subject of the militia. The Uniform Militia Act[88] called for the enrollment of every free, able-bodied white male citizen between the ages of eighteen and forty-five into the militia. The act further specified that every militia member was to provide himself with a musket or firelock, a bayonet, and ammunition.
This specification of a racial qualification for militia membership was somewhat at odds with general practice in the late eighteenth century. Despite its recognition and sanctioning of slavery,[89] the Constitution had no racial definition of citizenship.[90] Free Negroes voted in a majority of states.[91] A number of states had militia provisions that allowed free Negroes to participate.[92] Particularly in the northern states, many were well aware that free Negroes and former slaves had served with their state forces during the Revolution.[93] Despite the prejudices of the day, lawmakers in late eighteenth-century America were significantly less willing to write racial restrictions into constitutions and other laws guaranteeing fundamental rights than were their counterparts a generation or so later in the nineteenth century.[94] The 1792 statute restricting militia enrollment to white men was one of the earliest federal statutes to make a racial distinction.
The significance of this restriction is not altogether clear. For the South, there was a clear desire to have a militia that was reliable and could be used to suppress potential slave insurrections. But despite the fear that free Negroes might make common cause with slaves, and despite federal law, some southern states in the antebellum period enrolled free blacks as militia members.[95] (p.332)Northern states at various times also enrolled free Negroes in the militia despite federal law and often strident prejudice.[96] States North and South employed free Negroes in state forces during times of invasion.[97] While southern states often prohibited slaves from carrying weapons and strictly regulated access to firearms by free Negroes,[98] northern states generally made no racial distinction with respect to the right to own firearms,[99] and federal law was silent on the subject.
The racial restriction in the 1792 statute indicates the unrest the revolutionary generation felt toward arming blacks and perhaps the recognition that one of the functions of the militia would indeed be to put down slave revolts. Yet, the widespread use of blacks as soldiers in time of crisis and the absence of restrictions concerning the arming of blacks in the northern states may provide another clue concerning how to read the Second Amendment. The 1792 act specified militia enrollment for white men between the ages of eighteen and forty-five.[100] Yet, while it specifically included only this limited portion of the population, the statute excluded no one from militia service.
The Second Amendment: Toward an
Afro-Americanist Reconsideration
http://www.guncite.com/journals/cd-recon.html
Oh NO not YOU again.
You're right, TigersEye. I meant three, I blame my sloppy typing.
It does not look like any of the other commas in the document being much smaller and not elongated. It looks like a foreign object or an accidental touch of the pen to me.
Yep, sure could be.
It all doesn't really matter. It could have a comma after every word and the meaning would still be crystal clear to any four year old.
Self-defense is an inalienable right -- part of a right to life. Because of that, it cannot be taken away without individual due process.
The protection of your right to self-defense with a weapon, on the other hand, is up to the citizens of each state. The citizens decide which weapons may be used and under what conditions.
"and how do you think the framers would respond to that today?"
The framers would support a decision made at the state level -- that is the sum and substance of federalism.
That's simply not true. Any powers not given to the federal government were retained by the states. The federal government cannot give you a ticket for jaywalking but the state sure can.
The Bill of Rights, as written, only limited the federal government. Read the Preamble to the Bill of Rights. States were free to infringe on those rights, and many did.
It wasn't until the early 1900's that activist U.S. Supreme Courts began "incorporating" some of the Bill of Rights and making them apply to the states.
This should help. Read the sections on Bar to Federal Action and Incorporation. Five minutes.
"The Bill of Rights, as written, only limited the federal government." They wine idiotically.
THE BILL OF RIGHTS
Amendments 1-10 of the Constitution
The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;
Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:
"As part of the said Constitution"... At the time, this would have already included the "laws of any State to the contrary notwithstanding" clause of Art 6 para 2.
This was all the incorporation needed. In pre-civil war times, this was perverted by the Judiciary to uphold unConstitutional and racist gun control laws to keep slaves and newly freed-men from carrying arms.
It was never fully corrected. Now, those who hate individual Rights and firearms use these same racist arguments to further pervert the Constitution and destroy our freedoms.
They are the Enemy. They are Traitors. Plain and simple.
Use this website instead.
It has links to stuff like this
The little pamphlet herewith inclosed will give you a collective view of the alterations which have been proposed for the new Constitution.(5) Various and numerous as they appear they certainly omit many of the true grounds of opposition. The articles relating to Treaties---;to paper money, and to contracts, created more enemies than all the errors in the System positive & negative put together. It is true nevertheless that not a few, particularly in Virginia have contended for the proposed alterations from the most honorable & patriotic motives; and that among the advocates for the Constitution, there are some who wish for further guards to public liberty & individual rights. As far as thesemay consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety. My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. Letters of Delegates to Congress: Volume 25 March 1, 1788-December 31, 1789 James Madison to Thomas Jefferson
Neatly eviscerates your idiotic "collective RKBA" arguments once again.
for later
The Supremacy Clause of the U.S. Constitution says that federal law supercedes conflicting state law. In addition, most rights contained in the Bill of Rights, protected under the U.S. Constitution, may not be infringed by the states. It didn't use to be that way, but it is now.
Voting laws were, and are, left up to each state. The federal government has no power over those laws. If the states required a literacy test or a poll tax, if they excluded non-whites, women, those under 21, etc., they were free to do so. Amendments to the U.S. Constitution changed that, and the 14th amendment made those rights applicable to the states.
The second amendment has not yet been "incorporated" and made applicable to the states (neither has the third amendment, the grand jury indictment clause of the fifth amendment, and the seventh amendment).
Therefore, the second amendment only applies to gun laws written by the federal government, not the states. In other words, the federal government may not violate the second amendment. States can.
If the U.S. Supreme Court reviews Parker and decides that the second amendment does not protect an individual right, only the residents of Washington D.C. are affected -- the federal law only covers the residents of Washington, D.C. No state laws would be affected by this decision (since, again, the second amendment doesn't apply to state law).
What would happen is that state legislatures would look at the U.S. Supreme Court decision and use that as leverage to pass more restrictive state laws. Of course there's no connection, but liberal legislators will make one.
Now, states may always write laws that are more protective of rights than the federal government. Unless, of course, those rights conflict with rights held by others.
Words mean things. You're pooh-poohing them because they don't fit with your preconceived notion -- a perfect example of cognitive dissonance.
"The people" does not mean "all persons" or "all individuals". "The people" had a specific meaning to the Founding Fathers who used that phrase in the U.S. Constitution.
Try this. In 1789, Albert Gallatin said, "The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals..."
Whoa! Either-or. So the Bill of Rights contains rights held by the people at large or by people as individuals.
The "people at large" was also written as "the whole people" or simply "the people". If the Founding Fathers wanted to refer to all individuals, they would use "persons".
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