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.

[Dead Corpse]

If the objective was to get firearms out of the hands of ordinary citizens and under exclusive control of the government

Which is what you are doing now. You are arguing that there is no "Right" to begin with and that the plain meaning of the text written doesn't mean exactly what the Founders said it meant.

[robertpaulsen]

"So... despite the prohibition being general, you still insist that its only "certain" people, acting as government agents, that have this Right."

The right to purchase an M4? Yes.

"Despite there being tons of evidence that the "People" is all people within the jurisdiction of the United States"

An illegal alien here is within the jurisdiction of the United States. He gets an M4 too? Hell, a prisoner is within the jurisdiction of the United States -- what does he get, an M249 SAW?

Tons of evidence.

"IOW... you are just another anti-gun moron with an agenda."

You're just a moron.

[devistate one four]

I’ve read it time and again! I’m trying to get more people to read it and thus have an argument when opposers say 2nd amendment is for militia. As for your age? I’d say you were beyond age for malitia and promoted to self standing army! Semper Fi

[Dead Corpse]

The right to purchase an M4? Yes.

There is no differentiation of "arms" protected. Only in your and Sarah Brady's head.

An illegal is already committing a crime and someone incarcerated has been through a trial and has lost access to his freedoms as punishment. Are you saying we are ALL a priori criminals then?

You're just a moron.

And you are not only a moron, you are an anti-Rights, anti-Constitution, hoplophobic jackass.

[devistate one four]

Well regulated? I submit my source”The second amendment primer” by Les Adams. The firearm should be modern and the owner needs to know how to use it.
Ahh,the ladies. I’ve had many in my self defense classes and NRA pistol, and personal defense classes. Best students out there! Times are changing and I suspect they will be included in the militia some day.

[robertpaulsen]

"There is no differentiation of "arms" protected."

Yeah. Stupid Miller court.

"And you are not only a moron, you are an anti-Rights, anti-Constitution, hoplophobic jackass."

We are done on this thread.

[Dead Corpse]

Yeah. Stupid Miller court.

Actually, the Miller court remanded that question to a Lower court who was unable to rule on that as the respondents had DIED by that point. As has been pointed out, that "limitation" suggested by the Miller court was a false dichotomy parroted by the likes of the Brady Campaign. Seeing as how things like the "Master Key" and "Trench Brooms" have enormous "militia" utility, it was kind of a stupid question for the SCOTUS to get hung up on.

We are done on this thread.

So you are going to stop posting? Good. About damn time...

[tacticalogic]

Which is what you are doing now. You are arguing that there is no "Right" to begin with and that the plain meaning of the text written doesn't mean exactly what the Founders said it meant.

Taken together, everything he says is a formula for incrementalism. You don't have a right as an American citizen to keep and bear arms. You only have that right as a citizen of your state. Now there are 50 different RKBA's which can all be attacked individually. The right to keep and bear arms itself is further divided into any number of "rights" to keep and bear various kinds and descriptions of firearms, each of which can be infringed while still maintaining that you still have the right to keep and bear arms as long as some of them (no matter how trivial) remain.

[Dead Corpse]

I know that. I've pointed it out before. We've been dancing this dance for years. Neither of us has budged an inch. Most folks get tired of him and just ignore him.

I've just got some time to waste right now. ;-)

[tacticalogic]

Did you happen to catch what it was that got him set in the corner for 4 days? I missed it.

[Dead Corpse]

Getting personal. Plus, I think a lot of people were leaning on the Abuse button.

He's a troll. His posting history here shows he's blatantly a troll. But the Mods leave him here as a token Brady shill. It's good for the web-hits I guess...

[publiusF27]

I always learn something from you, robert. Thanks.

Yes, he envisioned the states using the Commerce Clause to resolve their differences in federal courts, rather than Congress passing a law correcting every single dispute - the "dormant commerce clause", if you will. And that's exactly how the Commerce Clause was initially used.

Of course, it was never limited to that. That's not what you're arguing, is it?

No. The whole concept of a "dormant commerce clause" presupposes that Congress might choose to regulate.

I'm arguing that when we have a federal law saying guns near schools affect interstate commerce and are a federal matter, we have strayed outside the intent of "regulating commerce among the several states." We have a general police power of the kind that those other guys who called themselves "publius" repeatedly said the federal government could never have.

I thought it (Lopez) was correctly decided the first time.

Rhenquist wrote the opinion of the Court, in which he said:

On appeal, respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause." 2 F. 3d 1342, 1367-1368 (1993). Because of the importance of the issue, we granted certiorari, 511 U. S. ___ (1994), and we now affirm.

