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.'
Tribune7:........movie types carry a concealed weapon or keep one in their homes for personal protection.....
Rosie is an anti-gun ownership activist, we all know.
Behar: “...Women are more, a little bit more snotty, though, and nasty to each other. But they talk it through, they don’t hit and they don’t drop bombs and they don’t shoot. They don’t play with guns. So that’s ...
O’Donnell: “Yeah.”
Hasselbeck: “That’s so stereotypical...I know plenty of women who pack a gun.”
O’Donnell sounded shocked by Hasselbeck’s statement and asked in amazement:
O’Donnell: “Seriously?”
Hasselbeck: “Yeah.”
O’Donnell: “You know women who carry a gun?”
Hasselbeck: “Sure.”
O’Donnell: “Who are not police officers?”
Hasselbeck: “Who were not in uniform.”
O’Donnell: “That they just carry it in case they get attacked? Like friends?”
Minutes later, Walters equated Hasselbeck’s knowledge of women with guns to the ineptness of her fellow View hosts:
Walters: “...I would like to say something about my colleagues.”
Behar: “What?”
Walters: “One of them says, I know women who carry guns. I mean, that’s a great message. This one [pointing to Behar] doesn’t even know how to hold up a prop. This one [pointing to O’Donnell] doesn’t know how to swallow a cold drink. I mean, what is with you people?”
http://johnrlott.tripod.com/2006/10/rosie-odonnell-shocked-by-women-with.html
Yet, O’Donnell has no problem with her bodyguards/security carrying guns. O’Donnell has no problem strapping ammo across her 4 year old daughter’s little shoulder for a her photo shoot.
The black codes had their roots in the slave codes that had formerly been in effect. The general philosophy supporting the institution of chattel slavery in America was based on the concept that slaves were property, not persons , and that the law must protect not only the property but also the property owner from the danger of violence. Slave rebellions were not unknown, and the possibility of uprisings was a constant source of anxiety in colonies and then states with large slave populations.
Depending on what part of the country you were from, North or South. Guns were not given to blacks in southern states in some instances for fear of slaves turning on their masters. Also guns were not "given"..it was BYOG *Bring Your Own Gun-musket, rifle to battle, etc.
Slaves had few legal rights: in court their testimony was inadmissible in any litigation involving whites; they could make no contract, nor could they own property; even if attacked, they could not strike a white person. There were numerous restrictions to enforce social control: slaves could not be away from their owner's premises without permission; they could not assemble unless a white person was present; they could not own firearms; they could not be taught to read or write, or transmit or possess “inflammatory” literature; they were not permitted to marry.
Obedience to the slave codes was exacted in a variety of ways. Such punishments as whipping, branding, and imprisonment were commonly used, but death (which meant destruction of property) was rarely called for except in such extreme cases as the rape or murder of a white person. White patrols kept the slaves under surveillance, especially at night. Slave codes were not always strictly enforced, but whenever any signs of unrest were detected the appropriate machinery of the state would be alerted and the laws more strictly enforced.
The black codes enacted immediately after the American Civil War, though varying from state to state, were all intended to secure a steady supply of cheap labour, and all continued to assume the inferiority of the freed slaves. There were vagrancy laws that declared a black to be vagrant if unemployed and without permanent residence; a person so defined could be arrested, fined, and bound out for a term of labour if unable to pay the fine. Apprentice laws provided for the “hiring out” of orphans and other young dependents to whites, who often turned out to be their former owners. Some states limited the type of property blacks could own, and in others blacks were excluded from certain businesses or from the skilled trades. Former slaves were forbidden to carry firearms or to testify in court, except in cases concerning other blacks. Legal marriage between blacks was provided for, but interracial marriage was prohibited.
It was Northern reaction to the black codes (as well as to the bloody antiblack riots in Memphis and New Orleans in 1866; see New Orleans Race Riot) that helped produce Radical Reconstruction (see Reconstruction) and the Fourteenth and Fifteenth amendments
In my mind it is quite beyond the point where we the people have lost the right, when we have to engage in serious debate with other Americans about what the founders were saying. Have we/they no sense?
