Gun rights go to court

Dick Anthony Heller is a 66-year-old security guard who carries a handgun to protect the employees and property at the federal building where he works in Washington, D.C.

Because Heller also is a resident of the District of Columbia, he is prohibited from having a handgun in his home for self-protection.

Heller sued to overturn the city of Washington’s 1976 gun-control law that also requires all rifles or shotguns in D.C. homes to be disassembled or kept under trigger lock.

That amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The meaning of those 27 words, including how they are punctuated, has been argued, debated, cussed and discussed since the Bill of Rights was ratified on Dec. 15, 1791.

Actually, the wording of the Second Amendment was controversial and often changed from the time that founding father and leading Federalist James Madison proposed this compromise provision years earlier.

To the surprise of many observers, Heller won his lawsuit before the U.S. Court of Appeals for the District of Columbia Circuit when that court struck down the city’s gun law. Previous decisions of a similar nature around the country had gone the other way.

Now it is up to the U.S. Supreme Court to decide whether Heller has a constitutional right to keep a handgun in his home, located only a mile away from the court.

No one knows what the justices will rule when the decision is announced a few months from now, but Justice Anthony M. Kennedy, who now is watched as the deciding swing vote on the divided court, appeared to side with Heller’s argument in saying, “In my view, there’s a general right to bear arms quite without reference to the militia either way.”

Over the years, gun control advocates, gun owner groups and constitutional scholars have debated the meaning of “militia,” “the People,” “keep and bear arms,” “bear arms,” “shall not be infringed” and the significance of the two clauses along with the many changes the amendment went through before it was finally adopted.

During the arguments involving Heller’s case, Justices Antonin Scalia and Samuel Alito Jr. appeared to support Kennedy’s assertion that there is a general right for the people to own guns aside from the reference to a well-regulated militia.

Although Justice Clarence Thomas didn’t tip his hand during the Heller arguments, he has previously indicated support for the idea that the Second Amendment protects individual rights to own guns.

Even if the court does decide that the amendment protects the individual rights of gun ownership, lawyers in support of the D.C. law still hope to prevail on the argument that the city has the right to ban “uniquely dangerous” weapons such as handguns that are used in much gun violence and criminal activity and can easily be taken into schools, buses and other public gathering places.

The 1934 National Firearms Act attempted to control such “uniquely dangerous” firearms as automatic-fire machine guns, short-barreled shotguns and rifles, silencers and other “gadget-type” firearms and accessories.

If the D.C. city council can decide its own definition of “uniquely dangerous” weapons, so could every other city and state, which potentially could restrict gun ownership to the point that all guns could be rendered useless for personal defense.

“If you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire?” Scalia asked the D.C. lawyers.

In essence, the D.C. law prevents citizens from using guns for self-defense. This is fine with many gun-control advocates.

Personally, I think Heller should be able to keep a handgun in his home for his protection.

Rowland Nethaway’s column appears Wednes- day and Friday. E-mail: RNethaway@wacotrib .com

"Even the "in common use" concept doesn't have to mean "in common non-military use"."

No, it doesn't have to. But it does, at least according to Scalia. What did he say about machine guns again?

"JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people --"

"MR. DELLINGER: That is --"

"JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual."

"MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are --"

"JUSTICE SCALIA: How many people in the country?"

"MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the --"

"JUSTICE SCALIA: I don't think it's common."

"MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why ...."

Depite the number of machine guns, assault rifles, and full auto weapons in the hands of the military and police forces, Scalia doesn't think they're common. Put it this way, when figuring the over-under on a future court case involving a machine gun, don't count on his vote.

Buy hey! Look on the bright side! Scalia will likely vote for an individual right (with restrictions, of course). And when the tyrannical federal government rises, we'll all be ready for them with our "common use" pistols and single-shot 22's. What you call "a militia".

Riddle me this: Hadguns are banned in DC. Which means they are not in common use. Then why would the second amendment protect them (in DC)?

