Posted on 11/27/2007 2:58:46 PM PST by neverdem
For some 30 years, the District of Columbia has banned handgun ownership for private citizens. It was approved by that city's council in the wake of terrible gun violence and a rising murder rate in the nation's capital.
The ban has stood through this time with other council votes, but without any official review by the U.S. Supreme Court.
Sometime next year, the high court will make a ruling on whether that law is constitutional.
It is surprising to us that it has taken this long for the court to get this case. It would seem that it would have gone to the highest appeal long before now. We do not understand all the legal entanglements that must have kept it off the court's docket, but it is certainly there now.
And now, if the court is acting properly, the D.C. gun ban should be struck down.
This is a clear case of constitutionality, not politics, not conservative or liberal. If Constitution's Bill of Rights clearly allows gun private gun ownership anywhere — and we believe it does — then it allows it in the District of Columbia.
"The right to keep and bear arms shall not be infringed," is what the Second Amendment says, and there seems to be little "wiggle" room in that statement.
In some instances — Washington, D.C. being one of them — we admit we despair of so many guns in the hands of so many people who would use them the wrong way, but the answer is not to abrogate the Constitution.
If one portion of the Bill of Rights can be limited by a local government, why can't another? There is no logic in saying on the Second Amendment is up for local review. To continue to allow this is to invite a city council or state legislature somewhere to decide that the First Amendment is too broad, or that the Fourth Amendment is too restrictive on law enforcement.
We know there are passionate arguments for gun control and that is part of the problem: The passion has blotted out clear thinking. This time the NRA is right. The law should go.
This is an argument for 14th Amendment incorporation right here as Madison seems to be saying that the purpose of the BoR was to guarantee liberty at the state level as well since some states didn't have individual rights spelled out or they were defective. In other words he didn't believe that the federal BoR was to be limited to the federal government only. Interesting that the collectivists don't bring that up.
As per Art 6 para 2 and the actual legislation passed around to the States.
To whit:
The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791
Preamble
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Seriously gives the lie to the "incorporation" doctrine that was early on used to keep certain minorities from claiming the protections for their Rights as freedmen.
It all came down to the courts when they took over "interpreting" the Constitution and they went on the side of the BoR being a federal limitation only and then held that standard to all the other amendments.
If "old" white male citizens served, their right would be protected. If they didn't serve, then their right would not be protected.
The second amendment protects the right of A) "the people" to keep and bear arms as B) part of a well regulated state Militia. It protects "A" with "B", not "A" or "B".
See my #180.
You seem to be making a lot of hay for no particular reason. I can’t even tell whether you fear the second amendment will be struck down or if you want it to be struck down. It would be nice if you could articulate your actual position a bit better.
In order to determine the Founder's meaning, I went back to 1792 when we HAD a true, well regulated Militia. The Militia Act of 1792 said that members were adult, white, male citizens. Period. Set that aside for a second.
Now, the second anmendment protected "the people". Not "citizens", not "persons", not "individuals". "The people". In 1792, who were "the people"? They were "full" citizens with the right to vote -- adult, white, male, citizens. Their RKBA was protected by the second amendment.
So, using 1792 to determine the original meaning of the second amendment, it appears as though it was protecting members of a well regulated Militia. Or it's just a coincidence.
(Yes, today, "the people" include non-whites and women. But we don't have a militia we can compare that to.)
Those can be addressed, very reasonably and legally according to well-established law, as "demonstrably and/or adjudicated subject to denial of rights". That they lose certain rights is not taken lightly, and is addressed on a case-by-case basis.
There is a very large gap between "adult white male citizen landowners" and "foreigners, illegals, convicts, felons, and insane" - care to address why those in that gap, such as women, non-whites, and non-landowners, are somehow not part of "the people" enough or otherwise not part of our "national community" to the degree they should not have their RKBA protected? You keep ducking this.
Worded similar to the second amendment, it says the right cannot be abridged.
I guess then, according to you, there is no federal "right" to keep and bear arms.
Very insightful. The militia defined by the Act obligated into service a different (albeit overlapping) subset of the population than those allowed to vote. Strictly speaking from RP's view, a man aged 45 who did not own land was part of the militia but could not vote, but when he turned 46 and bought property he was not part of the militia but could vote ... something is very wrong with your reasoning, RP, when some rights are lost (to wit: unprotected) merely by aging, and others obtained by simple ownership of ground; such is anathema to the notion of "rights".
They were "the people".
The second amendment protects the right of members of a well regulated state Militia to keep and bear arms. They also were "the people".
Rights are not contingent on the government choosing who gets to enjoy them & to what degree, and surely the Founding Fathers (having just fought a war to secure rights for all) did not intend their explicit protections of individual rights to waver at the whim of politicians.
Faced with the desire to protect the RKBA of all, surely Hamilton did not give that up for mere logistical difficulties. He argued for the creation of a “select militia”, a subset of a “militia” which was formed from the “the people”.
If you’re right, Hamilton was a wimp.
Only because the government won't organize it accordingly. The power to do so is granted; that politicians won't exercise governmental powers in no way diminishes the protected rights of the people.
If the second amendment read, "The right of the people to keep and bear arms shall not be infringed", you'd be 100% right.
Alas, it doesn't and you're 100% wrong.
The Second Amendment contains:
1. And unconditional guarantee of the RKBA (second clause)
2. A rationale for why said unconditional guarantee is considered important (first clause).
And what’s important to note and which robertpaulsen ignores is that the non-voting subset were by law required to have their own weapons and to bring them when called if necessary. So that lays to rest the theory that “the people” were property owners only since why only 1 year after the adoption of the 2nd Amendment would they write into law ALL able-bodied white males, property owners or not had to be armed for possible duty? They obviously believed the 2nd and by extension “the people” included more than just property owners.
*** BZZZTTTT *** If that were the case, Article I, Section 2 would simply say "the people" without the definition (voters qualified to elect the most numberous house of the state legislature).
Strike Three; Yer Out!
So you're saying "the people at large" meant everyone, and that Hamilton was suggesting everyone in the United States be assembled once or twice a year to see that they were properly armed and equipped.
Lord help us all.
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