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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: Ravenstar
"“The People” are the same in the first, second and fourth amendments so you can’t pick and choose how you want define it."

That is correct. Whenever you see the phrase "the people" it means the enfranchised body politic (ie., the voters).

In 1792 they were adult, white, male citizens. Today, "the people" also includes women and non-whites. It does not mean everyone or even every citizen.

81 posted on 03/18/2008 8:11:48 AM PDT by robertpaulsen
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To: Eaker

I think RP has painted himself into a corner and knows it


82 posted on 03/18/2008 8:13:42 AM 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 Amendment process is/was used to correct previous omissions by the founders or to correct bad Amendments. The 18th on Prohibition, as an example.

The 14th signified the begining of some of that correction from the 2/5ths of a citizen for a slave, or free black. It also signified the equality of man and woman in the judicial process, BUT still denied her the right to choose her leaders. That was corrected in the 19th Amendment.

As you said in 1792, 'the people' signified white, free, males. The founders must have realized this would change over time. A lot of them could not and would not ever support slavery, and knew that time would bear that stance out. Same with women. Without that support, a lot of the founders would not have even attempted this great experiment. And that too had to weigh heavily on the mind of Madison as he sought a way to accomodate the culture of the day against what was to come later.

By using the term 'the people' he provided for inclusion of ALL citizens, man or woman in the rights of being Americans. Using the Amendment process was the means of making that foresight correctable.

Otherwise, why is the phrase 'the people' used, and not 'white, Anglo males'? It would define exactly who, and not allow for any other interpretation.

83 posted on 03/18/2008 8:15:35 AM PDT by Pistolshot (Remember, no matter how bad your life is, someone is watching and enjoying your suffering.)
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To: Triple
"Not so fast - Private militias, without “State” appointments of officers are equally valid."

"Valid" in what sense?

I'm not sure the states even recognize them -- certainly not when it comes to arming them. Wasn't there a controversy involving the Michigan Militia or Montana Militia?

"Please back your extraordinary claim that all valid militias had state appointed officers"

The militia of the U.S. Constitution (Article I, Section 8) is the same militia as that of the second amendment. The militia of the U.S. Constitution (Article I, Section 8) specifies that officers are to be appointed by each state.

84 posted on 03/18/2008 8:22:23 AM PDT by robertpaulsen
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To: Triple
Up until the Militia Act of 1903, also known as the Dick Act, state militias either elected their own officers or had them appointed by the governor.

A perfect example of this is the 1st Volunteer US Cavalry.
Colonel Leonard Wood commanding. Wood had resigned his regular army commission to head this ad hoc unit with Teddy as Lt Colonel.

Milita or volunteer units at the outset of the War Between the States were all officered by elected or appointed men from the ranks. One of the reasons so many of the early battles were defeats for the Union is the lack of trained officers in command of what can really be considered irregulars.

The Dick Act corrected a lot of issues that dealt with commissioned, breveted, and volunteer officers into one heirarchy of officer corp.

85 posted on 03/18/2008 8:23:51 AM PDT by Pistolshot (Remember, no matter how bad your life is, someone is watching and enjoying your suffering.)
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To: Pistolshot
"By using the term 'the people' he provided for inclusion of ALL citizens, man or woman in the rights of being Americans."

I agree. The use of "the people" allows the phrase to be re-defined by the amendment process or by judicial interpretation. "All persons" or "all citizens" are pretty much absolute terms.

Still, if the amendment was to include self defense and hunting, why deny protection to "all citizens" and limit it to "the people"? Odd, don't you think?

86 posted on 03/18/2008 8:36:33 AM PDT by robertpaulsen
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To: robertpaulsen
Odd, don't you think?

Not really. Jay used 'the people' heavily in The Federalist Papers(#2) as did both Madison and Hamilton.

The term was a generalization of all those living within the colonies and bears out the inclusion in the BOR as a definition of all citizens.

The culture of the time was the man is in charge of all affairs of the family, and this evolved over time to the point of needing correction.

87 posted on 03/18/2008 8:52:12 AM PDT by Pistolshot (Remember, no matter how bad your life is, someone is watching and enjoying your suffering.)
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To: robertpaulsen
I agree. The use of "the people" allows the phrase to be re-defined by the amendment process or by judicial interpretation. "All persons" or "all citizens" are pretty much absolute terms.

If the objective is to attribute to the phrase the closest possible meaning to the origial intent of the authors, the the interpretion should be based first on whatever available writings there are by the authors that expound or expand on thier opinions of who should be bearing arms. Absent that, you can go looking for analogs in other places in the Constitution or subsequent amendments for clarification, but don't go looking for implicit evidence first when there is explicit evidence available. IMHO.

88 posted on 03/18/2008 8:56:49 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: robertpaulsen

“The Founders defined a well regulated Militia. A private militia does not qualify.” - RP

Post your source for this extraordinary claim - or withdraw it.


89 posted on 03/18/2008 9:08:03 AM 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; Pistolshot; All
You guys are part of what has been degrading FR lately. This incessant back and forth bickering would be funny if it weren't so sad.

