"Will "simple ordinary firearms" defend the citizen from swat teams with flash-bangs and full auto weapons?"
The answer to that question is not a pretty one for either side.
Posted on 03/20/2008 5:35:21 AM PDT by cbkaty
D.C. firearms ban can't negate constitutional right
Does the Constitution grant individuals the right to bear arms, or is that right reserved exclusively for members of a "well-regulated militia"? After 69 years of silence on the Second Amendment, the U.S. Supreme Court took up that question Monday in the historic case of District of Columbia v. Heller, a challenge to the District of Columbia's ban on all functional firearms.
"The Supreme Court heard arguments about whether or not the Second Amendment actually means anything," said Alan Gura, my co-counsel in the case ... Does it protect a collective right of militias, Gura asked, "or does it do what most Americans understand it does? Guarantee an individual right of American citizens to defend themselves and their families, in their own homes, with simple, ordinary firearms, including handguns."
I helped bring this case to court on behalf of six Washington, D.C., residents who want to keep functional firearms in their homes to defend themselves and their families should the need arise. But Washington, D.C.'s law bans all handguns not registered before 1976 and requires that lawfully owned shotguns and rifles in the home be kept unloaded and either disassembled or bound by a trigger lock at all times. There is no exception for self-defense. D.C., often known as the "murder capital of the nation," cannot defend its citizens and will not allow them to defend themselves.
This case requires, at a minimum, two findings from the Supreme Court: First, the Second Amendment secures an individual right to keep and bear arms — not a right limited to persons engaged in state militia service. Second, the District's ban on all functional firearms violates that individual right and is, therefore, unconstitutional.
An outpouring of modern scholarship — much of it coming from liberal constitutional scholars like Laurence Tribe at Harvard and Akhil Amar at Yale — supports the view that the right to keep and bear arms is an individual right. After all, the Second Amendment is in the Bill of Rights, the part of the Constitution explicitly designed to secure individual rights. And the text of the amendment refers to the "right of the people" — the same people mentioned in the First, Fourth, Ninth and Tenth amendments. It is inconceivable that the Framers — seeking to provide Americans with a means to resist tyrannical government — would fashion a right that can be exercised only in the context of a militia that is under government control.
But can D.C.'s ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question hinges on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, D.C.'s ban is impermissible.
Even if the court believes that a ban on an entire class of protected weapons can sometimes be justified, it must conclude that regulations like those in D.C. are subject to strict judicial scrutiny: Government, if challenged, would have to demonstrate that restrictions serve a compelling state interest, will be effective at attaining the desired goal and do not unnecessarily compromise Second Amendment rights.
That three-part standard has considerable teeth, but will not foreclose legitimate gun regulations, such as sensible registration requirements, proficiency testing, instant background checks, bans on massively destructive weapons and prohibitions on gun ownership by children, mental incompetents and violent felons.
The court rigorously scrutinizes all regulations that infringe on personal "fundamental" rights — defined as those rights "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history and traditions." Express provisions in the Bill of Rights are certainly fundamental, and the right to keep and bear arms — occasionally a matter of life-and-death significance — is no exception.
If the District's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it would mean that the Supreme Court intends to rubber-stamp just about any regulation that a legislature can dream up — no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny.
That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.
At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right. Banning handguns outright is quite plainly unconstitutional.
Levy is co-counsel to Gura and senior fellow in constitutional studies at the Cato Institute, in Washington, D.C.
Of the multitude of threats to the American citizen, one our founders addressed was the possibilty of "government gone wild"
Will "simple ordinary firearms" defend the citizen from swat teams with flash-bangs and full auto weapons?
here in Houston the recently ousted (by scandal, not ballots) Republican DA Chuck Rosenthal disagreed with the right to bear arms. He challenged the citizens to do as the state legislature voted...
He said that he would prosecute any citizen carrying a gun in his car without a concealed carry permit as a felon. I don’t know if he ever GOT his case he wanted to challenge the state law but it was a horrible abuse of power to make someone have to defend himself on felony charges when the state legislators did not find it to be a felony and even worse to have to be forced to APPEAL the decision to the state level.
Good riddence, RINO.
I have an office mate who keeps wanting to drag me into this debate. He is, of course, in favor of total elimination of guns in the hands of private citizens. I think next time he mentions it, I’ll ask what part of the right to privacy which the liberal justices found in Roe v. Wade, what part of that concept allows the DC government to control whether you have trigger locks on the legally registered guns in your home?
