Posted on 11/09/2007 3:17:09 AM PST by cbkaty
Justices to decide whether to take up case on strict limits approved in D.C.
WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.
Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia's stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.
"If the court decides to take this up, it's very likely it will end up being the most important Second Amendment case in history," said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.
Henigan predicted "it's more likely than not" that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.
Lawyers are swarming.
Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.'s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it.
From a victim's view: Tom Palmer considers the case a matter of life and death.
Palmer turns 51 this month. He's an openly gay scholar in international relations at the Cato Institute, a libertarian research center, and holds a Ph.D. from Oxford University. He thinks that a handgun saved him years ago in San Jose, Calif., when a gang threatened him.
"A group of young men started yelling at us, 'we're going to kill you' (and) 'they'll never find your bodies,' " Palmer said in a March 2003 declaration. "Fortunately, I was able to pull my handgun out of my backpack, and our assailants backed off."
He and five other plaintiffs named in the original lawsuit challenged Washington's ban on possessing handguns. The District of Columbia permits possession of other firearms, if they're disassembled or stored with trigger locks.
Their broader challenge is to the fundamental meaning of the Second Amendment. Here, commas, clauses and history all matter.
The Second Amendment says, "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."
Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.
"The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice," New York and the three other states declared in an amicus brief.
Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual's right to possess guns.
Clashing decisions
Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.
The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.
If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court's conservative majority a chance to undermine gun-control laws nationwide.
re; Semper Fi
My units motto was Semper Gumby, Always Flexible.
Waht unit were U with in the Great SEA War Games?
You need to look up the definition of "infringe". Hint, it doesn't mean the same thing as "deny" or even "violate".
Ah heck, I'll do it for you.
transitive verb1: to encroach upon in a way that violates law or the rights of another (infringe a patent)
Webster's Revised Unabridged Dictionary (1913)
Infringe \In*fringe"\, v. i. 1. To break, violate, or transgress some contract, rule, or law; to injure; to offend.
2. To encroach; to trespass; -- followed by on or upon; as, to infringe upon the rights of another.
Not the fifth circuit, one other IIRC, nor now the Circuit for the District of Columbia.
There is a definite disagreement between the circuits.
ROFLMAO! The words "in battle" do not appear in those state Constitutional provisions, they are a figment of your imagination or something.
I'd say nice try, but it was pretty lame really.
"Well disciplined is not the same as "well regulated", although it's probably a necessary condition.
But Hamilton, the little statist, was writing about a Select Militia, which others, mainly anti-federalists, at whose insistence the Bill of Rights was written, but federalists as well, had rather negative things to say about.
A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary. The powers to form and arm the militia, to appoint their officers, and to command their services, are very important; nor ought they in a confederated republic to be lodged, solely, in any one member of the government. First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided. I am persuaded, I need not multiply words to convince you of the value and solidity of this principle, as it respects general liberty, and the duration of a free and mild government: having this principle well fixed by the constitution, then the federal head may prescribe a general uniform plan, on which the respective states shall form and train the militia, appoint their officers and solely manage them, except when called into the service of the union, and when called into that service, they may be commanded and governed by the union. This arrangement combines energy and safety in it; it places the sword in the hands of the solid interest of the community, and not in the hands of men destitute of property, of principle, or of attachment to the society and government, who often form the select corps of peace or ordinary establishments: by it, the militia are the people, immediately under the management of the state governments, but on a uniform federal plan, and called into the service, command, and government of the union, when necessary for the common defence and general tranquility. But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expence, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it. As a farther check, it may be proper to add, that the militia of any state shall not remain in the service of the union, beyond a given period, without the express consent of the state legislature.
That's one aspect of it. My take on it is that the problem is that we have people who promote the idea that our Constitutional rights, and the plain meaning of the Constitution is whatever the last thing the USSC said it was.
Correct. And in my opinion, if challenged, would not stand given the decision in Morrison.
"It is that substantial effects reasoning which has led to acts such as the gun free school zones act, and that is what we need to revisit."
And before that, the reasoning used to be "direct" and "indirect". We're just rearranging deck chairs on the Titanic.
