Full Version: The right of the people to keep and bear arms
Breaking news from the DC Circuit Court:
Link
Other Federal circuit courts have recently held the opposite view: that the Second Amendment protects only a collective right, giving the government broader powers to restrict gun ownership.
Does the Second Amendment protect an individual right to keep and bear arms?
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
QUOTE
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
Link
Other Federal circuit courts have recently held the opposite view: that the Second Amendment protects only a collective right, giving the government broader powers to restrict gun ownership.
Does the Second Amendment protect an individual right to keep and bear arms?
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Does the Second Amendment protect an individual right to keep and bear arms?
Yes. And it also (to me) allows/demands a non-Fed application and definition of "Militia". At present US Codes define Organized Militia to be all males between certain ages, then they make it to be essentially the National Guards, and all other to be "Unorganized Militias" which I find offensive terminology and an abuse of the 18-th power of Congress:
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. (US Constitution, Article I., Section 8, Paragraph 18.)
The guard has an impressive battle history, much lauded by their last "big enemy", Germany in WW-II, and an abysmal history of Federal neglect and abuse. (There is an ongoing review of these and other similar Guard issues led by a retired Marine General, and supposedly Fed supported.)
When activated by the Feds, the States quite literally are left with no Militias, and thence unprotected once its Militia is Federalized. Some States pursue something called State Defense Forces (see more in Wikipedia for example) to fill this gap. (About half the states have done so.) Others wing it or do without. I guess my biggest complaint is actually the congressional abuses of its so called 18-th power both here and generally:
"Necessary and proper" to me are the key, and much abused, words here. They mean (to me still) only for the fulfillment of the powers granted that "simultaneously do also demonstrably fulfill the purposes stated in the Preamble to the US Constitution and guaranteeing the civil liberties Amendments", which of course includes the Bill of Rights.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
[/quote]
Not without a case that works its way up through their system to them and is an otherwise a "safe" minimal change of the Constitution, i.e., little or no chance of its happening!
Yes. And it also (to me) allows/demands a non-Fed application and definition of "Militia". At present US Codes define Organized Militia to be all males between certain ages, then they make it to be essentially the National Guards, and all other to be "Unorganized Militias" which I find offensive terminology and an abuse of the 18-th power of Congress:
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. (US Constitution, Article I., Section 8, Paragraph 18.)
The guard has an impressive battle history, much lauded by their last "big enemy", Germany in WW-II, and an abysmal history of Federal neglect and abuse. (There is an ongoing review of these and other similar Guard issues led by a retired Marine General, and supposedly Fed supported.)
When activated by the Feds, the States quite literally are left with no Militias, and thence unprotected once its Militia is Federalized. Some States pursue something called State Defense Forces (see more in Wikipedia for example) to fill this gap. (About half the states have done so.) Others wing it or do without. I guess my biggest complaint is actually the congressional abuses of its so called 18-th power both here and generally:
"Necessary and proper" to me are the key, and much abused, words here. They mean (to me still) only for the fulfillment of the powers granted that "simultaneously do also demonstrably fulfill the purposes stated in the Preamble to the US Constitution and guaranteeing the civil liberties Amendments", which of course includes the Bill of Rights.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
[/quote]
Not without a case that works its way up through their system to them and is an otherwise a "safe" minimal change of the Constitution, i.e., little or no chance of its happening!
Does the Second Amendment protect an individual right to keep and bear arms?
If there is no right to individual gun ownership, then there is no armed citizenry from which to draw a militia. Of course the govt has the right to own weapons and issue them to a militia without the Second Amendment.
There are a number of other arguments and I made them in another thread, but the right to self-defense, in particular, requires indiv gun ownership to be meaningful and it follows logically from the Second Amendment.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
[/quote]
They typically do when an issue is ripe. Perhaps now the issue is ripe.
Does the Second Amendment protect an individual right to keep and bear arms?
I would say so. I would further note that this case, if I read the legal language correctly, does not challenge the right of the District of Columbia to require registration of legally owned firearms. Like all other freedoms, the right to bear arms requires some form of minimal regulation and restriction. (Your right to free speech doesn't prevent laws against libel and slander, for example.) From what I can see, this seems like a solidly argued case.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Only if a case comes up which requires them to do so. I'll wait and see.
