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.
That was the plan.
But 20 years later, at the start of the War of 1812, very few showed up with arms or even trained in the use of them.
Which explains why the "militia" concept eventually went away.
Which, a few years after Miller, the 1st Circuit Court in Cases thought to be an odd conclusion -- that a private citizen may keep and bear military arms.
However, I don't see any conclusion other than that.
Yes they did. Their decision was reversed by the U.S. Supreme Court, but they did indeed incorrectly find that law violated Millers rights.
"And reading the Miller court makes it fairly clear that had anyone been present to argue Millers case, the SC would have upheld the lower court."
If they would have been able to prove that a weapon as short as Mr. Miller's sawed-off shotgun was used by the average soldier, the U.S. Supreme Court may have ruled differently. We'll never know.
I was simply quoting the DC Circuit Court in Palmer (my bold):
"In United States v. Cruikshank, 92 U.S. 542, 551 (1876), and Presser v. Illinois, 116 U.S. 252, 264-66 (1886), the Court held that the Second Amendment constrained only federal government action and did not apply to the actions of state governments. This holding was reiterated in Maxwell v. Dow, 176 U.S. 581, 597 (1900), and Twining v. New Jersey, 211 U.S. 78, 98 (1908). Indeed, the Second Amendment is one of the few Bill of Rights provisions that has not yet been held to be incorporated through the Fourteenth Amendment."
Unless you're saying the Palmer court was wrong?
I have come to believe that it protects the formation of a state Militia from federal infringement. It does this by protecting the right of individuals to keep and bear arms as part of a Militia.
Those arms are defined by the state in which they reside, and the state sets the laws governing those arms under the state constitution.
Any individual right to keep and bear arms beyond that is protected by each state's constitution.
Now, what do you think it protects and how do you explain the discrepancy in state gun laws (e.g., concealed carry)?
True. Though that tax is still in effect today.
"Had Miller not been found shot dead by a mystery gunman, the history of gun control would have been much different."
I wish he would have been carrying a Thompson submachine gun, rather than the controversial sawed-off shotgun.
Well, some people might look at a limitation of what is broadcasted as the definition of a First Amendment issue.
Plus, this is an example of First Amendment "prior restraint" which is what someone was looking for and my reason for posting it.
As much as I would love to believe that,don't count on it. Unless the NRA decides to get involved in the primaries and endorse Fred Thompson. That may throw the gun control debate out in the open.
I saw Kelly Wright make a few comments re this issue...what a dolt!
He actually stated, "Imagine everyone carrying weapons in DC?" Hello Kelly....the criminals have them....and don't give a damn about any firearms laws....
I fear for a world full of these fools....
The wording of the second amendment itself and statements from the Founders. All refer to "the people", "the people at large", or "the whole people". Nowhere do they say "person(s)" or "individuals" or "citizens" when it comes to the second amendment.
If you can find one, give me a link and let's discuss it.
Maybe "collective" is the wrong word. Look at is as a civic right, like voting. Voting is an individual right, sure, but it is only exercised on certain occasions and only as a group. You can't vote anytime or anywhere you want to.
That's what the DC Circuit Court in Parker said -- and they cited four federal court cases to support that. Are they wrong also?
Correct. I've never said any differently.
"You keep talking like the states own the militia entirely"
In 1792, the militia of each state served under the Governor. Only if federalized by the President of the United States did the state militia serve in a federal capacity.
Nope.
You asked me for a right that is not protected and not infringed. Millions of Californians are exercising their unprotected and unfringed right to keep and bear shotguns.
The group has nothing if the individuals have nothing.
A group is an aggregate of individuals; without individuals there is no group.
Voting may be a “collective” activity, but if no individual has the right to vote then there is no voting, and if the state dictates how one shall vote then there is no right to vote. There is always the “write-in” option in voting, so you can vote for whoever you want (even if only one candidate is listed), or submit a blank ballot. There is always the “absentee ballot” option, so you can vote whenever you want (once they know what is being voted for and candidates are identified). Any limitations thereon are merely points of facilitating the effective exercise of that right by all individuals.
A “militia” is understood to be an aggregation of citizens who normally were not active soldiers. The Supreme Court in US v. Miller observed “The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of the country and laws could be secured through the Militia - civilians primarily, soldiers on occasion.” You cannot have a “militia” without individuals.
The Militia Act of 1792 sez “That every citizen, ... shall ... provide himself with [certain equipment]...” That’s individual citizens, equipping their individual selves, at their own individual cost.
“Let your gun be your constant companion on your walks... this gives exercise to the body and independence to the mind... no free man shall ever be debarred the use of guns” - Thomas Jefferson.
Plainly refers to individuals exercising an uninfringed right.
“The great object is, that every man be armed.” - Patrick Henry.
“... who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers.” - George Mason
“The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them” - Tench Coxe
Your bickering is tiresome.
The people is the aggregate of individual citizens.
The militia is the aggregate of individual citizens, individually self-armed.
That was plainly the understanding of the time.
To claim a collective is not an aggregate of individuals is to make the collective empty at best, and a body of agents of the state at worst.
When you vote, it is you voting, casting your vote, according to your choice, which you made whenever you decided, and discussed as openly as you like - the only limitation is the state organizing the voting process to be meaningful and timely.
Without you the individual, there is no vote.
Likewise the militia.
As a militia member, it is you, with your arms, obtained at your discretion and cost, used responsibly at your choice - the only limitation is the state/nation organizing the combat process to be meaningful and timely.
Without the armed individual, there is no militia.
BTW: voting is not included in the BoR, much less enumerated as “shall not be infringed”. Arms possession is.
How about their right to keep and bear M4s?
Yes you did: The Militia Act of 1792 described a militia that was organized, armed, trained and accoutered with officers appointed by the state.
True enough. If you believe that as long as some people can still buy a firearm of some kind, then the right to keep and bear arms hasn't been infringed, then that's a perfectly good argument.
In the Miltia Act of 1792, Congress details the organization, the armament, and the training of the Militia. Now, I don't understand why you would only choose one of these areas, training, and say that's what was meant by "well regulated" -- and use a 1690 definition to back you up.
I guess we'll just disagree.
You of anyone should know that the decision was NOT reversed; the issue was remanded for further evidence gathering.
And in that Act, individuals were to get their OWN equipment (arms included) at their OWN cost.
...so again: why can’t I, a member of the militia, get an M4?
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