In September 1994, President Bill Clinton signed the Federal Assault Weapons Ban. Later, he would suggest that this cost the Democrats their majority in Congress:


That's the last time I remember gun control being such a decisive issue in a national election. In 2000, presidential candidate George W. Bush said that he would sign an extension of the assault weapons ban, but when the time came in 2004, a Republican-led Congress allowed it to expire. Polls at the time indicated that two-thirds of Americans supported extending the ban, but they apparently were'nt motivated to punish Republicans at the ballot box that year.

The Democratic party was no longer so keen on pushing gun control, either:



So why would anyone expect gun control to be a major issue in this year's presidential campaign? Well, on March 18, 2008, for the first time in decades, the Supreme Court will be hearing a case that challenges a gun control law on Second Amendment grounds: D.C. v. Heller. Heller is one of six plaintiffs who originally challenged Washington D.C.'s gun control laws, which ban the possession of handguns, and allow rifles and shotguns only if they are stored unloaded, disassembled, melted down, and buried in a concrete vault in the backyard. (I may have the details on that slightly wrong; I'm not a lawyer.)

The D.C. District Court ruled last year that the Second Amendment protects an individual right to keep and bear arms, and that the D.C. ban unconstitutionally infringed that right. The Supreme Court has agreed to hear the case to decide the following question:


A decision is expected by June.

Questions for debate:

Does the Second Amendment protect an individual right to keep and bear arms? (Your opinion.)

Will the Supreme Court agree?

Will gun rights and gun regulation be an issue in the 2008 presidential campaign?

I think the right extends to individuals, but it is subject to reasonable restrictions.


I think on this case, they might, because it's a weird issue. If I understand this correctly, DC used the militia angle because it suited them at the time. They are not a state, so they don't get a militia - that allowed them to impose a very broad ban on guns, in theory. But it doesn't work so well for the rest of the country.

It's all up to Kennedy, and I don't know where he stands on gun control. This court is so divided that most decisions are breaking 5-4, with Roberts, Alito, Thomas, and Scalia on the right and Ginsburg, Breyer, Souter and Stevens on the left, and Kennedy holding the swing vote almost every time. If a decision is not 5-4 with this court, consider it a landslide.


I don't think so. Bush has left us with too many other problems to address.

Thanks for not letting this topic die without a single response, JohnfrmCleveland.

Does the Second Amendment protect an individual right to keep and bear arms? (Your opinion.)

Yes. The phrasing is weird, and it's got too many commas, but I think it's clear that "the people" in the Second Amendment are the same people referred to in the rest of the Bill of Rights. That circle has expanded since then: women and non-landowners are now included, and slavery has been abolished.

I do think that the government can apply reasonable restrictions. Felons and mentally ill people who pose a threat to themselves or others should not be allowed to own guns (assming they've been judged so under due process of law). Weapons of mass destruction should also be restricted. I'm not sure a machine gun falls into that category, but I'm not looking for a court ruling to say everybody's allowed to have one.

The D.C. gun ban definitely goes too far, and violates the Second Amendment. If people think the Second Amendment is obsolete, they should try to repeal it, not pretend it doesn't mean what it says.

Will the Supreme Court agree?


Yeah, that's pretty much exactly my thoughts.

Will gun rights and gun regulation be an issue in the 2008 presidential campaign?

Maybe. If Kennedy agrees with me, and upholds the decision striking down D.C.'s gun ban, things could get interesting. There are a number of big cities where it's almost as hard to get a gun permit. Those laws would immediately be challenged if D.C.'s is struck down.

I'm not sure how that plays out, though. Gun control advocates don't necessarily vote on that issue. Gun rights advocates are much more likely to. Could the NRA mobilize its members in the wake of a decision here? I guess it depends on how the Democratic candidate reacts to it...

1.) Well, since the Constitution is a "living document" we have to set aside the historical context with which the amendment was written: Where the Founding Fathers would've liked people to keep arms in order to protect against foreign invasion. We're a bit more secure than we were in the eighteenth century. However, since it is a "living document" it is viable to say that amendment still supports private ownership.

2.) Yes.

3.) No. I can't help but think it will be shied away from since a lot of people are divided on this issue.

Questions for debate:

Does the Second Amendment protect an individual right to keep and bear arms?

