Apellee's brief in Parker v. District of Columbia

[ksnecktieman]

Hugh??? IF the "Second Amendment only limits the federal government".


Does the first amendment also limit only the federal government? IF you claim they mean different things, can you "translate", or "interpret" the difference, and show the revelant text?

If we could take this argument back in time, and show it to them, I am sure they would change the text of the second amendment. I would expect something like this;

#2 The right of all the people to keep and bear arms, shall not be infringed, by any law, of any level of government.

 

[Ieyasu]

Hugh??? IF the "Second Amendment only limits the federal government".

You guys mind taking that issue to another thread?

Ksnecktieman, if you're claiming the 2A applies to the states via the 14th Amendment that's, one argument, and it belongs in another thread. If you're claiming the 2A was meant to apply as a restriction on the states as well, you're more than a day late and a dollar short.

Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language...

These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)
http://www.constitution.org/ussc/032-243a.htm

Edited to add: In case you missed it, the above is a citation from the Supreme Court from 1833, and is still precedent. I suspect most of us aren't interested in hearing you're opinion on it either (some of us may agree, some may disagree). It's been a long settled point of law, regardless. But if that still claws at you then please open another thread.

Unasked for advice: You'd be better off contending the 2A should be "incorporated."

 

[Al Norris]

Unasked for advice: You'd be better off contending the 2A should be "incorporated."

I would argue that it was incorporated... Only that the SCOTUS read the "privileges and immunities" clause right out of the 14th amendment in the Slaughterhouse Cases.

There is also the argument (on the federal level = DC) that the BOR modified any portion of the Constitution that would tend to negate the actions of the amendments. In the instance of the 2A, the Commerce Clause and/or the "Elastic Clause" have no effect upon the second amendment, as it (the 2A) modifies both, to the tune of, "shall not be infringed."

As a matter of construction, one cannot argue that any original enumerated power can have a legal effect upon this amendment. As an amendment to the Constitution, the amendment affects each and every prior clause that could tend to abrogate the right detailed, unless of course, another amendment was passed that directly affects this amendment. No such amendments have been passed.

Therefore, regardless of, or in spite of any law passed or precedent to the contrary, the amendments (BOR) affect the entire nature of congressional or judicial reach. As a matter of construction, it cannot be otherwise.

The fact that for decades, both the Legislature and the Judiciary have looked askance at rational constitutional construction, only further proves the complicity of each in directing federal power where it may not go.

To my minds eye, it really is that simple.

 

[Malum Prohibitum]

Ah, yes, a decade later how could Tucker possibly understand what happened? I mean, we can't possibly understand the purpose of the laws adopted in 1996, can we? That was so long ago.

The quotes that are here http://www.georgiapacking.org/forum/viewtopic.php?t=344 on page 2, I chose for a special reason. The government in the Parker case has realized that arguing that there is no right that applies to individuals contained in the Second Amendment is ridiculous and destined to lose. Essentially, they have given up arguing that the Second Amendment applies to States instead of people. Instead, they have modified their "collective" argument into the "civic" argument. That is, there is a right that applies to individuals, but it is a civic right, so its only application is within the militia context.

The result is that they end up making the claim that there is no personal use of firearms that is protected by the Second Amendment.

In order to buttress this claim, the government contends that there is no discussion by the Founders of the protection of any personal use of firearms and it was not understood to protect such uses at the time. I quote so much from Tucker because he clearly mentions hunting and self defense (with a "c" - defence) as uses protected by the Second Amendment.

It is no wonder they are working to discredit him.

He is not the only one, though.

 

[Malum Prohibitum]

Saul Cornell

Thanks for the link for Saul Cornell's writing. Kind of surprising that one can be a professor with poor writing skills.

He has a very interesting critique of Don Kates and Randy Barnett:

"Consider the argument of Kates and Barnett who argue that Tucker's writings demonstrate a broad consensus on the meaning of the right to bear arms. Bear in mind that, when Tucker's comments were published, the majority of those who had served in the Congress and state legislatures that enacted the Second Amendment, including Madison himself, were still alive. If these comments were magnifying or misreading the Amendment, surely Madison or one or more other former legislators would have remonstrated with the author or publisher and, if correction was not forthcoming, publicly clarified the record. But none did. Kates and Barnett do not provide a footnote for this claim so it is difficult to evaluate how they arrived at this conclusion. It seems doubtful that they would have surveyed all of the print and archival materials necessary to establish with certainty that no one responded to Tucker."