From the book (in my hands right now):


MANUAL
OF THE
MILITIA LAWS
OF THE
UNITED STATES,
AND OF THE
STATE OF MICHIGAN
ALSO
RULES AND REGULATIONS
PRESCRIBED BY THE STATE MILITARY BOARD
WILLIAM SHAKESPEARE
BY DIRECTION OF THE STATE MILITARY BOARD
1883



Heres the Federal part:

UNITED STATES MILITIA LAWS
Title XVI, Revised Statutes US
Sec 1625: Every able bodied male citizen of the respective States, resident therein, who is of the age of 18 years, and under the age of 45 years, shall be enrolled in the militia.


Heres the Michigan law:

THE MILITIA LAWS OF THE STATE OF MICHIGAN,
as amended and in force May 1, 1883

(828) Sec 1. The people of the State of Michigan do enact That all able bodied white male citizens, between the ages of 18 and 45 years, and not exempted by the laws of the United States or of this State, shall be subject to military duty.


It is CLEAR, CRYSTAL CLEAR, from what this document says that the members of "a well regulated militia" mentioned in the introductory clause of the second amendment ARE NOT THE SAME as "the people" as mentioned in the main clause.

The main clause is greatly expansive over the preamble.
90 posted on 03/18/2008 9:11:20 AM PDT by djf (She's filing her nails while they're draggin the lake....)
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To: robertpaulsen

You are overlooking Title 10, chapter 13, sec. 311 of the current United Staes Code.


91 posted on 03/18/2008 9:15:17 AM 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: djf
This incessant back and forth bickering would be funny if it weren't so sad

The idea of cognizant debate is lost on you. What is sad, is you do not understand that.

Door is to your left, thanks for playing.

92 posted on 03/18/2008 9:15:48 AM PDT by Pistolshot (Remember, no matter how bad your life is, someone is watching and enjoying your suffering.)
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To: Triple
"Post your source for this extraordinary claim - or withdraw it."

I already backed up my claim that all valid militias had state appointed officers. If your private militia doesn't have state appointed officers, the second amendment doesn't protect it.

I'm not saying private militias don't exist or that they aren't allowed to exist. I'm simply saying the second amendment doesn't apply to them.

93 posted on 03/18/2008 9:32:17 AM PDT by robertpaulsen
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To: djf
"It is CLEAR, CRYSTAL CLEAR, from what this document says that the members of "a well regulated militia" mentioned in the introductory clause of the second amendment ARE NOT THE SAME as "the people" as mentioned in the main clause."

Since it is CLEAR, CRYSTAL CLEAR to you, please tell me the differences. I've been stating on this thread and others for the past year that "the people" were adult, white, male citizens. Your post confirms this, yet you say WE are degrading the thread?

Seems to me that "we" are the only ones on this thread who know WTF we're talking about.

94 posted on 03/18/2008 9:41:16 AM PDT by robertpaulsen
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To: Triple
"You are overlooking Title 10, chapter 13, sec. 311 of the current United Staes Code"

You are overlooking the wording of the second amendment which refers to "a well regulated Militia", not an "unorganized militia".

I'm not denying the existence of the unorganized militia or saying they have no right to exist. They do. I'm simply saying the second amendment does not protect their right to keep and bear arms. Maybe their state does, I don't know.

95 posted on 03/18/2008 9:48:04 AM PDT by robertpaulsen
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To: robertpaulsen; djf

Let us make this simple for you RP. All militia belong to the people however not all people belong to the militia. Similarly, All Catholics are Christians but not all Christians are Catholic! Do you perceive what is meant in the previous statement!?! The protection is afforded to a group larger than that mentioned as one of the reasons for the Amendment! The people means all the people even if they are not members of the militia.

Ravenstar


96 posted on 03/18/2008 9:53:34 AM PDT by Ravenstar (Reinstitute the Constitution as the Ultimate Law of the Land)
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To: robertpaulsen

“I already backed up my claim that all valid militias had state appointed officers. If your private militia doesn’t have state appointed officers, the second amendment doesn’t protect it.

I’m not saying private militias don’t exist or that they aren’t allowed to exist. I’m simply saying the second amendment doesn’t apply to them.” RP

Cite your source - The federalist papers would be acceptable.

So far, you appear alone in the claim that in order to be valid a militia must have state appointed officers.


97 posted on 03/18/2008 9:53:35 AM 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 Founders defined a well regulated Militia. A private militia does not qualify.” - RP

Post your source for this extraordinary claim - or withdraw it.


98 posted on 03/18/2008 9:54:42 AM 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: Ravenstar

Thank you.

That’s what I meant.
That’s what it says.


99 posted on 03/18/2008 9:57:03 AM PDT by djf (She's filing her nails while they're draggin the lake....)
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To: djf

Agreed.

Ravenstar


100 posted on 03/18/2008 10:01:24 AM PDT by Ravenstar (Reinstitute the Constitution as the Ultimate Law of the Land)
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