I don’t think there is any doubt that the 2nd Amendment is in line with the rest of the Bill of Rights, in that it grants rights individual citizens. The Amendment did not grant the right to keep and bear arms to militias as an entity; it granted the right to the able bodied men who comprised the militias.
I believe that the Founding Father’s intended to ensure that citizens had the right to self defense, hunting and the defense of their community; and as an insurance that a tyranny would not be able to establish it self in the nation, by virtue that an armed populace will not acquiesce such a move.
To argue against this as an individual right is to argue that citizens do not have the right to defend their homes and families in a manner commensurate with those that wish them harm. To argue against this as an individual right is to argue that by a biological or moral inferiority of the citizenry, only the state can arm itself for defense. If the state fears its citizens, it will attempt to remove all means for the citizens to defend themselves.

Will the Supreme Court agree?

Hard to say, I believe they will agree with the original premise of the 2nd Amendment, but that is purely based on a gut feeling……..or fervent hope.

Will gun rights and gun regulation be an issue in the 2008 presidential campaign?

Doubtful. As has been mentioned previously, the current administration has left enough on the plate for both final contestants to grapple with. And as this issue deals directly with the liberty of the population, unless there is a political upside for them, the contestants will not have the courage to tackle it.

Well that unto itself seems very interesting. Is it possible that candidates like Huckabee and Romney may eventually latch onto the issue with nothing else to firmly grasp? We've already seen one non-issue [i.e., the Confederate flag] raise a little flack in this election season, so is it wholly wild to say that it may become a last-ditch issue with which to score a media blurb?

So, not so much politically-oriented, but media exposure is shifting more and more in favor of Obama/Clinton v. McCain. Just maybe we'll see this issue get a temporary pass to "front and center" so the mainstream candidates can outline their views on the matter.

Yes, that's a complete retraction from my original position, but there you have it.

Does the Second Amendment protect an individual right to keep and bear arms? (Your opinion.)

It protects an individual's right to keep and bear arms for a militia. It does not protect for any other uses, such as hunting. In other words, if a law were passed proscribing firearms for hunting, then the 2nd Amendment has nothing to say about it.

Will the Supreme Court agree?

SCOTUS will likely agree with the DC District Court: and I would support this decision. Carefully consider that those who like to cry judicial activism when the court overturns a law are being strangely silent when the judicial activism happens to have more "conservative" implications. Which is it "conservatives": will of the people or judicial activism? Pick one.

Will gun rights and gun regulation be an issue in the 2008 presidential campaign?

In short, no. Gun control/rights is one of those wedge issues. So far I don't see any wedge issues making headlines in this campaign.

Does the Second Amendment protect an individual right to keep and bear arms? (Your opinion.)

Certainly. Any argument that the 2nd Amendment conditions or qualifies the right with its wording, i.e., "well regulated," or "militia" or "free state" ignores the plain fact, endorsed by the Supreme Court, that the right to arms is not granted, given, created, conferred or established by the 2nd Amendment.

SCOTUS has said the right to arms is not dependent in any way upon the Constitution for its existence. If the right exists without reference to the 2nd Amendment, how can the Amendment be referred to and be interpreted to create conditions on the scope or exercise of the right?

All the 2nd Amendment does is redundantly forbid the federal government from exercising powers that it does not posses.

Will the Supreme Court agree?

Oh without a doubt. By a 9 - 0 vote. It has no leeway to make any other decision; the "collective right" model is nothing but smoke and mirrors.

Will gun rights and gun regulation be an issue in the 2008 presidential campaign?

Doubt it. No democrat will bring it up except to make a shallow, pandering claim to be a lifelong gun enthusiast.



I think you are going to be quite surprised by the Heller ruling. It will deal with nothing but the framers intent and the foundational principles. The "living constitution" might be a compelling discussion in some classroom somewhere but it is not any part of the Supreme Court's reasoning.

Well I have to agree, but I do believe there are cases wherein the famous Right Wing theory of "legislating from the bench" occurs even in our nations highest court.

But if you look at the letter of the Constitution, it is possible to apply the word "people" to militia, wherein the Second Amendment applies only to the State National Guard Units:



So it's fair for anti-gun proponents to argue that historically, the Founders never intended private citizens to own firearms. This, however, is offset by the writings of Jefferson and Madison. But when choosing a side in this debate, one has to make the conscious choice to choose the interpretation of men who have been dead for two hundred or so years, or make a ruling based strictly on the letter of the Constitution, which could go either way on the issue. I call that a fairly living debate.