The problem is Congress -- not the Commerce Clause, not the substantial effects test, not the Necessary and Proper Clause. Every two years we elect those who write the laws. It's time for the voter to take responsibility, rather than hoping the U.S. Supreme Court will continue to rein in Congress.
"Nothing in the 2nd amendment says that ONLY the organized militia have the right to bear arms."
Correct. However, the second amendment protects the right only of "the people" in a "well regulated" Militia. Or so the majority of federal courts have ruled.
"Where is your evidence that the Founders intended for Congress to have the power to disarm the unorganized militia?"
Where is your evidence that I ever thought that was the Founder's intent? I have no idea where Congress would get this kind of power.
"Did they ever talk about limiting the people to pointed sticks?"
Not a Monty Python fan. I apologize and retract my attempt at humor.
As for your quotes. I have no doubt the Founders believed in an individual right to keep and bear arms. But that's a right protected by state constitutions, and that's where we need to focus our efforts.
3RD MAR DIV AIR (fwd) Dong Ha
Probably the same as Kelo.
Once the second amendment is incorporated, there would be a challenge to some state concealed carry law brought before a liberal U.S. Supreme Court where they would rule "bear" does not include concealed carry. Like Kelo, this ruling would have no direct force on the states, but would send the message to all states that they had a green light to engage in this activity.
Or, similar to Parker (now Heller), a liberal U.S. Supreme Court could rule that handguns are not protected "arms" (as did the 7th Circuit in Quilici v Morton Grove). Again, no direct effect on the states, but it would open the door.
If enough states started banning handguns, they could ask Congress to pass a law banning the interstate commerce of them -- similar to what Congress did before Prohibition with the Webb-Kenyon Act.
Which didn't work (of course) which led to Prohibition.
Given their record, having five justices defining the second amendment for every state and every citizen makes me uncomfortable.
Correct. As I believe the Necessary and Proper power should have only the limits found in that clause. There are occasions where intrastate activity does have a substantial effect on the interstate commerce that Congress is constitutionally regulating, and where it is both necessary and proper for Congress to regulate that activity.
I have used the example of a private pilot flying from one part of the state to another. An intrastate, non-commercial activity that you say should be off-limits to Congress (the FAA).
I disagree. When that pilot flies into controlled airspace, he has a substantial effect on interstate air traffic and his activity may be regulated -- even prohibited.
But hey, call me a cynic. I've seen the U.S. Supreme Court erode more freedom than grant. The downside to incorporation would be my post #989.
What a bunch of crap!!! Like everybody that owns guns are in a militia.
Using your definition, I can't find any occasion where Congress infringed on the right of members of a well regulated Miltia to keep and bear arms.
Now, if you think the definition of "shall not be infringed" is as plain as day, how about "Congress shall make no law". Whew! I don't need a dictionary for THAT puppy!
Yet ....
The 5th Circuit in Emerson and the DC case. The "one other" that you're thinking of could be the finding of the U.S. Attorney General.
Unlike the DC case, the decision in Emerson did not reverse the lower court ruling with the individual rights finding. The 5th Circuit simply wanted to make a statement.
Which thoroughly infuriated the 9th Circuit. They fired back with a 75-page diatribe in Silveira v Lockyer.
Of course not. It would be redundant. Which is my point.
If he's flying in "controlled airspace", his activity is regulated. You have a habit of making circular arguments.
I agree. I believe the "well regulated Militia" referred to in the second amendment is exactly the same Militia referred to in Article I, Section 8 of the U.S. Constitution which describes the Militia as organized, armed and disciplined, with officers appointed by the state.
"But Hamilton, the little statist, was writing about a Select Militia, which others, mainly anti-federalists, at whose insistence the Bill of Rights was written, but federalists as well, had rather negative things to say about."
Yes. There was disagreement about a "select" Militia. That's what we ended up with, however.
And even a select Militia was inadequate. 20 years later, at the start of the War of 1812, state militia members showed up unarmed and lacking any training. That was the beginning of the end of the concept of state militias to defend the country.
They're not organized, armed, and disciplined under the authority of the federal government.
“organized” != “well regulated”
So, "civilians" != "people".
There really is no point in further discussion, guys.
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