OK. He publicly accuses them of not researching this issue and just baldly making the claim. Normally, I would expect the next sentence to expose Kates and Barnett for the liars and frauds that they are by simply quoting from numerous criticisms of Tucker's view. Saul Cornell does no such thing. Rather than expose Barnett and Kates as hucksters and con artists, Saul Cornell simply writes a few sentences stating that silence does not equal agreement.

Why is it that advocates of the "collective" and "civics" view of the Second Amendment cannot produce one single quote early on in the republic saying, "Of course this does not apply to self defense, defense of property, or hunting." If this was in question, it would have been debated by somebody.

What about laws prior to 1803 banning firearms? Not allowing them outside of a government armory? Prohibiting possession of them except during official militia practice?

Tucker points out that such laws would be unconstitutional in the United States, that even laws obliquely affecting the right would also be unconsitutional (such as law relating to self defense or hunting rather than blatantly banning arms), and there is no criticism of him until 198 years later (by Saul Cornell).

I think that is telling indeed.

 

[hugh damright]

I quote so much from Tucker because he clearly mentions hunting and self defense as uses protected by the Second Amendment.

Suppose that I felt that duck hunting seasons were oppressive, and I challenged Virginia duck hunting laws with the assertion that I might someday be poor and hungry and need to shoot a duck out of season and if I did I could be arrested ... and I conclude that State duck hunting laws are a violation of the Second Amendment. Would this be a good case? And is it comparable to Parker v DC?

 

[Malum Prohibitum]

In 1803, I am sure it would have been a very good case.

I would also say that in 1803, you would have had a good case to challenge a federal law denying your ownership of whatever rifle was the most modern, lethal, and effective small arm being issued to troops for war. Would you have the same result today? Doubtful.

 

[dragongoddess]

It would seem to me that since the Federal Gov. reserved the rights to say that the individual has the right to bear arms then the states cannot interfere. It also seems that since the First 10 Amendments to the Constitution were written to protect the "rights of the individual" it follows that we are free to have arms(weapons).
It also follows that the individual has the Civic responsibility to not only own firearms but be ready to use them. Our own Declaration of Independence levies that Civic Duty and Civic responsibility on the individual citizen.

*******
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

 

[beerslurpy]

The second amendment only guarantees what is says- a right to keep and bear arms and presumably use them for any lawful purpose that strikes one's fancy. Anywhere that one may lawfully go, one may bear arms. Anywhere that one finds a lawful use for a firearm, one may exercise that use at their discretion. This is what the 2nd amendment protects. It does so to promote the continued health of the militia, but there are no conditions set upon the exercise of the right.

The 2nd amendment doesnt protect any specific uses. Lawful uses are defined in the common law upon which our system of torts and property rights are built. The 2nd amendment merely assures that we will be equipped to take advantage of those common law rights.

The common law right to self defense protects your right to use a weapon in self defense. This is true even in DC and other places where the people are entirely disarmed. The privilege of hunting other people's animals or upon other people's land is not a protected right, nor is hunting out of season (except perhaps out of greater necessity) protected. Likewise, my right to fire my gun stops where one might reasonably expect that doing so would damage the person or property of another.

This is elementary tort and criminal law, which sets out penalties and liabilities to be imposed upon people that misuse weapons to harm other people and their property, violate game laws without proper cause or commit murder under color of self defense. It seems that we exert great effort diminishing these rights in the name of preventing evils that would already be nonexistant if existing laws were effectively enforced. Infringing upon my right to own a gun for self defense or hunting does not diminish murder or poaching in any way.

 

[Malum Prohibitum]

The rights of citizenship - 1856

These include "the right to…full liberty of speech in public and private upon all subjects which [a state's] own citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1856)

Otherwise known as the infamous Dredd Scott decision.

 

[Malum Prohibitum]

Note that Justice Tanney used the word "carry" in place of "bear."

 

[Malum Prohibitum]

Even outside the States - Territories

No one, we presume, will contend that Congress can make any law in a territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the territory peaceably to assemble and to petition the government for redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against itself in a criminal proceeding. (Scott, 60 U.S. at 450.)

