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?”

[romanesq]

“This could be a landslide.

I don’t see how it could come out any other way. All the honest scholarship on statements and intent of the founders points to an individual right.”

That’s why I also tend to be optimistic. This is an uphill battle for the moveable feast crowd. And although it’s pure speculation, I could see John Roberts as the perfect justice to lead that majority opinion that is undeniable and lasting.

Fingers crossed.

[robertpaulsen]

"In a way the Court should not have to rule on whether the right is an individual, because if it weren't, the Miller court would have ruled that his keeping of even a militia suitable weapon was not protected because he didn't formally belong to any state organized militia."

That's a gross misrepresentation of the Miller case. The question to the U.S. Supreme Court was NOT, "Does Mr. Miller have the right to keep and bear a sawed-off shotgun?"

The question before the U.S. Supreme Court was, "Does Section 11 of the 1934 National Firearms Act violate the second amendment?" At least that's how my copy of the case reads.

[robertpaulsen]

"No it doesn't, it protects a right of the people."

You are correct. I'm getting lazy.

The point I was making was that, "The second amendment only protects the right of the people to keep and bear arms as part of a well regulated Militia, not the right of the people to keep and bear arms as part of an unorganized militia."

The right of the people to keep and bear arms as part of an unorganized militia is protected by each state.

[robertpaulsen]

"The language of the Second Amendment makes clear that it refers to a pre-existing right."

Correct. The pre-existing individual right to keep arms, and bear those arms into battle, as part of a well regulated state Militia. That right is protected from federal infringement by the second amendment.

If there's some other pre-existing right you had in mind, I'd like to hear it -- because it means that right has been violated now for over 200 years, wouldn't you agree? And how is that possible?

[Filo]

Go to The Militia Act of 1792. That document defines the state Militia. In detail.

I did read it and, again, how does it "define" the militia?

There are rules for drilling, rules for what to bring and rules for how to select officers. There is nothing saying that a militia is such and such.

The closest it comes, from what I can see, is that ever free man (note that it's two words) from 18-45 is a member. Specifically: "That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia..."

But again, the militia clause of the second is subordinate to the main clause: "the right of the people to keep and bear arms shall not be infringed."

It's not really that hard to understand.

Jefferson was not talking about the second amendment. He was proposing that language for the 1776 Virginia State Constitution, 12 years before the second amendment was written. It was rejected by the Virginia State legislature.

I didn't say that he was. All I said was that his bias for having an armed populous and his understanding of the "God given" right to keep and bear arms was clear and obvious from his writings.

I'd normally say that you and your ilk are welcome to keep misrepresenting and misinterpreting that to your hearts content except that in this case you are doing grevous harm to me and my country.

That can not be tolerated.

I know. But, like Jefferson, they're not referring to a right protected by the second amendment.

No, they absolutely are. They are unanimous in their support for a freely armed populous.

I'm sure the Founding Fathers would say that it's up to the state in which the resident alien lives. In 1792, the second amendment, however, did not protect the RKBA of non-citizens. It still doesn't.

In this I have to agree with you. The Constitution is an American document that only protects citizens and legal residents (to a lesser extent.)

[robertpaulsen]

"If your interpretation was correct, our Founders could very easily have written, "The power of the state-regulated militias to arm themselves shall not be infringed".

And if your interpretation was correct, our Founders could very easily have limited the second amendment to, "The right of citizens to keep and bear arms shall not be infringed."

But they didn't.

(Oh, and it's not "state-regulated militias". It's well regulated state Militias. Congress has the power to organize, arm, and discipline the state Militias.

[robertpaulsen]

Are they spelling out Y-M-C-A?

[robertpaulsen]

"For instance, lower court decisions have nothing to do with what SCOTUS does"

Hmmmmm. In US v Miller, the U.S. Supreme Court cited Aymette v. State of Tennessee, a state case, to support their decision to limit the Miller case to militia-type weapons.

You just continue to ignore that man behind the curtain. The great abundy has spoken.

[longtermmemmory]

I hope as many Second Amendment Rights groups step up to file Amicus Briefs on this issue.

It should not be left to the fictional lawyering of ACLU Ginsberg.

(for those in rio linda, an amicus brief is a “friend of the court filing” generally filed by a non-party to the case who has an interest in the case. The Brady/Gun Control Inc., Mayor Bloomberg Administration, Chicago’s anti gun officials, and even the AG’s office would be usual suspects to file AGAINST the second amendment.)

You have to petition the USSC for permission to file as a non-party.

[robertpaulsen]

"Still even if the word "bear" was meant strictly for military use when needed as that state court decision seems to believe it doesn't preclude the people from keeping arms."

Exactly right, and what most people don't understand. The California State Constitution doesn't protect the RKBA, but millions of Californians own them. Because a right is not protected does't mean the activity is illegal.

"Again under your theory if the 2nd Amendment were only about militias"

Only about protecting Militias. Not that Militias were the only ones with the right. Everyone has the right to keep and bear arms.

[longtermmemmory]

true, however when “cert denied” cases are used in a lower case to argue a point new to another court jurisdiction it can be persuasive if not binding. (aka see your honor, you do not have to reinvent the wheel.) This is particularly useful in a day and age when you can research the ENTIRE US legal jurisdictional database in a single keystroke.