The people who talk about the second amendment applying to only “simple firearms” never have anything to say to the fact that privateering is legal.
In order to stop the use of such tactics in the long run, the citizen doesn't have to win; he just has to make it too risky to be worth attempting.
The answer is "C" None of the above.
The constitution prohibits the government from violating a basic, pre-existing, inalienable human right.
But thanks for playing.
Amendment IXWhat the 2nd does is to (1) mandate that the States provide militia training at arms to all people, and (2) further vouchsafe the common law right to hold and bear arms from both federal and state infringements upon it.The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
In other words, to be part of this Union of States, a State must provide to the people the very means and training of fighting off the State and Federal forces when such forces become unbearably tyrannical.
In the human body this is the equivalent of the white blood cells the disbursed through the body cancer killing systems.
Thus the people must be able to have and use fearsome weapons.
Without the 2nd ammendment there would be no 1st ammendment!
And taking the question a step further, why would a state militia need permission to bare arms ? That interpretation is absurd on its face.
What is sensible about registration? Why are people on our side making arguments like this? If you have to pass a test to do something, then it isn't a right, it's a privilege, like driving on public roads. I don't need to register my car or have a driver's license to legally drive on my own property, why should I require a permit or pass a proficiency test to own a gun in my house?
And what is "massively destructive" about a shart-barrel rifle, or a silencer? Wouldn't a quiet gun be safer than a loud gun, from a hearing safety point of view?
That exact point was made in some of the amicus briefs, filed on our side. If the main text of the Constitution already provisioned for states equipping their militia, then what exactly could the Second Amendment have possibly been talking about?
Article 1 Section 8 of the Constitution defines the cases in which the Congress may call on the state militias to act under the President’s powers as commander in chief. To wit... “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Since militias are “necessary” by the plain text of the 2nd Amendment, arms needed to perform law enforcement and military service, are the ones specifically protected from infringement of individuals rights to own and transport.
The historical English right to keep and bear arms was significantly restricted by religion and income. Our right has no such limits - and this difference is deliberate. Further, our Constitution specifically forbids titles of nobility, which under the English system helped define which types of arms you could possess.
One thing you can say with certainty, was that the Founders NEVER intended the government to have a monopoly on the possession and transportation of arms. Richard Lee was a signer of the Declaration of Independence, militia colonel, and Senator. He said “The mind that aims at a select militia, must be influenced by a truly anti-republican principle.” What we have now is a select militia (National Guard), and true to Lee’s prescient statement, the minds behind this situation are truly acting against our Republic.
We have for far too long, allowed ourselves to manipulated by the press, and by political elites into giving up our birthright in the name of “security.” We are in actual fact, less secure, because government itself, being composed of humans, who are flawed and tempted to power, now has far more military might than the citizens do. We have some, yes, and it would be difficult for the government to impose its will by force, say as is now done in Tibet. Unfortunately, the more power the government gains, the more tempted it will be to use it. Of course all the reasons will be “proper,” but the loss of our fundamental freedom will be the same. When the government demonstrates it is unworthy of our trust, it will be too late for us to redress the balance.
The answer to that question is not a pretty one for either side.
Re: Registration
A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’
— MURDOCK V. PENNSYLVANIA 319 US 105 (1942)
“Will ‘simple ordinary firearms’ defend the citizen from swat teams with flash-bangs and full auto weapons?”
In a word: Yes. A determined people can accomplish anything. History is full of lightly-armed people defeating a more powerfully-armed, but smaller group. How to get some “flash bangs” and full auto weapons for themselves? The people just need to take them away from those that have them, either by stealing them or incapacitating those who have them, and then taking them. Where there’s a will, there’s a way.
I haven't received my training. The state owes me!
Exactamundo! I cringe every time I hear someone, especially on our side, say constitutional right to bear arms or free speech or assembly. We really have to re-educate the entire country on what the Bill of Rights actually is and why we have it and how it was intended.
That’s not a good ruling. The Constitution does not grant rights. Our rights are from G-d. The Constitution says what the Federal government is chartered to do (enumerated powers), what its structure is, and especially calls out some rights for special protection or for guarantee from BOTH federal and state impositions upon them. Note that by joining the Union that the STATES where required to respect those named rights.
Where in the constitution does it say that simple police forces have the right to bear military weapons?
If a situtation requires military firepower, it requires National Guard intervention. They do not exist stateside merely to secure flood barriers and escort school children into segregated schools.
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