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.
I don't disagree. I was simply trying to put that statement in perspective.
Especially after your "We're all supposed to have M-16s" comment. In 1792, 80-85% of "us" were not in a position to defend the state.
They didn't have to. That's what "the People" is for. Not the state government, not the federal government, but the People. They didn't HAVE to enumerate each person or refer to them as "the Citizenry" (good God Almighty).
How would I know one?
If they're a member of a State Defense Force or a State Guard and that state uses M4's, then why wouldn't they have one?
I thought there was a FReeper in the Texas State Guard that had one. I don't recall. I would have written it down had I know how important it was to you.
Correct. And that represented about 15% of the population.
Their arms were protected by the second amendment from federal infringement. They, forming a well regulated militia, were necessary to the security of a free state.
That's what the well regulated Militia was for. It was a "well regulated Militia" that was necessary to the security of a free state, wasn't it? Isn't that what the second amendment says?
A select group of individuals, "the people", as members of the militia, had their right to keep and bear arms protected by the second amendment from federal infringement.
Everyone else's right to keep and bear arms was protected by their state constitution.
So then you’re claiming “the People” of the 2d are different than the “the People” of the 10th? That the 10th only applies to those “People” who bear arms in the militia?
The brief discussion of the amendment in Congress makes clear that the committee had no intention of subordinating one right to the other.[75] Elbridge Gerry attacked the phrase dealing with conscientious objectors, those "scrupulous of bearing arms," that appeared in the original (p.137)amendment. Revealing a libertarian distrust of government, Gerry maintained that the declaration of rights in the proposed amendment "is intended to secured the people against the mal-administration of the Government," and indicated that the federal government might employ the conscientious objector phrase "to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."[76] This would return America to a European-style society in which governments systematically disarmed their citizens. Thomas Scott of Pennsylvania also strenuously objected to this phrase for fear it might "lead to the violation of another article in the constitution, which secures to the people the right of keeping arms."[77]
While congressmen firmly believed in the right of individual citizens to possess arms, no consensus existed regarding whether or not these people should be required to bear arms in the militia. One representative declared: "As far as the whole body of the people are necessary to the general defence, they ought to be armed; but the law ought not to require more than is necessary; for that would be a just cause of complaint."[78] But another representative observed that "the people of America would never consent to be deprived of the privilege of carrying arms. Though it may prove burdensome to some individuals to be obliged to arm themselves, yet it would not be so considered when the advantages were justly estimated."[79] Other congressmen even went so far as to argue that the states should supply firearms to those Americans without them.[80] Regardless of their voicers' feelings about the militia, such statements clearly revealed an urge to get arms into the hands of all American males between the ages of eighteen and forty-five, and not to restrict such possession to those in militia service.[81]
Please try to ensure a rebuttal includes cites instead of Paulsenisms.
Still waiting..........
No. They're the same.
"That the 10th only applies to those “People” who bear arms in the militia?"
The 10th applies to "the people". As does the 2nd. And the 4th. As does Article I, Section 2 of the U.S. Constitution.
"The people" refers to a group -- esentially the voters; those with a connection to the country. Those with "full" rights. The enfranchised body politic.
It does not mean every person, if that's what you're getting at. What are you getting at?
What is a "group" made up of? If you are excluding some from said "group", then you aren't talking about the entire "group" any more. You are talking a "select few". This weird little elitist view of yours runs contrary to the Constitution.
Not really a surprise coming from you...
This statement was one man's opinion. He was certainly a patriot, but he wasn't a Founder or political figure.
Whatever. Arms into the hands of all American males between the ages of eighteen and forty-five? Hey, that WAS the militia. Who else was the second amendment to protect? Slaves? Yeah, right. Women, children, Indians, foreigners?
But the sentence following your cite is noteworthy.
"While late eighteenth-century Americans distinguished between the individual's right to possess arms and the need for a militia in which to bear them, more often than not they considered these rights inseparable."
"Bear" had a military connotation. Not just to carry arms, but to carry them into battle. Meaning the second amendment was referring to the collective right of a militia rather than an individual right.
If that's true.
Now, that does not mean that an unprotected right may never be infringed. Congress may reasonably regulate fundamental rights.
If Congress wishes to constitutionally regulate the interstate commerce of particular weapons due to a compelling state interest,they have only the people to answer to.
I thought you said you read Parker. No?
"Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. In United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil:
“[T]he people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. CONST., amdt. 1; Art. I, § 2, cl. 1.
While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
That doesn’t answer the question. If Congress can “constitutionally regulate the interstate commerce of particular weapons”, what prevents them from incrementally regulating out of existence the ability to obtain or own any kind of firearm at all? According to you, nothing in the Constitution.
From the paragraph you omitted:
The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. In United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil:
Or the paragraph after...
Id. at 265. It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right. The Court’s discussion certainly indicates—if it does not definitively determine—that we should not regard “the people” in the Second Amendment as somehow restricted to a small subset of “the people” meriting protection under the other Amendments’ use of that same term.
In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today. See Robert E. Shallope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” the Equal Protection Clause of the Fourteenth Amendment is understood to have corrected that initial constitutional shortcoming.
Dumba$$...
Mainly the people/the voters.
The courts could rule that there is no compelling state interest to prohibit a certain class of weapons. Or that the law is too broad. The states could claim their ability to form a militia is infringed. If gun crime increases, the law could be challenged on a public health/public safety basis.
But I see the government going in the opposite direction on gun laws. The federal AWB was allowed to expire. More states are allowing concealed carry. More states are passing "stand your ground" laws rather than "retreat if possible".
I'm more concerned about the erosion of our 4th amendment rights.
Then by your interpretation of the Constitution, you don’t see anything there that would prevent Congress from outlawing the ownership of any firearm, and still be within their legitimately granted powers under the Commerce Clause.
Huh? What does the 9th Circuit have to do with my post? I cited Parker. Parker cited United States v. Verdugo- Urquidez. That case defined "the people" as a certain class of individuals, which answered your question.
My point, if you forgot, was that "the people" did not mean every person. Why you went off on a tangent of "individual" vs "collective" is beyond me.
And stop the insults. I'll see to it that you get equal time from the mods if I have to go to Jim to do it.
I don't see anything whatsoever in the Commerce Clause that lists any exceptions to what Congress is allowed to regulate.
Now, at some point they would be encroaching on the states' ability to form a militia which would violate the second amendment and Article I, Section 8 of the U.S. Constitution. Or the health and safety of individual citizens. Or simply the sensibilities of the majority of Americans who won't tolerate it and who will vote them out of office.
That's the problem in a nutshell. You don't see it there, and are single mindedly uninterested in looking for it, or admitting it's existence when presented with it from anywhere else.
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