St.George Tucker covered this topic in his 1803 Edition of Blackstone's Commentaries to wit:

A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed.

This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

"Does it claim that Miller is now inoperative and that militia weapons are not protected?"

Is not that militia weapons are not protected. They are. It's just that the definition of those protected militia weapons has been watered down. From Silberman's decision:

"We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a “reasonable relationship to the preservation or efficiency of a well regulated militia,” because they were the very arms needed for militia service. And by the terms of the Act, they were to be personally owned and “of the kind in common use at the time.”

Well, this was fine in 1792 -- personal weapons were militia weapons. For the most part, they were indistinguishable.

Today, however, arms which bear a “reasonable relationship to the preservation or efficiency of a well regulated militia” and arms that are "of the kind in common use” are, for all intents and purposes, mutually exclusive.

If future courts are going to submit arms to this Miller "two-prong" test, it will severely, and I mean severely, limit the arms that would apply. Just given the limited practicality (and high price) of some militia-suitable weapons (eg., a .50 bmg rifle), it won't be "in common civilian use" and therefore not protected.

Unless the court changes the definition of "common use" to "in common use by the average militia member (military soldier)", we are royally screwed. Granted, this list would include a weapon like the M249 SAW, but reasonable regulations could handle those cases. As it looks like now, the M249 is not even protected. As weapons become more sophisticated, the civilian "militia" will fall further and further behind the federal standing army -- just the opposite of what the Founders intended.

I didn't ask for a treatise on self defense.

Sorry to disappoint, a treatise is exactly what you will get and need.

Over the past century there has been too much "deconstruction" of basic precepts by all the usual suspects to the point where the most inane arguments are accepted without protest by all the people who should know better.

Surely you remember the debate about "teenagers who never use their turn signals" so the only reason a teenager (obey the law) would use a turn signal is to insidously entrap a policeman on videotape into threatening to make up charges against said teenager?

Or perhaps the debate where 142 of the best and brightest contemporaty minds undergoing college level education should turn off said minds and hsyterically flee simulteaneously en masse through two or three available lecture hall openings rather than use their minds to disarm and disable a lone gunman who could not possibly control 142 individuals without their individual consent and assistance.

There has been way too much compartmentalization and hairsplitting tolerated in recent public discourse and the only way to prevail is to strike at root causes.

If you want to pick fly turds out of black pepper for your entire life feel free, just do not expect We the People to join you.

Sir, I have a challenge for you -

Rent a boat. Sail it up the Anacostia River in DC, on a hot, balmy night. Anchor at the north end of the river, and be sure to sleep below the waterline.

In the morning, get back to me about how “handguns are not in common use” in DC.

If you live.

robertpaulsen said: Unless the court changes the definition of "common use" to "in common use by the average militia member (military soldier)", we are royally screwed.

The one statement that troubles me from the Parker decision was to the effect that the word "arms" is so indefinite that it must look to the prefatory language for its definition. Given that the protected common-law right includes self-defense, then "arms" must also include items which are particularly suited to self-defense.

Your concern regarding "in common use", I think, is not a great concern.

The Parker court was required to address the objections of DC to the effect that Miller applied. Since it was possible to establish, through the requirements of early militia laws that pistols were required of a subset of the militia, then one must presume that the pistols were in common use at that time, and the court reasonably included the lineal descendants as qualifying under Miller. The Parker court made no further attempt to determine whether "common use" or "linal descendancy" were absolute requirements. Whether a machine gun is a lineal descendant of a rifle is of little concern, since no Court would ever claim that a state-armed militia could not have them.

This discussion of "common use" and usefulness to a militia is aimed squarely at not having to attack Miller, while still recognizing Heller's protected right.

In keeping with the Supreme Court's desire to make a narrow ruling, I would expect that they can afford to say little about whether the holding in Miller must be addressed. Only the fact that Miller and Layton didn't have to be members of a militia needs to be addressed. The scope of "arms", which clearly includes pistols, need not be further addressed by the Heller Court.

