D.C. Argues Gun Rights Only For Militias

[snafu]

Long-time lurker ... I am not a troll

Saw this on a local news website here in Colorado. Wonder if this will become the 2A case before the Supreme Court we've been hoping for? Oh, also click on the survey after the first paragraph:

http://www.thedenverchannel.com/politics/10485690/detail.html

WASHINGTON -- In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday that the 2nd Amendment right to bear arms applies only to militias, not individuals.

The city defended as constitutional its long-standing ban on handguns, a law that some gun opponents have advocated elsewhere. Civil liberties groups and pro-gun organizations say the ban in unconstitutional.

At issue in the case before a federal appeals court is whether the 2nd Amendment right to "keep and bear arms" applies to all people or only to "a well regulated militia." The Bush administration has endorsed individual gun-ownership rights but the Supreme Court has never settled the issue.

If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the amendment's scope. The court disappointed gun owner groups in 2003 when it refused to take up a challenge to California's ban on high-powered weapons.

In the Washington, D.C. case, a lower-court judge told six city residents in 2004 that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who want guns for protection.

Courts have upheld bans on automatic weapons and sawed-off shotguns but this case is unusual because it involves a prohibition on all pistols. Voters passed a similar ban in San Francisco last year but a judge ruled it violated state law. The Washington case is not clouded by state law and hinges directly on the Constitution.

"We interpret the 2nd Amendment in military terms," said Todd Kim, the District's solicitor general, who told the U.S. Court of Appeals for the District of Columbia Circuit that the city would also have had the authority to ban all weapons.

"Show me anybody in the 19th century who interprets the 2nd Amendment the way you do," Judge Laurence Silberman said. "It doesn't appear until much later, the middle of the 20th century."

Of the three judges, Silberman was the most critical of Kim's argument and noted that, despite the law, handguns were common in the District.

Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment's language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

"That's quite a task for any court to decide that a right is no longer necessary," Alan Gura, an attorney for the plaintiffs, replied. "If we decide that it's no longer necessary, can we erase any part of the Constitution?"

 

[Little-Acorn]

I doubt this will "shape firearms laws nationwide". The 9th Circus has already declared loudly that the 2nd refers only to militias and collective groups. The 5th Circuit has said just as loudly that it refers to individuals. Now the DC Circuit will probably pick one of those two versions. Either way, it won't be news.

Only thing of any significance this might do (aside from keeping a few hundred thousand crime victims disarmed before their heavily-armed assailants) might be to get the Supreme Court off its duff at last, and get it to grant cert and rule on the question, possibly re-examining the travesty of US v. Miller in the process. But that's probably wishful thinking on my part.

An interesting facet here (please correct me if I'm wrong) is that there is no "state" whose powers might be usurped by a Federal ruling. The District of Columbia is not a "state", nor does it reside within a state. It apparently has a City Council of some kind (correct?). But doesn't Congress itself decide all DC matters that fall outside that city council?

I wonder if that makes any difference in 2nd amendment jurisprudence?

An interesting quote from one of the lawyers about whether, if a militia is no longer necessary, do gun rights no longer exist? He's carfully misinterpreting the 1st phrase of the 2nd amendment.

The correct interpretation is:

"Since an armed and capable populace is necessary for security and freedom, the right of ordinary people to own and carry guns and other such weapons, cannot be taken away or restricted."

 

[Euclidean]

Even if you do go with their interpretation, it should be obvious to anyone who owns a television that a militia is very necessary. Never mind the fact they're full of it to begin with.

 

[dave_pro2a]

"An interesting quote from one of the lawyers about whether, if a militia is no longer necessary, do gun rights no longer exist? He's carfully misinterpreting the 1st phrase of the 2nd amendment."

It figures a lawyer is either that dumb, or that slimy.

The right exists INDEPENDENT of government. You'd think he'd at least know what unalienable means.

 

[lamazza]

I suppose we would all have to join a militia..

 

[Little-Acorn]

Technically, we already have. The most common definition of a militia, is all able-bodied men able to carrry and use weapons. You're it whether you signed up or not. Nowadays it probably includes women, too.

 

[hugh damright]

But doesn't Congress itself decide all DC matters that fall outside that city council? I wonder if that makes any difference in 2nd amendment jurisprudence?

The US Congress has jurisdiction over DC and so they are empowered to decide the gun laws in DC. There was recently some such legislation but it failed. I think that if the SCOTUS rules on the gun laws in DC it would be legislation from the bench, an attempt to get legislation that has already failed in Congress.

 

[Little-Acorn]

I think that if the SCOTUS rules on the gun laws in DC it would be legislation from the bench, an attempt to get legislation that has already failed in Congress.

???

You mean, if they grant cert, take this case after the DC Circuit rules, and then the SCOTUS declares that gun rights are only for militias and groups? That would indeed be legislation from the bench.

But if SCOTUS ruled that the DC law violates the 2nd amendment's guarantee that INDIVIDUALS have the right to KBA, that would not be legislating from the bench. It would merely be pointing out what the Const (2nd amd) already says.

