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The Second Amendment Comes Before the Supreme Court: The Issues and the Arguments
The Heritage Foundation ^ | March 14, 2008 | Nelson Lund, Ph.D.

Posted on 03/17/2008 10:45:40 AM PDT by EdReform

The United States Supreme Court has decided only one significant case involving the Second Amendment, and that was almost 70 years ago. Next week, the Court will return to the issue when it hears arguments in District of Columbia v. Heller. This is a test case brought by a D.C. special police officer who carries a gun while on duty. Under D.C.'s extremely restrictive gun control laws, he is forbidden to keep a handgun, or an operable rifle or shotgun, in his home.

The U.S. Court of Appeals for the D.C. Circuit held that these laws violate the Second Amendment. The court concluded that handguns are lineal descendants of founding-era weapons and are still in common use today, so they may not be banned; the court also held that D.C.'s requirement that guns be stored in a mechanically disabled condition is unconstitutional because it prevents them from being used for self-defense.1 The Supreme Court is now reviewing that decision.

The parties presenting arguments next week offer three different interpretations of the meaning of the Second Amendment. D.C.'s argument--that the Second Amendment protects a right to arms only in service of a government-organized militia--does not stand up to historical analysis or textual scrutiny. Heller's position--that the Amendment establishes an individual right to keep ordinary weapons for self protection--is sound but not persuasively argued. And the Bush Administration's position--recognizing an individual right but leaving the government with some large and undefined power to curtail the right--is dangerously vague and legally weak.

Careful textual analysis, along with the relevant historical context, yields a remarkably clear, sensible, and workable answer to the question presented in this case. The Amendment protects an individual right to keep operable firearms for self-defense, which cannot be taken away by federal law...


(Excerpt) Read more at heritage.org ...


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events; US: District of Columbia
KEYWORDS: banglist; dcgunban; heller; heritagefoundation; parker; secondamendment
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To: thackney
"Do you claim that 25 percent of the entire population was in the militia?"

It was around one in six or 17% at the time who were eligible.

"Or was it intended for citizens outside of the militia?"

Was what intended for citizens outside of the militia? Second amendment protection? No, why would it be?

The Founders wanted to protect the formation of a state Militia from federal infringement. If Congress refused to arm the Militias, the Founders wanted to ensure that they could arm themselves.

That was the whole purpose of the second amendment. Individual RKBA was protected by each state.

121 posted on 03/18/2008 12:24:51 PM PDT by robertpaulsen
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To: robertpaulsen
To oblige the great body... would be a real grievance

That is an argument against requiring the citizens to be armed. That is different from not permitting them to be armed.

a Militia member had SIX MONTHS to acquire a smooth-bore musket

That was not a requirement of all militias.

122 posted on 03/18/2008 12:25:24 PM PDT by thackney (life is fragile, handle with prayer)
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To: 45Auto
My guess is...half of the sheeple will give their guns up....and a portion will turn in their grandpa/mom/neighbor/etc....

The folks that are left will ALL be criminals in the eyes of the state. Of those....3/4's will actually BE criminals...the others will be folks like you and I.

123 posted on 03/18/2008 12:27:04 PM PDT by Osage Orange (Hillary's heart is darker than the devil's riding boots.................)
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To: thackney
"Where are the arms for those constituted differently from the militia coming from?"

Sounds to me like he's talking about a police department -- or SWAT team. The arms would come from the community.

124 posted on 03/18/2008 12:27:56 PM PDT by robertpaulsen
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To: robertpaulsen
"Do you claim that 25 percent of the entire population was in the militia?"

It was around one in six or 17% at the time who were eligible.

Then Madison was referring to more than the Militia when he spoke of number able to bear arms.

That was the whole purpose of the second amendment. Individual RKBA was protected by each state.

No. The Bill of Rights contains the phrase "right of the people" many times. The meaning does not change back and forth for who that represents. It is not a protection of state government. It was protection of the right of the people.

125 posted on 03/18/2008 12:34:08 PM PDT by thackney (life is fragile, handle with prayer)
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To: robertpaulsen
"Yes. And in 1792, who exactly were "the people"? Everyone?"

The people are the same people that are mentioned in the 1st Amendment, whose right and Freedom of religion, speech and assembly were not to be infringed. Only an accurate description of the people matters. An accurate description includes blacks and women, all else is arbitrary BS, that's been addrressed and corrected since 1792.

"Once you figure that out, compare your answer to those who qualified to be in a Militia in 1792. They should match. If they don't, go back and start over."

Not going to do that, nor will the corrections made since then regarding who is "people" be reversed. If anyone wishes to deny the rights of my fellows as was done in 1792 on arbitrary grounds, on the basis of sex, skin color, or other characteristic, I will oppose them. The same applies to those that wish to deny the rights and Freedom of my fellows in general. The days of Dred Scott and Plessy vs Ferguson and are long over.

126 posted on 03/18/2008 12:34:27 PM PDT by spunkets ("Freedom is about authority", Rudy Giuliani, gun grabber)
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To: robertpaulsen
The arms would come from the community

The community is the people.

127 posted on 03/18/2008 12:34:47 PM PDT by thackney (life is fragile, handle with prayer)
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To: thackney
"That is different from not permitting them to be armed."