Ginsberg can be lulled back to sleep and provided a little cover by the claim that "in common use" can be used to prohibit arms suitable to a militia. But I think she knows better.

robertpaulsen said: And when the tyrannical federal government rises, we'll all be ready for them with our "common use" pistols and single-shot 22's.

That tyrannical federal government has already risen. Nothing that the Heller Court is going to decide will make the situation worse. As you have so helpfully pointed out in the past, most federal court districts have ruled that there is no individual right to keep and bear arms. Attempts to make the situation better are incapable of making them worse given how the majority of lower courts have ruled.

Fortunately, the lower courts have over-stepped considerably and read into Miller things which are not there and which the present Court is unlikely to let stand. The understanding of Miller that is "in common use" is flawed by the collective-rights nonsense and there is every reason to believe that the Heller Court will set this right.

Mr. Paulsen's riddle is a nearly perfect example of circular reasoning hence fundamentally flawed as summarized:

Because handguns have been banned they can be banned and should be banned.

Perhaps I missed it but has Mr. Paulsen ever done anything but propose conundrums, ask questions and spread old school Fear,Uncertainty,Confusion and Doubt about everything related to the 2nd Amendment?

You have followed his comments much more closely than I.

Best regards,

Copernicus said: "You have followed his comments much more closely than I."

When it comes to gun rights, I refuse to permit falsehoods, inaccuracies, or muddle-headed thinking to go unchallenged on FR. rp is quite knowledgeable about case law, but unfortunately that includes, in the case of gun rights, a preponderance of flawed cases, leading to many very untenable positions.

A prime example is the position that we must look only to our individual states for protection of the same right to keep and bear arms that is protected by the Second Amendment. There is absolutely no reason to single out the right to keep and bear arms, among all the inalienable rights of man, as having some character that justifies lack of protection by the federal government. This would seem to be especially true, given that in some states, the chief infringer of gun rights is that same federal government.

In the big scheme of things, a single poster on FR is not going to make the key difference. One of the main contributors to the present situation is Lawrence Tribe, the liberal legal academic. As a liberal who doesn't like guns, he lends great credibility to the idea that the Supreme Court must make adjustments to what has become an untenable claim by lower courts that no individual right exists.

Once the individual right is recognized, it will become much more difficult to use a case like Miller to permit such widespread and pernicious infringement. And once the federal government loses its ability to infringe, it will lose its appetite to permit state infringement.

The other element working strongly in our favor is the degree to which voters nationwide have expressed their displeasure with gun control. Democrats know it and are adjusting to it, though slowly and erratically.

We'll probably see soon how Hussein and McCain deal with gun rights. If the Heller decision goes as I hope, Obama and McCain will both have to make clear their support of lack of support for the decision.

"Given that the protected common-law right includes self-defense, then "arms" must also include items which are particularly suited to self-defense"

Stevens didn't think there was connection between the second amendment and self defense. You do?

"JUSTICE STEVENS: How do you explain the fact that you include self-defense, but only two States, Pennsylvania and Vermont, did refer to self-defense as a permissible justification and all of the others referred to common defense or defense of the State, and in the Articles of Confederation and the Constitution itself there is no reference to self-defense?"

As a matter of fact, Stevens went on and on and Gura had no effective reply.

"The Parker court made no further attempt to determine whether "common use" or "linal descendancy" were absolute requirements."

The Parker court applied a "two-prong Miller test" -- 1) a “reasonable relationship to the preservation or efficiency of a well regulated militia” and, 2) arms that are "of the kind in common use”. If that's not an absolute requirement, why refer to it and why use it?

"The scope of "arms", which clearly includes pistols, need not be further addressed by the Heller Court."

