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 ...
You lost out on the argument about whether or not “the people” = “the militia”
Now you are trying to shift it to ask me if the second amendment protects the rights of a two year old child to have a bazooka or something.
An eighth grader could debate better.
I’m done.
For example, your first quote is from Federalist 46. I'll put it in context:
"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."
“JUSTICE SCALIA:
I don’t see how there’s any, any, any contradiction between reading the second clause as a — as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed.
But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed.”
USSC oral arguments - Scalia
I agree. The second amendment was written to protect the right to keep and bear arms of those individuals who ARE part of a well regulated Militia from federal infringement. The Militia remains intact.
Drat! I thought I won! Are you sure? Can you recount the ballots please?
"Now you are trying to shift it to ask me if the second amendment protects the rights of a two year old child to have a bazooka or something."
Not at all. That would be silly.
I'm asking you if a two-year-old has a God-given inalienable right to self defense with a gun?
No, they don't vote. But that's not the question--you've skipped a step. They are "people" for the purposes of the clause, but just because they are people doesn't mean that they are entitled to vote.
The reason why is because we're not just dealing with the federal government. The states have governments, too, and the states were free to regulate elections as they saw fit, including, if they so desired, restricting the franchise. But that restriction doesn't mean that those groups aren't "the people" for purposes of that clause.
“the people” means men, women - citizens. The extremes you bring up would be restricted by either not being citizens or due process of law would then deny them that right. Do you even have in your understanding that the militia is a subset of the people! It is not the whole set! You probably have no idea what a Venn Diagram is.
Ravenstar
Wow - You previously claimed that the second amendment protected a “State Militia.”
Further - Scalia supports the view that individuals outside the militia have a right to arms “the people’s weapons” - something you also contested.
Your inconsistency and mental gymnastics are amusing.
Well I’ve been posting here for about 10 years so I have accumulated so many quotes. I have several files of them. Hope the SCOTUS does the right thing!
:^D
No the militias that fought the british did NOT have officers appointed by the state. This was the type desired to be preserved.
“JUSTICE SCALIA: They {meaning the british - triple} certainly didn’t want to preserve the kind of militia that America had, which was a militia separate from the state, separate from the government, which enabled the revolt against the British.”
I don't see Roberts, Scalia, Thomas, and Alito signing on to a decision which establishes such a low threshold of scrutiny on a Constitutionally protected right. Kennedy would have to join the four commies to end up with such a majority decision. Better would be if they agree with the DC Circuit but Roberts might be unwilling if it is not necessary to decide the case.
I think it likely that the Supreme Court will rule that the handgun ban is unConstitutional under ANY level of scrutiny and therefor they need not decide at this time what level is appropriate.
Who could state that a handgun ban is "reasonable" when every uniformed law-enforcement officer in the nation carries such an arm and is only justified in using it in the defense of himself or others, or in some jurisdictions to stop a fleeing violent felon; the same criteria that apply to citizens who are not members of law enforcement.
Article I, Section 8 of the Constitution: "(The Congress shall have Power ...) To provide for organizing, arming, and disciplining the Militia ...
This is at least the third time that you have failed to distinguish between Congress "doing" something and "having the power to do" something.
Our Founders were writing a Constitution to establish a government which, at that moment, had done NOTHING. Everything written into the Constitution was to describe the powers of a government which did not yet exist, or in the case of the Bill of Rights, the constraints on a government which would not be permitted to exist without such constraints.
That our Founders would give Congress the power to disarm them is ridiculous in the extreme. They had just risked everything of value they had including their lives to throw off a government which had claimed that very power.
You persist in formulating your opinions as if the colonists had petitioned the Crown for permission to form their own sovereign government and had been granted permission. That is not what happened. Many thousands of very noble people died to provide you your freedoms and you dishonor them with your nonsense.
And you are saying that people over 45 did not vote?
Perhaps you can demonstrate where "the people" who voted were not adult, white, male citizens? Perhaps, as you say, one or more states may have allowed women to vote? Or children? The insane? Non-citizens? Slaves, perhaps?
Or are you saying that "the people" of Article I, Section 2 are different than "the people" of the second amendment?
You say "the people" are the citizens. Very close. But Article I, Section 2 of the U.S. Constitution says that "the people" vote. In 1792, that would have eliminated women and children, since they weren't alowed to vote.
So, what does that leave us with? Adult, white, male citizens. They had the right to keep and bear arms. Just them. That's all.
That was less than 20% of the population at the time. If the second amendment protected guns for other reasons (like self defense and hunting), over 80% of the population didn't have the right protected for them.
Never. I have said that the "well regulated Militia" of the second amendment referred to a state Militia.
"Scalia supports the view that individuals outside the militia have a right to arms “the people’s weapons” - something you also contested."
Scalia didn't say "individuals outside the militia". He was referring to members of a milita -- that the way militias were destroyed was not by passing laws against them but by disarming those who formed the militia.
Close, it was slightly larger than 20%.
According to the 1790 Census, it was 807,312 free white adult males out of a total of 3,893,874.
By the way, that is group is about 300,000 larger than the figure we discussed for the militia.
http://fisher.lib.virginia.edu/cgi-local/censusbin/census/cen.pl?year=790
Nope. Are you saying people over 45 weren't in the Militia?
So, a little less, a little more than 20%. Let's call it 20% for sake of argument. That would be the percentage of the population in 1792 who were free white adult male citizens (who were called "the people").
Here's my point. Their right to keep and bear arms was protected by the second amendment. Only 20% of the population. Now, wouldn't you think that if the right was protected for self defense and hunting, the Founders would have protected it for more than 20% of the population?
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