Court agrees to rule on gun case

SCOTUSBLOG.com ^ | 11-20-07 | SCOTUSblog

[ctdonath2]

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if it, in the end, decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

The city of Washington’s appeal (District of Columbia v. Heller, 07-290) is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the right is a personal one, at least to have a gun for self-defense in one’s own home.

The Justices chose to write out for themselves the question(s) they will undertake to answer. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

Here is the way the Court phrased the granted issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

[HKMk23]

...inundate them with letters, emails, phone calls, and faxes, asking them to STFU--(in nice, polite language, of course).

Is "¿Porque no te callas?" nice enough??

[robertpaulsen]

"You're making a very amateur attempt to define some liberties ..."

As opposed to a very childish attempt to define a right to assembly as one person? From that, I suppose you can then conclude that the second amendment protects a one man Militia?

Exceptions aside. I'm referring to an individual right exercised collectively. There is such a thing in the U.S. Contitution. I also mentioned voting which you ignored.

[Reaganwuzthebest]

The founding fathers made a clear distinction between a standing army (which they did not want) and the militia made up of all of the people.

And that only assumes that the first part of the Second Amendment absolutely defines the second part of it. Even under those limited conditions, of which few scholars accept as the amendment's sole basis it's clear the Founders considered the necessity of a well-armed population. It's a fact though that in the debates the right to bear arms was also considered legitimate for purposes of protection of self, family and of one's property. Even the liberal Lawrence Tribe agreed to the individual right after reviewing the historic documents, which put the amendment into full context.

[Reaganwuzthebest]

As opposed to a very childish attempt to define a right to assembly as one person?

It's more about the right to petition the government for a redress of grievances. That's also part of the statement of the right. Assembling assumes more than one person is gathering however as a right it does not have to be exercised collectively. I'm free go all by my lonesome self and so are you and complain to a congressman or stand outside his office with a picket sign.

[robertpaulsen]

"and the militia made up of all of the people."

Not ALL the people. Not even all the citizens. Maybe you should do some reading, huh?

"It absolutely did not mean that the militia was under state control."

The Militia envisioned by the Founding Fathers and described in the U.S. Constitution, Article I, Section 8, Clause 16 and the Militia Act of 1792 had officers appointed by the state and the Militia reporting to the Governor of each state. That's not under state control? More reading for you.

[publiusF27]

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

This is ominous. The "question" as formulated represents a poison-pill which can be used as a pretext to destroy the Second Amendment. The conflation of the term "well-regulated militia" with "state-regulated militia" is a dangerous sophistry. The terms are not synonymous.

The scotusblog article commented on that:

Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.

The other question relates to the third DC Code section cited: whether "any" gun kept in the home had to be disassembled or trigger locked.

The questions the Court posed for themselves could be worse, and there are lots of possible answers.

[MileHi]

Hmmm. I read that post differently.

[publiusF27]

I just got a notice from the Brady Bunch (very anti 2A bunch, led by Sarah Brady. They are begging for at least $50,000 in quick donations so that they can file a Amicus Curare brief against the 2A being a personal right.

They have already written a couple of them, which you can see here, if you really think that's necessary. ;-)

[robertpaulsen]

"All robertpaulsen does is argue against the 2A"

I argue against the second amendment? Not that you can support that statement.

[meyer]

Grab your ankles, people. The supremes are about to stick it to the constitution again.

[meyer]

When it's time to bury them, it's already time to dig them up.

Well-stated!

[publiusF27]

Read the amicus briefs.

Here Texas sets out the individual rights case.

Here is the Second Amendment Foundation, et al., “Brandeis” Brief on Criminology

Here is the Congress of Racial Equality Brief on racist roots of gun control

There are lots more, including from the other side, but plenty to learn about what our side will be saying to the Supreme Court.

[robertpaulsen]

"It's a fact though that in the debates the right to bear arms was also considered legitimate for purposes of protection of self, family and of one's property."

I agree. Individuals have the right to bear arms for purposes of protection of self, family and of one's property. State constitutions protect that right. I'm not aware of any Founder saying the second amendment protected that right for that purpose.

That is what we're discussing on this thread, correct -- the second amendment and what it protects? We're not talking about state constitutions, are we?

"it's clear the Founders considered the necessity of a well-armed population."

No. They actually argued against that, saying that disciplining "all the militia" would be "as futile as it would be injurious". They preferred a select state Militia, amounting to less than 20% of the population.

[publiusF27]

Don’t bicker with them, discuss it with me. ;) What do you think of the question the Court gave themselves?

[45Auto]

What we need is to be certain that Kennedy, now the swing vote, affirms the individual right aspect. He is the key to the whole thing. Does anyone know if he has expressed an opinion on the 2nd?

[45Auto]

Do you know if Justice Kennedy has ever expressed an opinion on the 2nd?

[patton]

Ginsberg is quoted as pro-2A in Parker/Heller.

I think the calculus used here is incorrect.

[robertpaulsen]

Assembling poses a potential threat to government, and that's the right they wish protected. Assembling, by definition, involves a group of people. The right to assemble, though an individual right, is exercised collectively.

You don't agree? Fine.

[publiusF27]

They actually argued against that, saying that disciplining "all the militia" would be "as futile as it would be injurious". They preferred a select state Militia, amounting to less than 20% of the population.

You are referencing Federalist 29, written by Hamilton, who was the biggest big government guy of his day. Others didn't feel the same way. You've also mischaracterized what Hamilton said.

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. 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.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.

It looks to me like Hamilton hoped that the people at large should be properly armed, and ALSO that a select corps would be formed and given military training. That idea was treated with suspicion by anti-federalists, as evidenced by Hamilton saying this in Federalist 29:

It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.