After that opinion, Congress went back and put some congressional findings in the law:

(1) The Congress finds and declares that—

(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;

(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;

(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary [3] the House of Representatives and the Committee on the Judiciary of the Senate;

(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;

(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;

(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;

(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;

(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves—even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and

(I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection.

If the case were tried again, no court would say there are not sufficient Congressional findings in the law, a primary objection to the previous version of the federal gun free school zones act. In the Raich case, Justice O'Connor, joined by Rhenquist and Thomas, said in her dissent that "If the Court is right, then Lopez stands for nothing more than a drafting guide..."

I take that to mean three SC Justices agree with me that a new challenge to the federal gun free school zones act would fail because Congress made the changes to the law which the Courts were requiring. In other words, Congress gets to declare that they have authority over something because it affects interstate commerce, and that's all it takes.

I think this kind of thing shows the commerce clause jurisprudence is out of control and should be revisited. Are you arguing that there are no limits to the commerce power? How then could Madison claim that the powers of the federal government are "few and defined"? Defined to be limitless?

The Founding Fathers never said or even implied that the second amendment protected "All ... who have an operational trigger finger". A living constitution, however, would allow for that.

I think they did imply exactly that. They said the right of the people to keep and bear arms shall not be infringed. They also said why this was necessary: the people are the militia.

You have selected a single quote by Madison to suggest that they really only meant a few white guys of fighting age who were part of a regularly trained militia. That's not what Hamilton said in Federalist 29:

Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

He talked of forming and training "a select corps of moderate extent" but he also talked about arms in the hands of "the people at large."

Congress hasn't seen fit to call me out to see that I have not neglected my duty to own some military weapons. Does that mean that I'm not to act as part of the militia, should the need arise?

The "necessary and proper" clause has been used to stretch the meaning of the commerce clause beyond recognition. What if it became necessary for my wife or my neighbor's young son to use some of our guns to defend our little patch of ground against invading troops or the dreaded standing army? Would the necessity make it proper that they act as part of the militia? Both have operational trigger fingers, and darn good aim.

[robertpaulsen]

(FWIW, those findings appear to be patterned after the findings in the Controlled Substances Act.)

"If the case were tried again, no court would say there are not sufficient Congressional findings in the law, a primary objection to the previous version of the federal gun free school zones act."

I respectfully disagree. The primary objection in Lopez was reiterated in US v Morrison: "First, in Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority to regulate such possession.

Secondarily was the jurisdictional element -- the nexus to interstate commerce. Congress addressed this secondary consideration with their "findings".

"I take that to mean three SC Justices agree with me that a new challenge to the federal gun free school zones act would fail because Congress made the changes to the law which the Courts were requiring."

No, the court made clear in Morrison: "Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce." They agreed it would open Pandora's box.

"I think this kind of thing shows the commerce clause jurisprudence is out of control and should be revisited"

I think Lopez and Morrison demonstrate that Congress is out of control. Fortunately, we had a Supreme Court that put them in their place.

"Are you arguing that there are no limits to the commerce power?"

Other than constitutional limits, no. Perhaps you can tell me what interstate commerce Congress should not be allowed to regulate?

"He talked of forming and training "a select corps of moderate extent" but he also talked about arms in the hands of "the people at large."

Who would be assembled once or twice in the course of a year. These were the militia.

In the paragraph prior, he states that training "all the militia" would be "as futile as it would be injurious". So even he conceded that the well regulated Militia necessary to the security of a free state did not consist of every person or even "all the militia".

"Does that mean that I'm not to act as part of the militia, should the need arise?"

You are part of the "unorganized" militia. You get a pointed stick.

"Would the necessity make it proper that they act as part of the militia?

Because a right is not protected doesn't mean you don't have the right. Millions of Californians legally own guns, yet there is nothing in the California State Constitution that protects their RKBA.

[bone52]

The problem is that under Supreme Court decisions, there is no national right to bear arms. In Barron v. Mayor and City Council of Baltimore the court found the Bill of Rights did not apply to the states.

Although the 14th Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”, and the authors of the amendment said it extended the Bill of Rights to the States, the Supreme Court in the Slaughter House cases found that the Bill of Rights was not extended to the states.

So, we are protected from action by the federal government with the 2nd Amendment, and left with no protections for our rights to bear arms other than those found in our state constitutions.

In a perfect world, the Supreme Court will take these cases, find a personal right, and incorporate the Bill of Rights against the states so we would have national protection of the right to bear arms.