See Madison's statement from Federalist Paper 46 :



Seemingly he is in favor of the well-regulated militia but is mum on the private ownership. But he leaves that one to Thomas Jefferson:



Jefferson wrote this in 1785 to his friend Peter Carr. And like any politician, what he wrote must be taken with a grain of salt considering we have no idea what Carr wanted to hear on the matter. There are other quotes, however, that seem to suggest Jefferson firmly believed in private ownership. This is important since the opinion existing separate from the Constitution may influence the decision that is supposed to based exclusively on the words found in it, not about it.

Way back when, guns were pretty necessary for anyone living outside of the city. I don't think anyone could seriously argue that the Founders never intended for private citizens to own firearms. The "militia only" argument is clearly a gimmick to get DC where it wanted to go - as complete a ban on guns as they could conceiveably conjure up. Normal firearm regulations had never attempted to reach that far, so I suppose they thought they had a better chance of their law passing Constitutional muster with the militia argument - a new angle, but one that you could make a decent argument for, since DC is treated differently than a state.

And it sometimes works. Call it judicial activism or call it pragmatism, but it wouldn't be the first time that the Supremes have used an expansive interpretation or an otherwise strange argument to get where they want to be. Somewhere in that opinion (including the dissent), I'll bet that there is a mention of the special circumstance of DC not being a state, and the general feeling that DC is one place where you want some strict gun control, whether because it's the seat of government or because of all the crime. None of that is really relevant to the 2nd Amendment, but I'll bet it comes up.

Well of course guns may've once been necessary. But as stated, we're a much safer nation now by and large.

I'm not entirely sure if that is D.C.'s argument, but it is perfectly valid since the Constitution may or may not be implying that only the National Guard may posses guns.

And I would bet you're right. Since it's a district and not a state, is it even subject to the Constitution? Of course the answer is yes, but a cunning argument would be to claim not and circumvent the entire issue. The fact that gun control is even on the Court's agenda is fascinating unto itself, I'm anxious to see whether or not they side with the interpretation of the law or the law itself.

There can be activist decisions / opinions without being 'living constitution" based. I expect the decision in Heller will be 9 - 0 to uphold the lower court's decision but I also expect Breyer, Stevens and Souter to only concur in part and write a separate opinion explaining their differences based on political and sociological positions. There is going to be a general agreement on the fundamental constitutional principle on the RKBA but their argument will be "times have changed' so we must apply an "evolved" basis of scrutiny to a contested law.

I don't think they will argue an evolving "living" Constitution, that the "meaning" of the Constitution has changed due to circumstances, just that our legal, enforceable adherence to those fundamental principles must yield to modern pressures.

But do such distinctions matter? Since both arrive at the same end using different paths what the heck is the difference???



Given that in the founder's time every man capable of bearing arms and acting in concert was considered "militia" it is not difficult to consider the two words are synonyms in the context of the 2nd Amendment.

Madison considered militia to be the mass of armed citizens amounting to 20 - 25% of the whole population. The present number of armed citizens (65,000,000+) aligns perfectly with today's total population (300,000,000) and standing army (2,900,000) using the ratios Madison described in 1788. Madison intended that the standing army would always be outnumbered, ("opposed" was the word he used), by armed citizens by a factor of 17 to 1; I find it amazing we, in modern times have maintained Madison's ideal so precisely!

How does the 2nd only apply to the NG? Isn't the 2nd an indictment of select, standing armies?


Well, it's certainly NOT fair to deduce such a conclusion from the 2nd Amendment. As I said above:

Any argument that the 2nd Amendment conditions or qualifies the right with its wording, i.e., "well regulated," or "militia" or "free state" ignores the plain fact, endorsed by the Supreme Court, that the right to arms is not granted, given, created, conferred or established by the 2nd Amendment.

SCOTUS has said the right to arms is not dependent in any way upon the Constitution for its existence. If the right exists without reference to the 2nd Amendment, how can the Amendment be referred to and be interpreted to create conditions on the scope or exercise of the right?

All the 2nd Amendment does is redundantly forbid the federal government from exercising powers that it does not posses.