I would say so. I would further note that this case, if I read the legal language correctly, does not challenge the right of the District of Columbia to require registration of legally owned firearms. Like all other freedoms, the right to bear arms requires some form of minimal regulation and restriction. (Your right to free speech doesn't prevent laws against libel and slander, for example.) From what I can see, this seems like a solidly argued case.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Only if a case comes up which requires them to do so. I'll wait and see.
Does the Second Amendment protect an individual right to keep and bear arms?
Yes.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Probably, but when?
Yes.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Probably, but when?
Does the Second Amendment protect an individual right to keep and bear arms?
The Majority opinion on this case states in part:
This is not the first ruling of its kind. In 2001, the Fifth Circuit Court of Appeals found in the case of U.S. v. Emerson:
The USSC declined to hear Emerson when it was brought to them so at this point the concept that Second Amendment as an Individual right (subject to reasonable restrictions) stands (though as we all know that can change if the USSC weighs in on the issue via this or another case in the future).
Victoria Silverwolf is correct, this decision does not prevent registration and regulation (nor should they be prevented IMHO).
However, as I understand it the D.C. law in question passed in the late 70s and banned handgun ownership as well as restricted people from keeping legally owned rifles and shotguns assembled in their homes. This laws effectively eliminated personal firearm ownership for self-defense in D.C.
With such severely restrictive gun ownership rules in DC I have to wonder what effect this had on gun crime rates in the last 30 years? According to the Department of Justice, in 1977 the District's homicide rates and the percentage of those homicides where a gun was used were about on par with the rest of the nation (as seen here by selecting all the states, 1977, and weapons used).
However, by 1997 (the last year that seems to include the District in it's statistics), though the homicide rate appears to be in line (more homicides, but you have to take population increases into account) the percentage of homicides where a gun was used in the district had radically increased (as seen here by selecting all the states, 1997, and weapons used) and was the the 2nd highest in the nation (Vermont being the first). This of course begs the question (that could perhaps be added to this debate or created as another debate elsewhere) what do excessively restrictive laws like this accomplish?
The Majority opinion on this case states in part:
QUOTE
Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
This is not the first ruling of its kind. In 2001, the Fifth Circuit Court of Appeals found in the case of U.S. v. Emerson:
QUOTE
We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.
The USSC declined to hear Emerson when it was brought to them so at this point the concept that Second Amendment as an Individual right (subject to reasonable restrictions) stands (though as we all know that can change if the USSC weighs in on the issue via this or another case in the future).
Victoria Silverwolf is correct, this decision does not prevent registration and regulation (nor should they be prevented IMHO).
However, as I understand it the D.C. law in question passed in the late 70s and banned handgun ownership as well as restricted people from keeping legally owned rifles and shotguns assembled in their homes. This laws effectively eliminated personal firearm ownership for self-defense in D.C.
With such severely restrictive gun ownership rules in DC I have to wonder what effect this had on gun crime rates in the last 30 years? According to the Department of Justice, in 1977 the District's homicide rates and the percentage of those homicides where a gun was used were about on par with the rest of the nation (as seen here by selecting all the states, 1977, and weapons used).
However, by 1997 (the last year that seems to include the District in it's statistics), though the homicide rate appears to be in line (more homicides, but you have to take population increases into account) the percentage of homicides where a gun was used in the district had radically increased (as seen here by selecting all the states, 1997, and weapons used) and was the the 2nd highest in the nation (Vermont being the first). This of course begs the question (that could perhaps be added to this debate or created as another debate elsewhere) what do excessively restrictive laws like this accomplish?
I think, if anything- it is a propaganda piece, though to a small degree. I am not aware of ANY law upheld that disallows ownership of guns completely- regulate and license yes, but not ban outright the ownership of guns. From what I have read, no justice has EVER upheld ban on ownership of guns to law-abiding citizens of sound mind, but does allow regulation.
There are a few problems with the majority’s opinion, as I see it. The majority counters the minority by stating D.C. is, for all interpretational intents and purposes, a state. I don’t think this is remotely the case. If it was, Congress would not have authority over the legislative bodies in D.C. If it was, the judiciary would not treat D.C. case law differently.