 

[Malum Prohibitum]

The majority of the Supreme Court at that time must have bought into NRA propaganda about the rights of American citizenship.

 

[ksnecktieman]

Beerslurpy? I totally agree with you. Do you ever get the idea you are talking to deaf people?

Malum? Can you provide a date for this action, please?
Malum Prohibitum The majority of the Supreme Court at that time must have bought into NRA propaganda about the rights of American citizenship.

 

[Malum Prohibitum]

It is above, in the title - 1856.

Surely you've heard of Dredd Scott.

I'm not deaf. The posts were not aimed at Beerslurpy nor did they have any reference to his post. I just thought some people would like to know how the Supreme Court viewed the Second Amendment as late as 1856. The NRA propaganda bit was obviously a joke that you somehow missed.

 

[Ieyasu]

Hi Malum,

With respect to Scott, you're right, the Court refers to the term "bear arms" in a non-military sense. However as you know, the brief claims such usage is anachronistic. Granted, as you pointed out, Cornell's claim of anachronism with respect to Tucker seems absurd, but I'm not so sure about the claim regarding the Scott case regarding the meaning of the term "bear arms." For example see the following (excerpted from a post elsewhere on the Web) (not my words)(for those who don't recognize it, the representatives quoted are discussing the proposed 2A):

(All quotes taken verbatim from "Creating the Bill of Rights"
ed. Veit, Rowling, Bickford; Debates in the House of
Representatives, August 1789; pp. 182-4, 198-9)

Rep. Boudinot said, "What dependence can be placed in men who
are conscientious in this respect? Or what justice can there be
in compelling them to bear arms, when, if they are honest men
they would rather die than use them."

Rep. Gerry: "Now I am apprehensive, sir, that this clause would
give an opportunity to the people in power to destroy the
constitution itself. They can declare who are those religiously
scrupulous, and prevent them from bearing arms."

Rep. Jackson: Now this, in his opinion, was unjust, unless the
constitution secured an equivalent, for this reason he moved to
amend the clause... Was willing to accommodate; he thought the
expression was, "No one, religiously scrupulous of bearing arms,
shall be compelled to render military service in person, upon
paying an equivalent.

Rep. Sherman: "It is well known that those who are religiously
scrupulous of bearing arms, are equally scrupulous of getting
substitutes or paying an equivalent; many of them would rather
die than do either one or the other."

(Does anyone think that all this talk about "bearing arms" has
anything here to do with merely "carrying guns"? THIS is what
the Congress debated about -- militia service ONLY -- NOT
hunting, or personal self defense! Does anyone think Quakers or
Moravians would "rather die" than "carry" a hunting gun to get a
turkey, or that they'd "rather die" than to "pay an equivalent"
to "carry" that hunting gun around for them and use it in their
stead to kill turkeys for them because THEY have religious
scruples about "carrying guns"!)

Rep. Vining: Hoped the clause would be suffered to remain as it
stood, because he saw no use in it if it was amended so as to
COMPEL a man to find a substitute, which, with respect to the
government, was THE SAME as if the person HIMSELF TURNED OUT TO
FIGHT. [emphasis added]

("The person himself turned out to fight." THAT is what ALL
these persons UNDERSTOOD "bearing arms" to mean! It is
inconceivable to me that anyone reading these exchanges, that
use the term "bearing arms" to ONLY mean militia service,
particularly someone who'd never seen the term "bear arms"
before, could even SUGGEST that the term means anything else --
such as "carry a gun" -- given the context and usage! Just TRY
replacing "bear arms" in these quotes with "carry guns" and see
how ludicrous it sounds!)

"The words 'in person' were added after the word 'arms,' (No
person religiously scrupulous shall be compelled to bear arms IN
PERSON), and the amendment was adopted."

(BEAR ARMS IN PERSON! THAT means, as Madison originally wrote
it, "to render military service in person"! It CAN'T just mean
to "carry a gun in person" as that MAKES NO SENSE! IN PERSON
refers to NOT paying an equivalent to serve in the militia in
one's stead; since IF YOU pay someone else to serve in your
place, as a substitute for YOUR duty, YOU don't have to serve in
the militia (bear arms) IN PERSON!)

There is NO use I know of where the term "bear arms," of itself,
is used to refer to hunting game as it's only reference, or
indeed ANY use other than militia or military context.