And that last sentence is the real binding principle . . . The founders found the people buying, keeping and using their private arms freely for a myriad of lawful purposes without permission or regulation of law before the Constitution was drafted. Since no power was ever granted to government to impact those private arms of the citizen or the many lawful uses of firearms, NONE EXISTS!

Do you think the founders were so pretentious as to believe they could change the status of the right that individuals freely exercised without regard to militia activity into a requirement of militia activity in order to exercise? Do you think the founders, all well educated men well versed in Latin and linguistics would hinge this entire master plan of conditioning the citizen's right to arms on an simple, non-binding absolute clause?

That would have been quite a good linguistic joke not to mention outright philosophical deception foisted on the citizens, amazingly, the secrecy of it has survived to the present. I can only imagine the public outcry had it been leaked in 1791, that such a constraint, condition and qualification was to be created by the Bill of Rights!!!

Did Madison conspire with Tench Coxe to write and publish propaganda about the Bill of Rights? . . . Coxe's exposition on the proposed bill of rights was reprinted in nearly every major newspaper and his statement on the 4th proposed article of amendment (the 2nd upon later ratification) said:

"As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."

I find it difficult to believe he was being misleading.



There is no mystery about what the 2nd Amendment is or what it protects. The only thing making the debate lively is the fertile imaginations of those who have no understanding of the fundamental principles of the Constitution.



Madison is not breaking any new ground here. The founding fathers were learned men, well educated and had at that time a great many philosophies to choose from when hammering out our Republic. The rationale of the Declaration of Independence, the COTUS and the Bill of Rights, rests on the writings of Aristotle, Cicero, Locke, Sidney, Harrington, Machiavelli, Cato's Letters, the English Whigs, Rousseau, Burgh, Montesquieu, Beccaria and many others. The differences Madison is speaking of here between an armed citizenry in America and the disarmed populations of Europe and the dilemma faced by those leaders being "afraid to trust the people with arms" has been debated for thousands of years.

Plato and Aristotle had the debate in their opposing political theories . . . Plato recognized that if a war with outside forces arises, the leaders are faced with that age old dilemma:

"Either they must call out the common people or not. If they do, they will have more to fear from the armed multitude than from the enemy; and if they do not, in the day of battle these oligarchs will find themselves only too literally a government of the few."

Madison is only lecturing on the basic political principles to be enshrined in the Constitution if it is ratified. The classical principles of the Greeks and Romans were well known back then and the "new" philosophers the founders were reading, Locke and Sidney primarily were discussing individual, inherent and inalienable rights; in direct opposition to the divine right of the king to rule however he sees fit . . . which the founders kinda had a problem with. The founders immersed themselves in those ideals.

So, the thought that the founders desired to establish an unequal set of arms rights by ratifying the Bill of Rights so that only a select, government approved class were to enjoy the protections of said right is preposterous and too absurd to even be contemplated.



SCOTUS does not interpret the Constitution in a vacuum. There is a wealth of commentary from centuries old constitutional scholars like Blackstone, Tucker, Story and Cooley and many other sources explaining the fundamental constitutional principles. They don't just take the Constitution and the 2008 edition of Webster's to "interpret" the constitution because the principles behind the constitution are more important than the words. And I hate to tell you this but those principles are unchangeable.

Mike_Raffone



That's the thing, I don't want it to be a living document. I'm saying some people believe it is such. I like strict interpretation. And as such, I would like to see the Justices interpret it as a case wherein the Constitution grants gun ownership rights to the militia and not to the general public.




Yes, but that is not the case today. Words change meaning overtime. Remember that yesteryear's conservative was this era's Democrat. The fact of the matter is that not everyone today needs a firearm to protect their property, so in a minor case of hypocrisy, I recognize that the words no longer apply to the masses.

Because the army is not allowed to be deployed in the United States' domestic holding, and the NG are.

In any event, during the Revolution, one third of the population were Tory. One third were apathetic. And one third were "fighting" for independence. During Benedict Arnold's incursion into Quebec in 1,776, he took 700 men most of whom did not have guns. The army grew slightly, but it never fully reached the full one third who supported independence. So your ratio is skewed depending on which data you look at. Roughly 2/3's of the people at the time were anti-American or just didn't care one way or the other. So firearms weren't even viewed as necessary back then except to fight a war. Now what are they good for?