Maybe, though, our bigger problem is that we look to the Supreme Court to determine the limitations of our rights, when really they have no other authority then what they have given themselves.

[robertpaulsen]

Allow me to clarify my response to "Are you arguing that there are no limits to the commerce power?"

Yes. I argue that there are no limits to the commerce power, other than constitutional limits.

[publiusF27]

I think Lopez and Morrison demonstrate that Congress is out of control. Fortunately, we had a Supreme Court that put them in their place.

But they didn't stay in their place long, did they? The gun free school zones act was back the next year, and has been on the books again for over a decade now.

Perhaps you can tell me what interstate commerce Congress should not be allowed to regulate?

If they stuck to regulating interstate commerce, I wouldn't have a problem. My problem is with living document theorists who have decided that noneconomic, intrastate activities such as growing your own wheat or cannabis plant can be regulated because of "aggregation" creating "substantial effects" on interstate commerce. 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.

You are part of the "unorganized" militia. You get a pointed stick.

Nothing in the 2nd amendment says that ONLY the organized militia have the right to bear arms. It says the people have that right. Where is your evidence that the Founders intended for Congress to have the power to disarm the unorganized militia? Did they ever talk about limiting the people to pointed sticks?

"And that said Constitution be never construed to authorize Congress...to prevent the people of the Unites States, who are peaceable citizens, from keeping their own arms..." SAM ADAMS, in the Philadelphia Independent Gazetteer, Aug. 20, 1789.

"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that is good." -George Washington

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” ~ Noah Webster

"I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason

Thomas Paine: "Arms like laws discourage and keep the invader and plunderer in awe and preserve order in the world as well as property."

"A militia, when properly formed, are in fact the people themselves. ... The Constitution ought to secure a genuine [militia] and guard against a select militia, by providing that the militias shall always be kept well organized, armed, and disciplined, and include ... all men capable of bearing arms, and that all regulations tending to render this militia useless and defenseless, by establishing select corps of militia, or distinct bodies of military men not having permanent interests and attachments in the community [are] to be avoided. ... 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." --Richard Henry Lee

[robertpaulsen]

"In a perfect world, the Supreme Court will take these cases, find a personal right, and incorporate the Bill of Rights against the states so we would have national protection of the right to bear arms."

Maybe.

Keep in mind that once the second amendment is incorporated it applies to all the states. More importantly, how the U.S. Supreme Court interprets the second amendment also applies to all the states.

If five liberal justices on some future court say that "keep" means keep in a state armory, "bear" does not include concealed carry, or "arms" do not include handguns, then every state must abide by that.

Can't happen? We've recently seen the court rule that nude dancing and flag burning are protected speech, but political ads days before an election are not. Abortion is a right to privacy as is homosexual sodomy. The Kelo decision. Freedom from religion. On and on.

Do you want them also interpreting the second amendment?

[publiusF27]

If five liberal justices on some future court say that "keep" means keep in a state armory, "bear" does not include concealed carry, or "arms" do not include handguns, then every state must abide by that.

Abide by what? Is the SC going to force Florida to rescind concealed carry laws? How would that work, exactly?

Now, maybe Congress could pass a law saying the carrying of concealed weapons affects interstate commerce and is prohibited, and the SC could uphold that interpretation of the commerce clause and say it does not violate the second amendment, but without the help of Congress, I don't see how they do anything about state concealed carry laws. And Congress can't do anything about it without the living document interpretation of the commerce clause.

[publiusF27]

Yes. I argue that there are no limits to the commerce power, other than constitutional limits.

Wow, then we agree! Who could have imagined it? You think the commerce power should have only the limits found in the clause: that Congress can regulate interstate commerce. ;-)

[bone52]

Once the Supreme Court decides that the right to bear arms is an individual right, there will be incredible reliance on that fact, individual as well as corporate. Additionally, the language of the amendment, as well as the circumstances leading to it are sufficiently clear that once an interpretation is made, the court could not easily change their position without discrediting themselves, and because the language is so clear it is hard to imagine the evolution of a legal principal undermining this right. So, this would be a very strong case for stare decisis as outlined in Casey and would be hard for liberal courts to attack.

Lastly, the court’s interpretation of the 2nd Amendment would set a minimum amount of protection that the states would be required to give arms. Any future Supreme Court decision reinterpreting the second amendment would reinterpret this minimum, not the maximum amount of protection required. Thus, we would be in the same situation as now, except we would have a minimum level of protection in every state.