Further:
Mason also believed a bill of rights should preface the Constitution:
. . . He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours. September 12, 1787
He seconded Massachusetts delegate Elbridge Gerry's motion for a committee to prepare a bill of rights, yet some argued that individual state declarations were sufficient to protect the rights of individuals. Mason countered that "The Laws of the U.S. are to be paramount to State Bills of Rights."[26] The motion was voted down, however, ten to zero, with Massachusetts abstaining. From here.
Which neatly eviscerates your idiocy again.
Or this one:
These Objections of mine were first printed very incorrectly, without my Approbation, or Privity; which laid me under some kind of Necessity of publishing them afterwards, myself. I take the Liberty of enclosing you a Copy of them. You will find them conceived in general Terms; as I wished to confine them to a narrow Compass. There are many other things very objectionable in the proposed new Constitution; particularly the almost unlimited Authority over the Militia of the several States; whereby, under Colour. of regulating, they may disarm, or render useless the Militia, the more easily to govern by a standing Army; or they may harrass the Militia, by such rigid Regulations, and intollerable Burdens, as to make the People themselves desire it's Abolition. By their Power over the Elections, they may so order them, as to deprive the People at large of any Share in the Choice of their Representatives. By the Consent of Congress, Men in the highest Offices of Trust in the United States may receive any Emolument, Place, or Pinsion from a forreign Prince, or Potentate, which is setting themselves up to the highest Bidder. But it wou'd be tedious to enumerate all the Objections; and I am sure they cannot escape Mr. Jefferson's Observation. Delaware —Pensylvania —Jersey —Connecticut —Georgia, and Maryland have ratifyed the new Government (for surely it is not a Confederation) without Amendments. Massachusets has accompanyed the Ratification with proposed Amendments. Rhode Island has rejected it. New Hampshire, after some deliberation, adjourned their Convention to June. The Convention of South Carolina is now sitting. The Convention of new York meets in June —that of North Carolina in July —and the Convention of Virginia meets on the first Monday in June. I shall set out for Richmond this Week, in order to attend it. From the best Information I have had, the Members of the Virginia Convention are so equally divided upon the Subject, that no Man can, at present, form any certain Judgement of the Issue. George Mason to Thomas Jefferson. Virginia, Gunston-Hall May 26th. 1788.
And that is just ONE Founding father. I've quoted you reams of writings and scads of links to original sources. And yet, all you have is your perversion of law by those looking to expand their power over the Public.
This makes you a TRAITOR. Not just to our Country, but to the stated goals of this website. You are no less than an anti-gun hack bent on trolling these threads constantly. I don't care how much money you are contributing or what legal decisions Jim has had to take into consideration in allowing blatant trolls like you to continue posting here.
Your very presence disgusts me. You are antithetical to everything FreeRepublic represents.
Well said.
Notice that once again we are treated to the 'majority rules' socialistic point of view in rebuttal, - claiming that the representatives who pass these laws have the power to prohibit mines, flamethrowers, machine guns, whatever.
Never mind that this power is specifically prohibited to States/Feds in the 2nd and in the 10th.
Socialist say you have the right to defend yourself, but what makes you think that you have the right to plant mines in your front yard or booby trap your front door or use a flamethrower to do so? If you want to live in a cabin above the tree line like some Jeremiah Johnson, I could give a FF what you do. Buy you come down off the mountain to live among society, you play by the rules of that society.
[Never mind that constitutional rules are being infringed by your representatives in the name of 'society']
Communitarian's say you have no inalienable right to defend yourself with a machine gun. Your state may protect your right to defend yourself with a weapon. If they do, they will define when and where and how that weapon may be used. You shoot a bad guy in the back as he's running away from you, you may be arrested and thrown in jail. Dem's da rules.