See now that's the thing. We're weighing the intention of the Founders with the actual letter of law drafted by the Founders. The law, depending on how you view the Constitution, can be interpreted any which way as to deny or advance the right to own a firearm. Personally, as a Libertarian, I'm down with the whole private ownership. I've simply been saying, hope you can agree, that it can at least be interpreted in such a way that Washington, D.C. has a case wherein the Supreme Court may surprise everyone by advancing the gun ban.



Why? They did it with voting rights, property rights, and the general disqualification of Native/African Americans from the process. It's not so absurd that the Founders would have their say in gun control.




Like I said, I like the unchangeable. But I acknowledge the fact that the document has to be elastic in order to survive. Every other government on earth has failed, it's not so absurd to say one day America will fall. As such, the Supreme Court is our bastion in order to stave that day off in order to interpret the law as it is relevant to the modern era. It's not a crime for them to come out in support of the gun control law.

At the time, it was a huge no-no to support Loving v. Virginia wherein blacks and whites were granted legal benefits of marriage. Today, it would be just as shocking, but that shocking decision became law and the world did not stop turning. People tried pushing legislation to ban mixing of the races. People are trying to push legislation to ban guns, and historically, truthfully, will probably fail and you are indeed correct. The fact of the matter is that the Constitution does have some give and the interpretation changes with each heir to the Spirit of '76.

So you and I have been sparring about the way in which the Constitution can be interpreted moreso than the case at hand.

I'm curious Vdem, are you stating the above due to a larger semantical argument with the Constitution, or because you believe that only the state should be armed?

Perhaps a little of both. I would very much like the issue cleared up [hence the Supreme Court case ]. I would have the world interpret the Constitution as nothing more than a set of binding principles that can be adapted from situation to situation, but sometimes a blanket assumption ensues that requires a heavier hand on the part of the courts. But I also believe that states should ideally be the bastions of order in times of peace when a national army need not benefit from taxes and arms. It's in the Constitution.

I'm curious about something, also, V - you are the third or fourth student I've come across on AD who claims to be a strict constructionist. Where did this come from? Did you get this viewpoint from some class? From the Ron Paul website? Your own research? I ask because strict constructionism is viewed as kind of an unworkable academic exercise in law school. It gets mention because it is good textbook material, but it's not very useful in practice.

It comes because I recognize the abuses of power that come with discretion of the law. My AP Government class was remedial at best and my teacher was a liberal in favor of judges "legislating from the bench," as it were. I dislike Ron Paul more than Mike Huckabee. So, naturally, my own ideals account for my conviction that government ought to interpret its laws with a scalpel rather than a broad sword.

Despite its practical placement as a Federal issue since it is outlined in the Bill of Rights, I believe the Federal government should cede the power to decide gun control to the states, for they regulate individual National Guard Units and Police Departments so effectively already. The Feds have bigger things to worry about, I would just like to see the issue get decided swiftly up or down.

Can you give an example of a judge "legislating from the bench"? Certainly, in this case DC v. Heller, we have judges overturning a law passed by an overwhelming supermajority of voters in DC. Would this constitute legislating from the bench? Perhaps, you can give us a specific example.

Just an example would be gay marriage in Iowa. Iowa Code 595.2 Gender--age states:


Then, Iowa court rules same-sex couples can marry.

This was a ruling from a district court, not the Iowa Supreme Court.

I am not advocating a position on this particular issue as this is not the forum for such a discussion. However, the judge in this case over-ruled the Iowa Code. It is not his position to make law, but to interpret the law. If the law needs to be changed, it must be done through the legislature, not the courts.

I'm referring more to the theory of it rather than the actual practice.

But in response to your question: Yes, I would call that legislating from the bench.

So, then, you must believe that the judges overturning the law passed in DC is also "legislating from the bench". These judges interpreted the 2nd Amendment in such a way to overturn it.

Well, this is exactly how the law works. Congress passes the laws. The courts rule on those laws. If the courts rule that the law is unconstitutioinal, it can be appealed in a higher court, all the way up to the Supreme Court. If the law is still found to be unconstitutional, congress is free to go back and try to amend the law to make it constitutional. And if it's that important to pass the law as is, you can change the Constitution by making it an Amendment, ratify it, etc. That judge did exactly what he was supposed to do.

