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 ...
Excerpted due to length.
I’m hoping for the USSC to make a clear ruling against gun control, but I’m expecting them to weasel out of the broader issue by tailoring a narrow ruling limited to either just Washington DC or even only to Mr. Heller himself.
Having read the principals’ briefs—I thought that the respondent’s case was persuasive on the interpretation of the preamble and the enacting language. The historical analysis was fascinating. Interestingly, Gura and Levy did not respond to the social policy arguments posed by the petitioner.
This is a Court that does not wade into policy issues nor does it decide issues that it does not need to decide. It has recently in a Justice Kennedy opinion done a painstaking analysis of statutory construction and linguistics. So, I think, on the basis of statutory construction, it will find the D.C. ban unconstitutional. The question is whether there is a bright line as to what guns can be considered included within the meaning of the Second Amendment? That question has been raised.
"A sword never kills anybody; it's a tool in the killer's hand." (Seneca)
This applies also to gun. Gun ownership saves lives.
I won’t confuse what I want the outcome to be with what it may be. I’m on pins & needles and don’t have a prediction.
Me too. I hope like the dickens it goes our way.
Consider a simple example. Suppose that a college dean announces: "The teacher being ill, class is cancelled." Nothing about the dean's prefatory statement, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected.--
--excellent analogy--
I hope the last thing SCOTUS considers is the issue of social statistics. The 2A wasn’t contingent upon future crime stats.
Since the gun ban affects all DC citizens, can they actually limit a ruling to an individual?
Bang
Tomorrow is going to be a great day in the history of our Republic. One of two outcomes are possible. Either the Court will decide that the 2nd Amendment to the constitution does in fact guarantee the right to keep and bear arms in an unfettered manner, or; the day will become known as that moment in time where all those who swore an oath to support and defend the Constitution decide whether that oath has meaning or not.
I prefer the first outcome. The latter reminds me of the day when I sat on the edge of a rack with my sea bag packed and waiting for the order to board transport to a foreign shore. That day I decided the oath had not expired and that I would be willing to sacrifice my very life if need be to defend our Constitution.
Semper Fi
An Old Man
When I read that, I knew for certain that Nelson Lund (the author) did not read the DC Court's ruling or any of the amici curiae briefs filed in the last two months....
The author want to throw out Miller because the opinion of the court doesn't fit his interpretation of the second amendment. How utterly convenient.
Yeah, the Miller court concluded that only Militia-type arms are protected by the second amendment. Assuming that these arms are only protected for Militia members, the court opinion makes perfect sense.
The author, however, believes the second amendment protects an individual right outside of a Militia. But, when applying Miller, we end up with "an individual right to keep and bear Militia-type weapons like rocket launchers.
Uh-oh. Better scrap Miller.
http://www.abajournal.com/magazine/district_of_columbia_v_heller/
Miller’s definition of the “Militia,” then, offers further
support for the individual right interpretation of the Second Amendment. Attempting to draw a line between the ownership and use of “Arms” for private purposes and the ownership and use of “Arms” for militia purposes would have been an extremely silly exercise on the part of the First Congress if indeed the very survival of the militia depended on men who would bring their commonplace, private arms with them to muster. A ban on the use and ownership of weapons for private purposes, if allowed, would undoubtedly have had a deleterious, if not catastrophic, effect on the readiness of the militia for action. We do not see how one could believe that the First Congress, when crafting the Second Amendment, would have engaged in drawing such a foolish and impractical distinction, and we think the Miller Court recognized as much.
I prefer your first outcome as well. Because the second outcome makes a civil war or an insurrection almost a certainty.
Semper Fi
Wrong! For a PhD, this guy is surprisingly ignorant.
Article I, Section of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ...". In 1789, women didn't vote. They were not part of "the people".
If the author had read the Parker decision (which one would think he had) he would have come across this:
"This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today .... To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” ...
Embarrassing.
BWAHAHAHAHAHA! Throwing a bone to the liberals.
The author goes on and on, twisting and torturing and parsing the second amendment to somehow get it to say what he wants it to say. Thousands of words of explanation and justification and interpretation.
Yet when it comes to the very plain language of the second amendment -- the right of the people to keep and bear arms -- he doesn't understand it. He says, well, that doesn't mean EVERY arm.
Oh, really? Where does it say that? Does his copy of the second amendment say "most arms"? "Almost every arm"?
The second amendment says nothing about private purposes and makes no such distinction.
Another very significant grammatical feature of the Second Amendment is that the operative clause ("...the right of the people to keep and bear Arms, shall not be infringed") is a command. Because nothing in that command is grammatically qualified by the prefatory assertion, the operative clause has the same meaning that it would have had if the preamble had been omitted or even if the preamble were demonstrably false.
Bingo! Case closed, from a logical point of view. The problem is that too many people, including Supreme Court justices, don't understand basic rules of grammar, or, in the case of liberals, don't care because the Constitution is an evolving document.
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