High court to look at ban on handguns

McClatchy-Tribune ^ | Nov. 9, 2007, 12:18AM | MICHAEL DOYLE

[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.

[robertpaulsen]

Whose arms?
Who selects?

Who cares?

There's a member of a well regulated state militia. That person is carrying a weapon. The federal government may not infringe that person's right to keep and bear that weapon.

The second amendment doesn't state that the weapon must belong to the person. The second amendment doesn't state who that person shall be or shall not be. The second amendment doesn't say what the arm shall or shall not be.

Militia member. Gun. Protected.

[publiusF27]

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.

I agree that without power hungry politicians in Congress trying to overstep their authority, the Court would not need to rein in any usurpations. But Congress is a magnet for those types, and weren't you the guy who just a few replies ago said you were glad the Court was around in the Lopez and Morrison cases to put Congress in their place?

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 rule

Yes, I know they've been getting it wrong for years, except a few years back in the 5th Circuit and just recently in the DC District Court. Let's hope the Supreme Court sees that the militia clause does not limit the 2nd amendment.

We used to have a copy of MP & the Holy Graile on tape at my house, and it got watched whenever nothing better was on, which was frequent. It was funny every time. I haven't seen any of their other work, and still don't get your joke. Oh well, if it had to do with Monty Python, I'm sure it was funny. ;-)

[publiusF27]

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.

But some states already ban carrying weapons, some allow it, and some require a permit. I don't see how a ruling saying they can all continue to do what they're doing affects anything.

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.

There's no door in the doorway now. It's already clear that handguns (or any other weapons) in the hands of the unorganized militia are not protected. You said so yourself.

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.

And the current interpretation by the majority of the federal courts today would not allow that to happen? Why not?

Given their record, having five justices defining the second amendment for every state and every citizen makes me uncomfortable.

It has already been defined, and it's meaningless to most citizens. I get a pointed stick, as you pointed out. No machine guns, the AWB was apparently OK, and how exactly are my handguns currently protected? I really fail to see how they could make matters worse.

[publiusF27]

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).

No, I have never said that. The sky is just like a navigable river, which has always been treated as a channel of commerce. BTW, I'm well aware of the need for that kind of regulation, and the usefulness of national and international standards. I'm a former flight instructor, and have a commercial airplane and glider license, though I haven't flown in about 10 years.

[ctdonath2]

The federal government may not infringe that person's right to keep and bear that weapon.

What right? How does this situation differ at all from an agent of the state carrying out the powers of the state under state control? Surely the Founding Fathers didn't think soldiers needed legal protection to carry weapons!

[robertpaulsen]

It's best on video. Monty Python's Flying Circus. "Self Defense Against Fruit":

http://digg.com/lbv.php?id=2098086&ord=1

[robertpaulsen]

"I don't see how a ruling saying they can all continue to do what they're doing affects anything."

True. As with the Kelo decision, nothing changes.

But, with Kelo decision, states, cities and municipalies nationwide now know that they can constitutionally seize private property and sell it to a private developer. Will they do that? Who knows? But the U.S. Supreme Court says they can, and that troubles me.

"It's already clear that handguns (or any other weapons) in the hands of the unorganized militia are not protected. You said so yourself."

Not protected by the second amendment. Handguns are protected by state constitutions which use similar language.

So, for the highest court in the land to rule that "arms" do not include handguns, well, how will the states defend their laws when Sarah Brady and her bunch come-a-knockin'?

"And the current interpretation by the majority of the federal courts today would not allow that to happen? Why not?

First, any ruling by a federal circuit court only affects that circuit. Second, I'm not aware that any other circuit court has ruled that handguns aren't protected arms. Third, someone still needs to write a law prohibiting them, and there hasn't been a great rush to do so.

I'm saying that could change when the highest court rules and settles the ongoing controversy.

"I really fail to see how they could make matters."

Today, you can move to another state.

[robertpaulsen]

"Surely the Founding Fathers didn't think soldiers needed legal protection to carry weapons!"

This is the first mention of soldiers. I'm not talking about soldiers. I'm talking about members of a well regulated state militia.

Did you now want to change the topic?

Protection? The Founding Fathers wanted to protect the right of members of a well regulated state Militia to keep and bear arms from federal infringement.

You're now resorting to distorting the argument -- which is what you typically do. You're now talking about "soldiers" and "agents of the state" and "legal protection". I'm not going down that road. I think I've been very clear.

[publiusF27]

But, with Kelo decision, states, cities and municipalies nationwide now know that they can constitutionally seize private property and sell it to a private developer. Will they do that? Who knows? But the U.S. Supreme Court says they can, and that troubles me.

I see what you're saying, and it's a valid concern. There was also quite a backlash against the Kelo decision, and some good legislation was passed by states and the feds on the subject.

So, for the highest court in the land to rule that "arms" do not include handguns, well, how will the states defend their laws when Sarah Brady and her bunch come-a-knockin'?