SCOTUS heard Bolling v. Sharpe (D.C.) the same year it ruled racial segregation unconstitutional on the basis of the Fourteenth Amendment in Brown v. Board of Education (Kansas). There is no federal guarantee to equality in the Bill of Rights and the Fourteenth Amendment indicates its clauses apply only to the states. Could the states be required to treat people equally while the federal government is not? It seemed unreasonable to say the states were required to desegregate but D.C. was not. Chief Justice Warren read the Due Process clause of the Fifth Amendment as encompassing equal protection as well. According to Warren, segregation ran contrary to the liberty protected in the Fifth as a matter of procedural fairness, not as a protection of substantive right.
Secondly, there are dozens of pages of dicta in the majority’s opinion. Dicta is interesting to read but it lacks the force of law. Because SCOTUS has been near mute on Second Amendment guarantees except when the right to bear arms has come in conflict with Congress’ power to regulate interstate commerce the District does extensive analysis of the controversial United States v. Miller (1939) case, a case often cited by both pro- and anti-gun regulation advocates. In doing so the District admits Miller’s “expansive definition of the militia” is “qualitatively different from the District’s concept”. Later the opinion refers to and agrees with the Fifth Circuit’s United States v. Emerson (2001) ruling which interpreted SCOTUS’ Miller as “not lend[ing] support to the collective right model” or the Distrcit’s own “quasi-collective position”. The District admits that while “Miller does not accept the individual right position” the District nevertheless asserts “the decision implicitly assumes that interpretation”. Oddly enough, the majority acknowledges Emerson’s heavy reliance on dictum and then “defends” its own by stating: “...dictum refers to reasoning that does not support the holding of a case. We think all of our reasoning (whether correct or not) directly supports our holding.”
I think it’s necessary and past due for SCOTUS to define what constitutes a militia and whether the right to bear arms is restricted to them. Personally I don’t think, constitutionally speaking, the right to bear arms is an individual right for reasons discussed near the end of the 2nd Amendment; Individual Right? thread. That said, on a plenary level I think it should be ruled as an individual right by SCOTUS, the ambiguous structure of the Second Amendment notwithstanding.
I agree with you but the D.C. regulation in question is impermissibly restrictive. Everyone who can own a gun has the right to move it from one room to another inside their own residence. I wonder if this regulation is another bright anti-terrorist measure from the legislature.
Edited to make a major correction.
SCOTUS heard Bolling v. Sharpe (D.C.) the same year it ruled racial segregation unconstitutional on the basis of the Fourteenth Amendment in Brown v. Board of Education (Kansas). There is no federal guarantee to equality in the Bill of Rights and the Fourteenth Amendment indicates its clauses apply only to the states. Could the states be required to treat people equally while the federal government is not? It seemed unreasonable to say the states were required to desegregate but D.C. was not. Chief Justice Warren read the Due Process clause of the Fifth Amendment as encompassing equal protection as well. According to Warren, segregation ran contrary to the liberty protected in the Fifth as a matter of procedural fairness, not as a protection of substantive right.
Secondly, there are dozens of pages of dicta in the majority’s opinion. Dicta is interesting to read but it lacks the force of law. Because SCOTUS has been near mute on Second Amendment guarantees except when the right to bear arms has come in conflict with Congress’ power to regulate interstate commerce the District does extensive analysis of the controversial United States v. Miller (1939) case, a case often cited by both pro- and anti-gun regulation advocates. In doing so the District admits Miller’s “expansive definition of the militia” is “qualitatively different from the District’s concept”. Later the opinion refers to and agrees with the Fifth Circuit’s United States v. Emerson (2001) ruling which interpreted SCOTUS’ Miller as “not lend[ing] support to the collective right model” or the Distrcit’s own “quasi-collective position”. The District admits that while “Miller does not accept the individual right position” the District nevertheless asserts “the decision implicitly assumes that interpretation”. Oddly enough, the majority acknowledges Emerson’s heavy reliance on dictum and then “defends” its own by stating: “...dictum refers to reasoning that does not support the holding of a case. We think all of our reasoning (whether correct or not) directly supports our holding.”
I think it’s necessary and past due for SCOTUS to define what constitutes a militia and whether the right to bear arms is restricted to them. Personally I don’t think, constitutionally speaking, the right to bear arms is an individual right for reasons discussed near the end of the 2nd Amendment; Individual Right? thread. That said, on a plenary level I think it should be ruled as an individual right by SCOTUS, the ambiguous structure of the Second Amendment notwithstanding.