No, it need not. But the next "Gura" who appears before the U.S. Supreme Court to defend his client who possessed a machine gun has got his work cut out for him, since the original Gura effectively took away any argument he might use.

robertpaulsen said: "If that's not an absolute requirement, why refer to it and why use it? "

Because it is an established principle in law that you don't argue to throw out a precedent like Miller if you don't have to. By showing that pistols are militia weapons and were in common use at the time, the Parker Court completely side-stepped any issues with Miller. The Supreme Court doesn't even have to decide that there is a right to keep and bear arms for self-defense. They only need to agree with Miller that the people, including Heller, have the right to keep and bear arms that have some utility to a militia.

Though you never agreed, many briefs in Heller point out that the Surpeme Court in Miller completely ignored the prosecution's argument that only militia members are protected. Had that really been the case, then the Supreme Court in Miller would never have had a need to address short-barreled shotguns or militia-usefulness. They could have simply stated that the Second Amendment only protects members of a militia.

robertpaulsen said: "As a matter of fact, Stevens went on and on and Gura had no effective reply."

And yet Kalifornia explicitly states that there is a right to self-defense. But somehow I imagine that that is still insufficient. To you, the right to self-defense without a mention of arms is meaningless. And the right to keep and bear arms, without a mention of self-defense is also meaningless.

If the Supreme Court rules in Heller that there is no fundamental, individual right to self-defense, then we have wasted our time in pushing Heller. But, IF THERE IS SUCH A RIGHT, then no sane person would claim that the right to keep and bear arms does not have as a purpose to permit the exercise of such a right.

As I pointed out before, perhaps in a different thread, "militia" is simply the plural of "self-defense". There is little that is contained in one that is not also contained in the other.

IIRC, you wrote that you wanted to read Parker. Let me know if you want the pdf version.

Parker v. Washington D.C. in HTML courtesy of zeugma.

Kennedy seems to say Miller is insufficient, aka "deficient," as he suggested, for the purpose of individual, self defense versus the militia, a common defense.

The Miller decision can still be useful for other infringements from the states and the feds, IMHO.

neverdem said: "IIRC, you wrote that you wanted to read Parker. "

Thanks for the link. I did track it down and read it this morning, though my eyes glazed over when I got to the dissent, which I skipped.

The deficiencies in Miller are certainly creating a mess in the briefs (if you'll pardon the expresssion) because the pro-gun side is in the position of having to make the best argument they can that's consistent with Miller, despite having even stronger arguments if not for Miller.

Gura had to jump off a logical cliff to keep from affirming Ginsberg's notion that machineguns are going to be protected.

We'll know the Supreme Court has done the right thing if we soon witness some anti-gun state governor sending the state police to block the doorways of gun shops so that people can't buy machine guns. A similar thing happened when "separate but equal" was stricken and one can hardly imagine what our nation would be like if that injustice had not been stopped.

"They could have simply stated that the Second Amendment only protects members of a militia."

They weren't asked that question. Why would they answer it?

The question before them was if the tax stamp requirement on a sawed-off shotgun violated the second amendment. THAT was the law that was violated.

If the law stated that only militia members were allowed to transport a sawed-off shotguns interstate, then certainly Mr. Miller's militia status would have been relevant. But anyone was allowed to transport a sawed-off shotgun interstate -- provided they had a tax stamp affixed. You keep making this hypothetical the issue when it wasn't.

"By showing that pistols are militia weapons and were in common use at the time, the Parker Court completely side-stepped any issues with Miller."

Side-stepped? They waded in!

The Parker court examined Miller, came up with a "two-prong test", and faithfully applied it to their case. The U.S. Supreme Court appears to have accepted this two-prong test, and added a third -- lineal decendancy.

"They only need to agree with Miller that the people, including Heller, have the right to keep and bear arms that have some utility to a militia...."

AND .... AND .... are in common civilian use. That excludes a whole bunch of weapons -- .50 bmg rifles, select fire M-16's and M4's, machine guns, etc.

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