Never mind dat many of 'da rules' are blatant violations of our individual rights.
-- Or that States have no power to define when and where and how what weapon may be used to protect your right to defend yourself.
Listen to the socialist's who don't give a "FF" that your State is obligated to support/defend a Republican Form of Government.
No, but they do today, except for children. So what?
I seem to recall that only white, male, citizen landowners voted in 1792. I'm wrong?
So where is that specified in the Constitution? So only militia members can vote? Only voters can be in the militia? Which is it? Oh wait, neither, because YOU MADE THIS UP.
The people are the citizens, a collection of individuals who each and all have rights recognized by the Constitution. Now I acknowledge that in the past some people have had have their rights denied for various reasons, but we have been correcting that over time. So now women and minorities are enfranchised, and 45 is no longer old. Deal with it, but don't try to redefine the plain meaning of words.
If you feel that my reply was "irrational", it is because I was responding to an irrational idea to begin with. IIRC, our statist friend has on more than one occasion attempted to say that the 2nd Amendment protects the "right" of the National Guard to keep and bear arms. Of course, the National Guard, as part of the Federal government has no rights; it only has powers. If we were to continue the code word game, that would mean that "the People" = "the States" = "branches of the Federal government". Furthermore, the "Bill of Rights" becomes a "Bill of powers" granting powers to the Federal government rather than recognizing the rights of the People and the States.
I'm not sure how to rationally respond to that. : )
Props to Baba Wawa
Bump.
Yet you seem to admit that the very "pre-existing" right to which we are referring, is the right that shall not be infringed in the Second Amendment. The Second Amendment doesn't create a right. If it doesn't create a right, then how do you justify suggesting that it only protects a part of the right to which it refers?
I’m not the only one to make such an observation. Many of FR’s best 2A supporters outright refuse to discuss anything with such blatant trolling.
So what? Geez Louise. You just got finished saying that "the people" meant "all citizens" and now you concede that it didn't mean women and children and you say, "So what?" That doesn't bother you?
"The people are the citizens"
Here we go again. You have no shame.
"Now I acknowledge that in the past some people have had have their rights denied for various reasons"
Yes, it's possible that their rights were unconstitutionally denied for 200 years. Then again, it's possible that THEY NEVER HAD THE RIGHT TO VOTE. What do you think is more likely?
"So now women and minorities are enfranchised, and 45 is no longer old"
That is correct. The definition of "the people" has changed over time. But the Founder's original intent, the Founder's original meaning of "the people", were those white, male, citizen landowners who were entitled to vote and formed the group from which some were selected for Militia duty.
You are the one so fond of referring to various federal court rulings that are consistent with a power of Congress to infringe the individual right to keep and bear arms.
Let's get on the record the following: "robertpaulsen is of the opinion that the Second Amendment is not a bar to Congress disarming an 85-year-old woman living alone in her home. That the Founders did not intend to deprive Congress of that power."
I already stated my opinion that such an 85-year-old woman would be among "the people" in the Second Amendment. Slaves were not among the people at the time of our nation's founding, but their right to keep and bear arms at such time as they were emancipated was clearly stated in Dred Scott.
I thought the 4th was clearer than the 2nd. And they sure managed to piss all over that one.
Seems you have plenty of time to gossip behind my back -- take a minute or two and have the courtesy to respond.
Are you being purposely deceitful? The Second Amendment can in no way be interpreted as a mandate to offer protection of the RKBA. It is simply a prohibition on infringement. It is the Fourteenth Amendment which provides a mandate to prevent action by the States, which ought to include preventing action with respect to the immunity from infringement of the right to keep and bear arms.
Indeed, I'm one of those who formerly was able to make such observations.
I'm amazed he 'allows' you to post to him. Could it be that the mods are no longer supporting a trolls 'right' to be protected?
There is an individual RKBA. That right is protected by each state from state infringement.
The second amendment protects the RKBA as part of a Militia. That right is protected from federal infringement.
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