QUOTE(CruisingRam @ Mar 10 2007, 01:02 PM) 
I think, if anything—it is a propaganda piece, though to a small degree. I am not aware of ANY law upheld that disallows ownership of guns completely—regulate and license yes, but not ban outright the ownership of guns. From what I have read, no justice has EVER upheld ban on ownership of guns to law-abiding citizens of sound mind, but does allow regulation.
I agree with you but the D.C. regulation in question is impermissibly restrictive. Everyone who can own a gun has the right to move it from one room to another inside their own residence. I wonder if this regulation is another bright anti-terrorist measure from the legislature.
Edited to make a major correction.
Does the Second Amendment protect an individual right to keep and bear arms?
No. Not at all.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
It will have to and it will be a good thing. The current Supreme Court punted the Emerson decision that has never been used as a precedent. However, not so with this case. This one will go to the Supreme Court and unless they chicken out again, this matter will be settled once again for the umpteenth time.
I can't imagine this sticking and having to reverse all the decisions that were challenged based on the second. Since this "individual right" is based on some "unorganized militia" premise, I could be my own militia and in exercising my 2nd amendment right, attack any government institution I deemed strategically important. Timothy McVeigh would have been exercising his constitutional right in attacking a federal institution. The innocents he slaughtered would be considered collateral damage as the US does everyday in the places we have a military presence. If I act as my own militia, it is not clear what is a criminal act and what is an act of war.
No. Not at all.
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
It will have to and it will be a good thing. The current Supreme Court punted the Emerson decision that has never been used as a precedent. However, not so with this case. This one will go to the Supreme Court and unless they chicken out again, this matter will be settled once again for the umpteenth time.
I can't imagine this sticking and having to reverse all the decisions that were challenged based on the second. Since this "individual right" is based on some "unorganized militia" premise, I could be my own militia and in exercising my 2nd amendment right, attack any government institution I deemed strategically important. Timothy McVeigh would have been exercising his constitutional right in attacking a federal institution. The innocents he slaughtered would be considered collateral damage as the US does everyday in the places we have a military presence. If I act as my own militia, it is not clear what is a criminal act and what is an act of war.
Does the Second Amendment protect an individual right to keep and bear arms?
It does so within the context of a militia (at least that's how I read it).
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Hopefully, SCOTUS will resolve it but they may make another narrow ruling.
What I don't understand is why more folks aren't crying "activist judges" in this case? The ruling has clearly overturned the will of the people in DC. Do those who cry "activist judge" only do so when they disagree with a ruling or do they really have a philosophical issue? I'm thinking the former.
It does so within the context of a militia (at least that's how I read it).
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Hopefully, SCOTUS will resolve it but they may make another narrow ruling.
What I don't understand is why more folks aren't crying "activist judges" in this case? The ruling has clearly overturned the will of the people in DC. Do those who cry "activist judge" only do so when they disagree with a ruling or do they really have a philosophical issue? I'm thinking the former.
QUOTE(CruisingRam @ Mar 10 2007, 12:02 PM)
I think, if anything- it is a propaganda piece, though to a small degree. I am not aware of ANY law upheld that disallows ownership of guns completely- regulate and license yes, but not ban outright the ownership of guns. From what I have read, no justice has EVER upheld ban on ownership of guns to law-abiding citizens of sound mind, but does allow regulation.
I found a bit more on the D.C. Restrictions. This article does not mention the restriction from having "assembled" rifles and shotguns in the home but it does reference the handgun ban:
QUOTE
Current law does, however, ban handguns for the public, save for owners of security companies and law enforcement officers, and most types of semiautomatic weapons.
(source article)This Washington Post article was written in September, 2004 by Anthony A. Williams, the Mayor of the District of Columbia at the time.
Edited to add:
I've had a heck of a time trying to find specifics on the District of Columbia's "Firearms Control Regulations Act of 1975. Bits and pieces are all I have found so far. However, I did just find a reference to the "assembled" firearms restrictions:
QUOTE
Firearms kept at a business may be kept operable, but firearms kept at home must be disassembled and thus are unusable for self protection.
This paper seems to be an analysis of the D.C. law, 1987's Sandidge v. United States (where "The court held that "the Second Amendment guarantees a collective rather than an individual right" comes from), and is likely an argument as to why Stephen P. Halbrook feels the D.C. gun restrictions are unconstitutional. I've not taken the time to read it in its entirety yet, and only reference it because it mentions the restriction from having "assembled" firearms in the home in D.C.