In theory, the Bill of Rights needs no interpretation. I mentioned earlier in this thread how "militia" and "people" may be in reference to one another instead of granting the right to firearm ownership to every citizen. So it all depends on whether or not you think the Supreme Court should have a say in the interpretation of our supposed "God-given rights."

Then what, exactly, is the Supreme Court's purpose, if not to interpret the Constitution?

No, I was simply providing an example of legislating from the bench. I did not take a position on anything, just supplying you with an example that you requested.

To determine how laws written by Congress or proposed by the Executive Branch fit into the Constitution in such a manner as to not conflict with those rights presented by the Constitution.

Right, however in this example, a district court judge "also struck down a state law declaring valid marriages are only between a man and woman" which is not the purpose of a district court judge. That is the purpose of the Supreme Court Justices, not district court judges.

As a supplement, one of the same sex couples did get married based on this particular judges decision. This was done while the law still stood as "Only a marriage between a male and a female is valid." It isn't in this judges place to make such a determination. If the Iowa Supreme Court made this determination, the law would go back to the legislature, where the law would be either amended or removed.

Given your example, do you thnk that DC v. Heller is another example of judges "legislating from the bench"?

Short answer: yes. But, with that, overturning bench legislation from the bench is one of those issues that makes me dizzy. The Firearms Control Regulations Act of 1975 was written by the Washington D.C. city council. Not exactly legislating from the bench, but is a city council the proper authority to out law the Bill of Rights? I think both the ruling and the ordinance are the product of what some term 'activists judges' except the correct term would also be 'activist council members'. Both are wrong. But, like others here, I am not a lawyer or a judge, this is just my take on the issue.

The issue as I understand it is that the people of DC overwhelming passed a very restrictive gun control law. This law was overturned by the court on the grounds it violated the 2nd Amendment. This is similar to laws being overturned by the court for violating the 14th Amendment. With the former, the court overturned a gun control law; with the latter, the court overturned an anti-gay marriage law. Either way, the court overturned laws that were considered in conflict with the US Constitution (and sometimes a State's Constitution).

This is "activist" as I understand the term "activist". If the conservative principle is to restrict the power of these "activist judges", then why no hew and cry over DC v Heller? I'll tell you why -- a little secret -- a conservative "principle" only exists when it's politically convenient.

Except both are considered wrong. I have not seen any more uproar over the DC v Heller case than there was with the case I cited. Both got limited coverage. I am not seeing the issue, and I don't understand why it is a conservative versus liberal issue suddenly.

And you can do this without interpreting the Constitution? Why do they need 9 judges, if it's so clear-cut?

Here is the problem with strict constructionism - it ignores the details that make up the realities of a legal system. There are nuances to everything, including the 2nd Amendment. Does "militia" include "individuals"? Does "the people" include individuals? What about DC, since it's not a state? Define "arms." What constitutes "infringement"? There are libraries full of constitutional law books that dissect that little document. 10 strict constructionists can read the words of the 2nd amendment, and it you will still get a few different interpretations.

Both are considered wrong? You mean wrong legislation or a wrong court decision? If the former, then I agree: it was bad legislation. If the latter, then I don't agree: the court correctly overturned those laws based on constitutional precedence.

I could do it from a basement with a case of toothpicks and the wafting breeze of pipe smoke. Alas, that's neither here nor there.

The Supreme Court exists to interpret new laws and their place with existing laws. When something like D.C. v. Heller comes up, it is important for the Court to evaluate whether or not it violates existing law or practice. Perhaps I was not clear on that point.

A few is better than the thousands you could get from someone who views the Constitution as "living."

I don't think there's any merit in saying the "militia" in the Second Amendment is the same as the National Guard. The original meaning of the militia was much broader, but if you're afraid you'll get Scalia cooties by looking at "original meaning," you can consult the current statutory definition of the militia:



I think most people, conservative or liberal, agree that the courts should strike down laws that are contrary to the Constitution. The problem is how creative the judges get in interpreting those rights. In the Griswold/Roe line of cases, the Court started divining penumbras and emanations of various amendments, and ended up discovering a fundamental Constitutional right to abortion that the authors and ratifiers of the Constitution could never have imagined was in there.