[Filo]

These last two are proved as bogus quotes. The supposed "Washington" quote is part of a larger one that mentions things that had not yet come on the scence, and that 99% thing sounds like an Ivory Soap commerical, not GW. The Jefferson "quote" does sound like Jefferson, but no one has been able to find it in any of the various "collected works" of TJ, I've looked in two collections myself, with no joy.

Bummer. You just can't trust the internet today! :D.

Still, the fact that those particular quotes are bogus does nothing to dispell the reality that the founding fathers were unabashed armed populous advocates.

[robertpaulsen]

"I didn't say that he was. All I said was that his bias for having an armed populous"

Well, when you stick that quote into the middle of a discussion about what the second amendment protects, what are we to assume?

Maybe you could refrain from posting irrelevant quotes? It would save everyone alot of time.

"I'd normally say that you and your ilk are welcome to keep misrepresenting and misinterpreting that to your hearts content"

Oh, that's rich, coming on the heels of you misrepresenting Jefferson's quote as referencing the second amendment.

"They are unanimous in their support for a freely armed populous."

Yes they are. But can you find for me one quote that says the second amendment protects a freely armed populous? All the quotes I find refer to the second amendment protection of a select group of individuals -- "the people", "the whole people", "the people at large".

"The Constitution is an American document that only protects citizens and legal residents (to a lesser extent.)"

Parts of the U.S. Constitution protect citizens, parts protect "the people", parts protect every person -- citizen or not. The Founding Fathers were quite specific as to the language they used. Distorting that usage is, to use your words, not to be tolerated.

[longtermmemmory]

hence the fiction of the magic morphing language of the constitution. Words have meaning and if the left is able to change a definition to a word to the left wing view, the sentence will change accordingly.

(ala the end of 1984 when orwell explains that in his book under the newspeak language the Preamble of the Declaration of Independence could ONLY be expressed with the words “crime think”.)

That is why the left is creating civil unions which are marriage without marriage.

That is why the left created the fiction of “hate crime”.

that is why the left created growth managment or environmental impact laws.

[longtermmemmory]

“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?”>


I don't like how the justices phrased that question. It is the way an ivory tower professor would telegraph the issue is to be resolved in the form of the collectivist anti-individual rights point of view. Do we know which justice was phrased this?

[Filo]

Well, when you stick that quote into the middle of a discussion about what the second amendment protects, what are we to assume?

Maybe you could refrain from posting irrelevant quotes? It would save everyone alot of time.

It's not at all irrelevant; it's just not directly about the Second Amendment to the American Constitution. It is, however, a quote on the same topic by one of the authors of that text. As such it is directly applicable.

Maybe you could refrain from your usual nonsense and dissembling? I'm quite sure from what you've written that you are capable of understanding the English language which leads me to the inescapable conclusion that you are, as I've said before, being deliberately illiterate.

Oh, that's rich, coming on the heels of you misrepresenting Jefferson's quote as referencing the second amendment.

The problem is that I did no such thing. The quotes I've cited clearly indicate an unwavering support by the framers of the Constitution for an armed populous. It is impossible to read their words and not come to this conclusion without being overtly dishonest about it, as you are being.

Yes they are. But can you find for me one quote that says the second amendment protects a freely armed populous? All the quotes I find refer to the second amendment protection of a select group of individuals -- "the people", "the whole people", "the people at large".

So what's the argument then? "The right of the people to keep and bear arms shall not be infringed."

There is your quote. It clearly protects the right of the people (not trees, houses, buggies or beer steins) to keep and bear arms without infringement. It is in a document that was specifically written to define, and in this case curb, the powers of the government. It was written along with several other phrases that clearly and unequivocally protect individual rights. Every person is a part of the people. That applies for free speech and assembly, keeping and bearing arms, security from illegal search and seizure, security from self incrimination and so on.

"The People" means the same thing throughout the Bill of Rights and in all cases it protects the rights of individuals. It is an outright lie to represent it as meaning anything else.

[tacticalogic]

That is why the left created the fiction of “hate crime”.

that is why the left created growth managment or environmental impact laws.

And to cover them all, they created the "substantial effects doctrine".

[robertpaulsen]

"Every person is a part of the people. The People" means the same thing throughout the Bill of Rights and in all cases it protects the rights of individuals. It is an outright lie to represent it as meaning anything else."

Article I, Section 2 of the U.S. Constitution reads (my bold), "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

When that was written, who were "the people"? You say it was every person -- meaning children, slaves, foreign visitors, convicts, women, Indians, and the insane? I told you before that words mean things. Yet you insist that "the people" means every person. Fine.

[Tarpon]

Life liberty and pursuit of happiness. Your life is protected by your right to the means of defense — Your right to own weapons.

NO the violations have occurred recently as liberals had gotten bold in there attempts to substitute abortion for the Second Amendment. Before that, most people who wanted kept firearms and no one complained or thought anything of it.

Democrats, raise taxes fund socialism and gun control. If you can’t do it yourself, ask history what King George III had to say about it all.

[Filo]

Article I, Section 2 of the U.S. Constitution reads (my bold), "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

When that was written, who were "the people"? You say it was every person -- meaning children, slaves, foreign visitors, convicts, women, Indians, and the insane? I told you before that words mean things. Yet you insist that "the people" means every person. Fine.

Your distinction, while accurate, is irrelevant.

Later amendments gave equal rights to former slaves and women.

Children, convicts and the insane are partial exceptions.

That still does nothing to disprove that the Second Amendment grants individual rights and that a collective rights argument is complete and utter bullshit.

Are you finally admitting that there is an individual right to keep and bear arms?