Posted on 11/20/2007 10:14:54 AM PST by 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?”
Most of the states which protect an individual right to keep and bear arms do so with the same reference to a pre-existing right.
In Pennsylvainia, passed in 1790:"The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. "
It should be obvious that the grammar suggests that this pre-existing right included bearing arms in defence of the individual. And the wording makes clear that the right additionally includes the right to defend the state. So how does the pre-existing "right of the people" in the Second Amendment not include what the people in Pennsylvania recognized?
And further, the grossest violations of the Second Amendment began with the NFA 1934. Prior to that, most gun control was clearly aimed at disarming minorities. The Dred Scott decision makes clear that a free person could carry weapons wherever they went. The described right to keep and bear arms was not limited, despite the fact that freedom of speech was at that time.
If you mean to imply that "the people" were only white, property opening males you'd be mistaken. In terms of the rights enumerated in the BoR they included women and non-property citizens at the time as well. Slaves and Indians did not qualify because they weren't considered citizens of US back then but that obviously has since changed.
The bottom line is "the people" in the BoR were defined as the citizens of the US. A single woman in the year 1800 had just as much a right to keep a firearm in her home as a male. The First, Fourth and Fifth Amendments protected them also.
From a grammatical standpoint, the Second Amendment says just that and more. Anti-gunners would take the simpler version and trot out their "the Constitution is not a suicide pact" to claim that people do not have the right to arms which threaten the state.
The history of the Revolution makes clear that the arming of the general populace was an issue of extreme importance. The occupiers of Boston demanded that people surrender their arms as a price for being allowed to leave Boston with their other goods. These were not just people who were in an organized militia.
So, wouldn't it follow, therefore, that the second amendment was protecting members of the Militia?
You could use the same arugment to say that the Representatives are chosen by “the people”, and the Senators are chosen by the State Legislatures, so state legislators aren’t “people”.
That's absurd. Are you saying that women had no right to free speech back in 1792, or the right to be secure in their homes or didn't have the right to assemble? Of course they did and in fact they exercised those rights continuously from the very beginning when fighting for greater rights like voting or when pushing for social change.
The Justices have their own federally-paid bodyguards, I believe. Their law clerks don't, and will probably let the Justices know their own opinions
No. Only "the people" voted (Article I, Section 2). Women didn't vote in 1792. Propertyless citizens didn't vote in 1792. Children (who are citizens) didn't vote. Still don't.
"The people" were the rich white guys. They voted. They were the Militia. Their RKBA was protected under the second amendment.
"A single woman in the year 1800 had just as much a right to keep a firearm in her home as a male."
Yes, she did. The second amendment, however, didn't protect it.
The “white guy” applied to the militia back then yes because males do the fighting. But again as has been pointed out to you a million times the Second Amendment is not strictly about a militia and never has been. It makes no sense then to apply every right in the Constitution as prescribed to “the people” to all citizens except the 2nd Amendment. The inconsistency is so obvious as to make the argument absurd.
And as proof, you offer up the 1790 State of Pennsylvania Constitution which has similar wording? Did I get that right?
Their right to free speech was protected from federal infringement, but their right to be secure from unreasonable searches and their right to assembly was not. Why would it be?
Where do you come up with the notion that women had the right to free speech but not to be secure from unreasonable searches or a right to assemble? You don't see the inconsistency? You want us to believe that "the people" included women when it came to free speech but did not include them when it was about firearms or to be secure from unreasonable searches and a right to peacefully assemble.
You'll have to show us some evidence before that interpretation of the BoR can be swallowed.
the problem is that elitists like those is the black robbed ivory towers of the judiciary have an “us vs them” perspective of the rabble of the the non-judiciary. You don’t give weapons to serfs you don’t control.
(ie notice how democrats no longer push “let every vote count”)
If we're looking for the original meaning of "the people" in the second amendment, then 1792 is the place to go. We have the Militia Act telling us exactly who was in the Militia. We know who voted in 1792, and that tells us who "the people" were.
The common factor is white, male, citizen landowners. They had full rights. Their RKBA was protected. They were the Militia.
Collected individuals? Is that something you just invented? A person that had "standing"? What is that? Are we now in court?
That Act lays out who serves in the militia, not who "the people" is. If it did then women had no other rights as per the BoR and we know that's not true because you yourself have told us they did have a right to free speech.
You're trying to have it both ways while providing no evidence that "the people" had different meanings depending on what right we're talking about.
The first amendment doesn’t limit the protection of speech or the press or religion. It does limit the protection of the right to assemble to “the people”. You might try reading it before asking these questions.
Perhaps you’d like to provide evidence then that women were prevented from assembling under the grounds they had no such right or that the government could invade the homes of single women or citizens who were renting and without property. I’d like to see a judicial case that suggests only white property owners had those rights prior to the 14th Amendment. I’m betting you won’t find any because “the people” applied to all citizens.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.