Contra logophage, I don't object to this because it suits my prejudices. On abortion, I'm pro-choice -- at least before viability, which is when the vast majority of abortions take place. Rather, I object because the reasoning is unreasonable: if there's a right to an abortion in the Constitution, there's probably a right to do anything else. Same-sex marriage? Sure, why not? And once again, I'd have no objection to the policy of same-sex marriage, but the precedent worries me. Why not polygamous marriage?

Another example of legislating from the bench: a couple of years back, a judge here in California ruled that schools couldn't require students to pass a test before receiving a diploma. Obviously, there's no explicit right to a diploma in the U.S. or California constitutions, but this judge reasoned that "access to a public education is a fundamental personal interest" protected by the California constitution, and further that "a diploma can fairly be characterized as an 'educational opportunity,' the denial of which is subject to strict scrutiny." Voila, a Constitutional right to a diploma, even if you can't pass the exam.


That's quite a narrow view of the right to keep and bear arms. I suspect you're a bit more expansive in reading the rest of the Bill of Rights. For example, "Congress shall make no law respecting establishment of religion." Does that mean the government can't pay churches to run homeless shelters? And if providing any support whatsoever to a church constitutes unlawful "establishment," and if you agree with the unwritten (yet penumbrally emanating) Constitutional right to privacy, and all that follows from that... why so stingy on the Second Amendment?

It's not like a broader view of Second Amendment rights is limited to right-wing crackpots. I find myself agreeing with Laurence Tribe on this:

I'm not sure where you're going with this. I think you're trying to say either there are bad judges OR you disagree with the decisions of otherwise good judges. If the former, then there's always impeachment. If the latter, then there's the appeals process. Barring that, there's the amendment process.

The courts for the longest time implicitly supported segregation. It was only through the lens of the Constitution that the courts overturned these laws.


Ahh... the dreaded "slippery slope" argument or maybe a "gateway predecent" . Why stop at polygamous marriage? Miscegenated marriage leads to same-sex marriage leads to polygamous marriage leads to human-animal marriage leads to ...


I can't say I understand enough of the California Constitution to debate this point. Fortunately, there's such thing as an appeals process.


I don't think you understood my argument. I'm saying that if there is no Constitutional conflict with a law being passed, then it shouldn't be overturned on the basis on the Constitution. In other words, if a law were passed proscribing firearms for hunting, then it would not violate the 2nd Amendment. On the other hand, if a law were passed proscribing firearms for a self-defense, then it does violate the 2nd Amendment.

Does the Second Amendment protect an individual right to keep and bear arms? (Your opinion.)

Yes. We might note that this right, unlike any other mentioned in the Constitution, needs to be "well-regulated." Personally, I have never touched a firearm, and I hope that I never will; but I'll let other people own firearms in a "well-regulated" way.

Will the Supreme Court agree?

Yes. Open-and-shut case, really.

Will gun rights and gun regulation be an issue in the 2008 presidential campaign?

Nope. War, terrorism, health care, and the economy will be the big issues.

Well, that's the killer of the debate, isn't it? One has to wonder what "well-regulated" can mean and whether or not the Spirit of '76's promise that people can depose government that seems ineffectual to them is still valid? The government has always quashed gun-collecting groups with similar goals, but were they not well-regulated in the first place in order to reach that point of stockpiling and preparedness?

Yes. The Amendment says the “right” to keep and bear ……. And this is an acknowledgement that this is a “right” and is not being conferred by the amendment but further defined.



Yes


Doubt it. Dems know it is a loser for them to mention that they would love to grab all of our guns. They will go out of their way to avoid the issue.
Hillary will no doubt give us something similar to her speech on licenses for illegal aliens.

I am actually curious as to why the Founding Fathers would have written in one right into the Bill of Rights for a militia when 8 of the other 9 were written for the individuals rights and the 10th Amendment was to specifically explain where the rights of the federal government ended and the rights of the states began. The purpose of the Bill of Rights is to protect the people from an overpowering central government. When I look at the issue from that point of view, the 2nd Amendment must be written to protect the rights of the people, not the National Guard. Afterall, I wasn't aware that a military force needed permission to keep and bear arms.

Just to further muddy the waters, since all able bodied men were required to participate in the local militia; "well regulated' may have meant:
"That every citizen so enrolled and notified, shall within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet, and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball."

See, that's a valid way to look at it that could still be said to be strict constructionist.