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.

[publiusF27]

Then again .... if they simply meant the people have the right they would have written, "The right of the people to keep and bear arms shall not be infringed.” Gosh. Why did they add all that Militia clutter?

Call me crazy, but maybe they meant the people, who are part of a well regulated state militia, have their right to keep and bear arms protected from federal infringement. I always thought it was a militia that was necesary to the security of a free state, not an armed public.

Looks like an armed public is necessary to the ability to form a militia. Robertpaulsen, if he were around would admit it without all the bizarre distortions, as he said elsewhere in this thread:

If the Supreme Court rules the 2nd Amendment is an “individual right” that extends beyond the limits of active participation in a state militia, I, robertpaulsen, promise to stop harping on my much-disputed premise.

There's one for your page, if you want it, Mojave. ;-)

[Mojave]

I have NEVER asserted that criminal gangs are militia.

Are they?

[Mojave]

Looks like an armed public is necessary to the ability to form a militia.

How about armed Crips?

[publiusF27]

hah hah, your favorite question is now irrelevant, remember?

Here’s the relevant question you’re afraid to answer:

Does the second amendment apply to gang members?

[Smokin' Joe]

Define “gang”. Define Militia. Are the Crips defending the people in their neighborhood or seriously and forcibly exploiting them? I think you will have your answer.

[publiusF27]

Define Militia.

Done. But I think you have mistaken me for Mojave. He's the one who wants to know whether Crips are covered by TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311 - Militia: composition and classes.

[Smokin' Joe]

My bad, sorry.

I would say that individually, any member who has not been convicted of a felony, who is an American citizen, retains the RKBA, and the others as well.

However few notable examples are not disqualified by felonious behaviour or citizenship issues.

It is interesting to note that an English Dictionary published in the second decade of the 1800s (King George III's son had been made Regent while George III languished on his deathbed) defined "Militia" as "The Army, in its entirety.", and that one of the founders described the Militia essentially as 'all of us'.

The idea that the Crips, Bloods, etc. are defending neighborhoods as an army has serious problems, in that they are an occupying force defending an occupied territory from a rival occupying force, not for the benefit of the citizenry of that territory, but their own enrichment at their expense.

[Mojave]

Looks like an armed public is necessary to the ability to form a militia.

How about armed Crips?

Don't be afraid.

[Mojave]

Scalia said militia membership is unnecessary to enjoy the right to keep and bear arms. PubliusF27 claims that Crips have the right to keep and bear arms because they’re a militia.

[publiusF27]

I never made such a silly claim, and that’s why you can’t point to a post where I did.

[publiusF27]

Where were females and anyone over 45 going, anyway? Don’t be afraid. ;-)

[Mojave]

Where were females and anyone over 45 going, anyway?

Into your imaginary Crips militia senior Cholita division?

[Smokin' Joe]

No one has the RKBA because they are a member of a militia. That was not what the right was about, and reading the Federalist will help explain that. Having arms in the hands of the general population (citizenry) was seen as a counter to the possibility that the Militia, (the Army), be it State or Federal, might get out of hand and take over.

[publiusF27]

Non-responsive dodge, but funny! Does the second amendment apply to members of the senior Cholita division?

[Mojave]

http://www.freerepublic.com/focus/news/1923243/posts?page=1465#1465

[publiusF27]

OK, incorporation is coming, but it hasn't happened, so federal laws it is, then...

I think the Hughes post-86 machine gun ban is in danger of being overturned. The Appeals court said that if it's an "arm" it is not open to the government to ban it, and an M-16 is an arm.

The opinion of the court:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Putting a happy switch on an AR-15 doesn't make it "sophisticated" does it? The ban is the only "modern development" which has made the AR-15 common in civilian hands and the M-16 scarce.

The antis and the solicitor general were worried that the SC ruling in Heller might endanger the post-86 ban. I think they may have been right. :D

And what about the NFA? The opinion of the court:

Obviously, the same (rational basis) test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. (footnote 27)

If that's how the Court views the second amendment, the next question would be, can you have a regulatory tax like the NFA on a right which stands alongside freedom of speech? The Miller decision held that the NFA was OK, citing Sonzinsky v. United States and various narcotics cases. In Sonzinsky, the court held that the NFA was within the power of Congress to tax, but they didn't mention the second amendment at all. I think the NFA could now be attacked on the same grounds as poll taxes.

[Mojave]

OK, incorporation is coming

Leftist love incorporation and judicial legislation. Keep dreaming.

[publiusF27]

It's judicial unlegislation, and they'll be lovin' it in Chicago soon!

[Mojave]

Doublethink. Another leftist trait.

[publiusF27]

Leftist love incorporation and judicial legislation.

You're actually right about that, but since that particular cat is out of the bag, we're all going to have to play by the current rules.

It is not only leftists, BTW. Only ONE Presidential candidate from either party expressed the view that the Bill of Rights should not be incorporated, and called incorporation a "phony doctrine."

Ron Paul on the First Amendment and incorporation:

The First amendment acts as a simple check on federal power, ensuring that the federal government has no jurisdiction or authority whatsoever over religious issues. The phony "incorporation" doctrine, dreamed up by activist judges to pervert the plain meaning of the Constitution, was used once again by a federal court to assume jurisdiction over a case that constitutionally was none of its business.

Ron Paul on the Fifth Amendment and incorporation:

If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases – not only when it serves our interests.

Ron Paul didn't get many votes, and wasn't exactly Mr. Popularity around here, as you may recall. I think it's safe to say that attacking incorporation is a political loser.

Legally, the idea that the 2nd amendment is not incorporated rests on the Cruikshank case, cited in the Heller decision. Scalia also left this interesting little footnote about Cruikshank:

23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

OK, so the incredibly racist Cruikshank opinion and two decisions which depended upon it say that the Bill of Rights applies only to the feds. Mojave and Ron Paul agree, and I tend to agree as well, but I doubt this is a fight we can win in court.

Incorporation is coming, and while I may disagree, I'm kind of enjoying Daley's reaction up in Chicago. ;-)