They'll say, "But it was just a homegrown machine gun for personal consumption, and didn't affect commerce at all!" ;-)

OK, so that's been tried. Or maybe we'll actually win the Parker/Heller case... Roberts, Alito, Scalia, Thomas, and... who?

There are lots of potential flavors of "win" which are now possible. You've talked about some potential risks, and made some valid points, but you haven't mentioned the gains we stand to make at all levels of govt if the SC rules in a way favorable to the individual's right to keep and bear arms.

[robertpaulsen]

"I'm well aware of the need for that kind of regulation"

As to when and where you can fly, private pilots aren't regulated -- by that I mean, as long as you stay out of controlled airspace, you can take off and land and fly wherever you want without federal control, correct?

So, your intrastate activities are not regulated by the federal government. Only when those intrastate activities have a substantial effect on interstate commerce, does the FAA get involved.

I'm not a pilot, so excuse me if I oversimplified. But I hope you see the general point I'm trying to make.

[publiusF27]

The Founding Fathers wanted to protect the right of members of a well regulated state Militia to keep and bear arms from federal infringement.

Big government folks of the time like Hamilton had in mind maintaining a small group of people with military training, but even he also had in mind using members of those small groups as officers to command civilians if a large army were needed. Congress could arm those civilians once they were part of the militia (if they could afford it), but it was expected that the people would show up with whatever rifles they owned. This is why we're all supposed to have M-16s.

[robertpaulsen]

"Or maybe we'll actually win the Parker/Heller case"

That's possible, sure. I just can't see where there's that much to be gained. I don't want incorporation (for the "interpretation" reasons I mentioned), so that outcome, to me, represents a major loss.

In my eyes, the best they could do is to rule an individual right, but do not incorporate -- that will protect us (and the DC residents) from federal law. But I wouldn't expect the '34 NFA to be touched, or the '68 GCA -- would you?

Under that non-incorporation scenario, there's no second amedment protection from state laws (like today). I willing to sacrifice that in exchange for the U.S. Supreme Court keeping their mitts off.

[publiusF27]

you can take off and land and fly wherever you want without federal control, correct?

I can't. Federal law says I'd have to go see a doctor and get a current medical and then go see a flight instructor for a flight review signoff before I could take a passenger. There are some more rules if I did it at night.

Even in those places, you have to have a federal license. There are federal rules about airplane maintenance. Some ultralights and hang gliders and stuff were exempt, last I knew, but that was pre-9/11. You have to maintain a certain distance from people and their stuff. There are still some rules related to weather. There may still be some unregulated aircraft in unregulated places, but all airplane flying is subject to some federal regulation.

I don't have any problem with the idea of federal aviation regulations. I don't even have a problem with those rules reaching a flight across Florida in a private plane. In some parts of the state, you could even fly from one private airstrip to another and remain in uncontrolled airspace, if you stay low enough. Your flight might go over my house, and I can't stop you, just like I can't stop you going up the navigable river. The feds can make that kind of rule. The feds can also regulate aspects of your flight route, your training, and your plane, for the same reasons they can regulate river traffic, mainly safety.

This is more fun when we disagree, but you'll have to look elsewhere for someone who opposes federal aviation regulations.

[robertpaulsen]

"This is why we're all supposed to have M-16s."

I understand. We are all the militia.

I agree that those of us citizens who want them, are qualified to have them (not a felon, sane, minimal age requirement), and can afford them should have them. And I think that right should be protected. If it came up for a vote, I'd vote for it.

BUT, I'm saying the second amendment doesn't do that today. Futhermore, even if the Heller court rules it an individual right for every citizen, that still won't put an M-16 in every household.

Get yourself an AR-15. Now that the federal AWB has expired, you can get it with a collapsible stock, flash suppressor, and bayonet lug.

A three-round burst, unfortunately, is only accomplished by pulling the trigger three times - real fast.

[Mojave]

I understand. We are all the militia.

[robertpaulsen]

"In some parts of the state, you could even fly from one private airstrip to another and remain in uncontrolled airspace, if you stay low enough."

This is what I was referring to. The other stuff, licensing, maintenance, weather (IFR/VFR), I understand.

"This is more fun when we disagree, but you'll have to look elsewhere for someone who opposes federal aviation regulations."

Not at all. It was merely an analogy I've been using to compare to other federal government laws covering activity that has a substantial effect on interstate commerce.

[robertpaulsen]

Let's ask ctdonath2 to go over there and tell them they're out of uniform.

[Mojave]

And just at look how the LAPD is suppressing those valiant street militia members!

[Thumper1960]

When Lincoln stated that it was the desire of the Union for "government of the people; by the people; and for the people" to not perish from the earth, did he mean to convey that the government is the populace? Meaning, the people are the government, without whose consent the government would not exist.

[tacticalogic]

It seems that federal bureaucrats think of ordinary citizens as street criminals.