Edited to add (again):
A bit more reading on this piece suggested that the restriction from having "assembled" firearms in the home is not quite so clear. It seems a trigger lock or similar device is an acceptable alternative:
QUOTE
D.C. Code §2372 provides:
Each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.
Each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.
QUOTE(Jobius @ Mar 9 2007, 02:49 PM)
Breaking news from the DC Circuit Court:
QUOTE
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
Link
Other Federal circuit courts have recently held the opposite view: that the Second Amendment protects only a collective right, giving the government broader powers to restrict gun ownership.
Does the Second Amendment protect an individual right to keep and bear arms?
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
! Other Federal circuit courts have recently held the opposite view: that the Second Amendment protects only a collective right, giving the government broader powers to restrict gun ownership.
Does the Second Amendment protect an individual right to keep and bear arms?You bet and always has
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
Eventually. And they will uphold it as an individual right.
What was ludicrous about DC was that the law abiding citizen was kept from protecting himself while the criminals had plenty of guns – and used them. Fortunately the Court put an end to this stupidity.
QUOTE(Jobius @ Mar 9 2007, 06:49 PM)
Does the Second Amendment protect an individual right to keep and bear arms?
The only way this result can be reached is if the court pretends the term "well regulated militia" simply isn't there or that it means everybody (except slaves of course whom George Mason did not want to arm)
QUOTE
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
The DC case will be struck down. Once the SC is forced to review the history of the 2nd Amendment, its sordid origins will be made clear. Specifically, it was calculated as a means to suppress slave revolts and other "uprisings" from landless people, by arming bodies of men to do the bidding of the government. That's why the first use of militias was in disarming the Whiskey Rebellion. Even the conservative members of the SC will likely be embarrassed by the genesis of this amendment and be chagrined by the bizarre fictive histories the NRA has built around it.
By the way, notice that the 2nd Amendment says nothing about owning a gun; only keeping and bearing one. This suggests the real purpose -- to have a gun for the purpose of arming a militia.
QUOTE
The DC case will be struck down. Once the SC is forced to review the history of the 2nd Amendment, its sordid origins will be made clear. Specifically, it was calculated as a means to suppress slave revolts and other "uprisings" from landless people, by arming bodies of men to do the bidding of the government. That's why the first use of militias was in disarming the Whiskey Rebellion. Even the conservative members of the SC will likely be embarrassed by the genesis of this amendment and be chagrined by the bizarre fictive histories the NRA has built around it.
This is a 2nd amendment rant I have not heard- and I thought I had heard them all. I am curious as to you sources for theis argument – can you post them please.
Thanks
PS I can’t wait until the SC gets the case and puts an end to gun grabbers everywhere in this country.
Please note a number of personal attacks and subsequent responses have been removed from this topic. If you can't debate in a civil fashion please find a place that will allow flame wars. They will not be tolerated here.
TOPICS:
Does the Second Amendment protect an individual right to keep and bear arms?
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
TOPICS:
Does the Second Amendment protect an individual right to keep and bear arms?
Will the Supreme Court step in to resolve the conflict between the Federal circuits?
QUOTE
The DC case will be struck down. Once the SC is forced to review the history of the 2nd Amendment, its sordid origins will be made clear. Specifically, it was calculated as a means to suppress slave revolts and other "uprisings" from landless people, by arming bodies of men to do the bidding of the government. That's why the first use of militias was in disarming the Whiskey Rebellion. Even the conservative members of the SC will likely be embarrassed by the genesis of this amendment and be chagrined by the bizarre fictive histories the NRA has built around it.
Yeah, I've never heard that, but its interesting.
Which brings up my point:
Messing with framework fo the constitution is deadly, deadly dangerous. Its one thing to propse an amendment advancing a particular freedom for one group -- women's suffrage, the 13th amendment, etc.
But its another to say, repeal the 2nd amendment. As a strong advocate for extreme gun control measures (why not hunt with bow and arrow it looks more fun (half-joking)) I nevertheless would hate to see any clause from the bill of rights repealled. Because I know that would set a precedent for the ensuing conservative backlash, and nobody would be happy.
However whats going on here is a debate over the intended meaning of the clause; which I don't think is so dangerous, if kept within bounds. So I can't say whether the amendment applies to individuals or not, but I can certainly see how the debate could lead to that conclusion, or the opposite. So I think this is a fine way for a local district to challenge constitutional law.
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