Geez Louise. Here you just got finished trying to convince me that arming everyone is important because their ranks will be drawn upon as needs increase.

Now you're saying, "Well, actual arming is optional". WHAT?!? How is merely "permitting" them to be armed preparing them for Militia duty .... if they choose not to arm?

"That was not a requirement of all militias."

That was in the Militia Act of 1792. I don't care if it was or was not a requirement of all militias. What's important to note is that it is assuming people don't already have the necessary arms laying around the house.

128 posted on 03/18/2008 12:39:31 PM PDT by robertpaulsen
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To: robertpaulsen
Here you just got finished trying to convince me that arming everyone is important because their ranks will be drawn upon as needs increase.

No, I did not claim that arming everyone is important. I am supporting the same idea as the founders, that every citizen has the right to bear arms and is not limited to only members of the militia.

That was in the Militia Act of 1792

The Bill of Rights was written and ratified before that. It was not a requirement at the time.

129 posted on 03/18/2008 12:44:03 PM PDT by thackney (life is fragile, handle with prayer)
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To: robertpaulsen
(1) is protected. (2) is not.

Maybe you should have listened to the Supreme Court hearing today. You're wrong and about 8 Justices are about ready to rule on it.

130 posted on 03/18/2008 12:44:37 PM PDT by Centurion2000 (su - | echo "All your " | chown -740 us ./base | kill -9 | cd / | rm -r | echo "belong to us")
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To: thackney
"Then Madison was referring to more than the Militia when he spoke of number able to bear arms."

First of all, in your quote, Madison is talking about a federal standing army, NOT a Militia.

Second, he's estimating that the largest standing army that can be carried (I assume he means afforded) is 1/100th of the entire population (or 1/25th of those in the population who are eligible to carry arms).

He then compares that small number to the large number of those in a Militia who would oppose them.

131 posted on 03/18/2008 12:50:03 PM PDT by robertpaulsen
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To: robertpaulsen
"Then Madison was referring to more than the Militia when he spoke of number able to bear arms."

First of all, in your quote, Madison is talking about a federal standing army, NOT a Militia.

When Madison wrote "one twenty-fifth part of the number able to bear arms", the number able to bear arms is not a federal standing army or the militia. It is a large number of people than either of those.

132 posted on 03/18/2008 1:00:16 PM PDT by thackney (life is fragile, handle with prayer)
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To: robertpaulsen
Sorry, typo It is a large larger number of people than either of those.
133 posted on 03/18/2008 1:01:30 PM PDT by thackney (life is fragile, handle with prayer)
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To: EdReform
This weblog for conservative philosophers might help.


To will the end is to will the means. So, to will one's defense is to will the means to one's defense. Therefore, if it is morally permissible to will one's defense, then it is morally permissible to will the means to one's defense. I grant that qualifications may be needed.
Arguably, felons ought not have the right to purchase firearms. A felon either forfeits his right to self-defense, or has that right overridden by the community's right to be safe from his predation.

(4) is obviously true pending some obvious qualifications that I left out for the sake of brevity, the soul of wit. A handgun is an effective means of self defense, but not in all circumstances, only if the defender is properly trained in the use of firearms, etc. (as opposed to the individual qua member of some collective such as a police force or military unit) has an individual right to posses firearms for the purpose of defending his own life. The existence of such an individual right does not entail that it is unlimited. Thus if I have a right to firepower sufficient to my self-defense, it does not follow that I have a right to firepower sufficent to lay waste to a city. One non sequitur to avoid is this:

ergo, the right to keep and bear arms is a collective right.

Arguments like the foregoing make appeal to people's reason. Like all my arguments, it is directed to open-minded, reasonable people who are doing their level best to form correct opinions about matters of moment.
You decide whether I have been employing right reason. But if you wish to criticize, just be sure that you engage what I have actually written and not something you have excogitated on the occasion of skimming my post.



134 posted on 03/18/2008 1:01:53 PM PDT by Yosemitest (It's simple, fight or die.)
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To: robertpaulsen

“Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.” - James Madison


135 posted on 03/18/2008 1:06:32 PM PDT by Triple (Socialism denies people the right to the fruits of their labor, and is as abhorrent as slavery)
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To: robertpaulsen

“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms.” - James Madison


136 posted on 03/18/2008 1:08:28 PM PDT by Triple (Socialism denies people the right to the fruits of their labor, and is as abhorrent as slavery)
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To: EdReform
This weblog for conservative philosophers might help.



137 posted on 03/18/2008 1:08:54 PM PDT by Yosemitest (It's simple, fight or die.)
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To: All

Sorry for the double post.


138 posted on 03/18/2008 1:10:10 PM PDT by Yosemitest (It's simple, fight or die.)
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To: robertpaulsen

I’d say Madison is very clear. The right to bear arms is for americans/citizens/people, and for possible confrontation with a government/standing army, including the government he was putting in place.

The foundaer were wary of governments and standing armies.


139 posted on 03/18/2008 1:14:54 PM PDT by Triple (Socialism denies people the right to the fruits of their labor, and is as abhorrent as slavery)
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To: robertpaulsen

“Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.” - James Madison

“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms.” - James Madison


140 posted on 03/18/2008 1:15:50 PM PDT by Triple (Socialism denies people the right to the fruits of their labor, and is as abhorrent as slavery)
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