 

[hugh damright]

Surely you've heard of Dredd Scott

Dredd Scott was not a SCOTUS ruling saying that the Second Amendment protects an individual right to keep and bear arms wherever we go. I believe that the SCOTUS has consistently ruled that the Second Amendment only limits the US, so I am not moved by someone ignoring all the rulings and holding up Dredd Scott as if it was a ruling which supported his view when it is not.

 

[Malum Prohibitum]

Hugh, I am sorry, but there is not a single case stating that the Second Amendment limits only Congress since the incorporation doctrine. Please keep in mind the Cruikshank said the FIRST Amendment was only a limit on Congress, too.

 

[Malum Prohibitum]

Iaeyasu,

I know it is not your words, but the only description I can muster for that quote is "rant."

"Bear arms" certainly can have a military meaning. Is that the only acceptable use of the term? No, not even in the 1700s. As Dredd Scott shows, certainly not in the 1800s. Anyway, it was used in the context of personal self defense in state constitutions.

"there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service."

Emerson - 270 F.3d 203 (5th Cir. 2001).

 

[Malum Prohibitum]

What is Assumed

Roger Sherman, during House consideration of a militia bill (1790):

the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded.

14 Debates in the House of Representatives, ed. Linda Grand De Pauw. (Balt., Johns Hopkins Univ. Press, 1972), 92-3.

Again, in 1790, "bear arms" used of a "private citizen" defending his "property" when "attacked" "by whomsoever." It is just assumed by the speaker and his audience that this is a right, and Mr. Sherman uses this assumption as the premise of an argument to lead to a conclusion regarding the states, saying, essentially, "Hey, if private citizens can do this, then surely the states can, too?"

I hope these examples suffice to show that "bear arms" was not strictly used in a military sense in the early years of this republic.

That is one meaning, certainly, but it fails to encompass every meaning the Founders intended.

The right of private citizens to keep and "carry" (bear) arms was rarely discussed because there were none among the Founders who would have ever questioned it. It just was not something up for debate.

Standing armies and militias, however, were up for considerable debate!

 

[Ieyasu]

Malum,

None of the quotes you provided contradict the claim that bearing arms meant fighting with arms. There is no way, when those Founders were discussing the 2A that the term could have meant anything else. It could not have included hunting or the mere carrying of arms. Those were activities the Quakers were not prohibited from doing, but it was against their religion to use arms against humans whether in war or for self-defense.

 

[hugh damright]

Hugh, I am sorry, but there is not a single case stating that the Second Amendment limits only Congress since the incorporation doctrine.

You seem to be implying that, under the incorporation doctrine, any given right is incorporated unless the SCOTUS has ruled otherwise. I have a view of it working just the opposite, where no right is incorporated under the 14th unless the SCOTUS rules it to be so. In the case of the Second Amendment, the SCOTUS has never ruled so as to incorporate it, and you construe that to mean that it has been incorporated, but I believe that it means that it remains unincorporated.

 

[Malum Prohibitum]

I am impying nothing of the kind, Hugh. When you make an argument that nobody else has made and then knock it down, that is called a strawman, which is a rather common fallacy on this web site.

Your statement that there is not a Supreme Court case incorporating the Second Amendment is absolutely correct.

My post was in response to this - "I believe that the SCOTUS has consistently ruled that the Second Amendment only limits the US," and the purpose of my post was to point out that these "consistent" holdings to which you refer predate the incorporation doctrine.

I pointed to Cruikshank, specifically, because it illustrates my point rather well by ruling that the First Amendment was no limit upon the states but only upon Congress. The antis never point this out when quoting Cruikshank.

There was no implication in my post, and your inference was unjustified.

 

[Malum Prohibitum]

Malum,

None of the quotes you provided contradict the claim that bearing arms meant fighting with arms.


Really? Even ther Dredd Scott quote that said "carry?"

 

[Malum Prohibitum]

Hugh,

I will add that many states viewed the Second Amendment as a limit upon them, even though the Supreme Court had held the Bill of Rights to be a limit upon only Congress.

Take, for example, my own state, Georgia, in which the Supreme Court held in 1846:

"The language of the second amendment is broad enough to embrace both Federal and State governments—nor is there anything in its terms which restricts its meaning... Is this a right reserved to the States or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disenfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature."


Nunn v. State, 1 Ga. 243, 246, 250, 251 (1846)