And it would turn US v. Miller on its ear. In fact, it would be the best of all possible outcomes IMHO, since nearly all so-called "gun control" cases use US v. Miller as a precedent. Down comes the entire house of cards!

 

[hugh damright]

I'm simply saying that the Constitution delegates to the US Congress the power to exercise exclusive legislation in all cases whatsoever over DC. If the Congress wants to legislate DC gun laws then they have the power. The US Legislative branch has the power. The US judicial branch does not.

 

[Ivy Mike]

Little-Acorn,

you can find the legal definition of militia here. States may have their own definitions.

http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

The only thing I can see that MAY be construed to say that the 2nd Amendment refers to a collective right, is Article 1 - Section 8 when congress is tasked with arming the militia.

http://www.usconstitution.net/const.html
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

It would take some interesting twists of logic, but it could be argued that since congress is tasked with arming militia, that the right in the 2nd amendment only refers to military uses by groups allowed by congress.
However, that would also pose a problem as the definition of militia above only allows for men. I don't think women are all that ready to jump back into second class citizenship just because they're not in the Natl. Guard. I know my own momma isn't going to give up her gun unless its bullets first.

basically, the quacks in DC are pissing on their own feet and its just going to take a sensible judge to tell them so.

 

[secondamender]

So if the Congress declares that Washington, D.C. will have an official religion, can the Supreme Court strike that down as a violation of the Establishment Clause?

What if the Ohio Legislature, which has legislative authority over Ohio, bans all guns tomorrow? Would it be "legislating from the bench" to strike down the law?

"Legislating from the bench" is one of those overused slogans that has been stretched well beyond its proper meaning. The Supreme Court doesn't need to *invent* the Second Amenment, merely to apply it.

 

[Manedwolf]

I suppose a recursive definition might actually be a good thing to clarify it for all time, if someone really wants to protect the rights.

Define members of the mitilia as ANY able-bodied citizen of good standing (strictly defined as not a felon convicted by a jury of their peers) who is physically and mentally able to use a firearm. Everyone here would automatically be that. Everyone here can pick up a gun and use it. You're militia. Period.

Basically, if you're not convicted of a felony by a jury of your peers, the very fact that you CAN pick up a gun and use it means you are part of the militia, that's it, that's the definition.

Would be nice.

 

[Zero_DgZ]

Yeah? Let's see D.C. argue that free speech only applies to "militias" and we'll see how far that one flies.

A well regulated library, being necessary to the education of a free state, the right of the people to keep and read books shall not be infringed.

Anyone going to argue that this means only libraries can have books?

Sheesh.

 

[crunker]

Who said something about the right being necessary?

As long as it's there, you can't **** with it.

 

[Ivy Mike]

secondamender, the whole problem comes from a power grab by the courts made way back with Marbury v. Madison.

Some people feel that it gave the courts too much power or at least the opportunity to abuse their power, hence the "legislating from the bench" remarks we see all too often.

As long as they enforce the laws of this country, I've got no problem. That does include striking down laws that should never have been passed in the first place.

 

[hugh damright]

So if the Congress declares that Washington, D.C. will have an official religion, can the Supreme Court strike that down as a violation of the Establishment Clause?

The First Amendment says "Congress shall make no law", so if they did make such a law, I reckon the SCOTUS should declare it to be unconstitutional. But we are talking about DC laws, not federal laws ... and we are talking about the Second Amendment which has never been incorporated, not the First Amendment which I believe has been incorporated.

What if the Ohio Legislature, which has legislative authority over Ohio, bans all guns tomorrow? Would it be "legislating from the bench" to strike down the law?

No. But we are not talking about banning all guns, nor are we talking about a State.

"Legislating from the bench" is one of those overused slogans that has been stretched well beyond its proper meaning. The Supreme Court doesn't need to *invent* the Second Amenment, merely to apply it.

When you say "apply it", don't you really mean "reconstruct it"? You want the SCOTUS to make a ruling that turns the Second Amendment into something that it was not intended to be and has never been before.

My impression is that Congress has the power to legislate on this matter, legislation was considered and it failed ... now y'all want the SCOTUS to do what the Congress refused to do, and I call that "legislation from the bench".

 

[GRIZ22]

Article I, Section 8 refers to the state's militia, now the National Guard. The 2A is 3 separate thoughts separated by commas (check a punctuation guide), "a well regulated militia....security of the state.....the right of the people to keep and bear arms". Being they already mentioned the state militia in Art I Sec8,the fine people who wrote the Constitution meant the unorganized militia in the 2A. In any case the RKBA had nothing to do with the militia as evidenced by the punctuation in the 2A. If they wanted to have arms just for the militia there would be no mention of "the people".

In any case appellate court decisions are only binding in their circuit, they can be used as arguments in other areas and referred to as precedents. The only way to get a national binding decision is from the Supreme Court.

Many people mention US vs Miller as a precedent against the RKBA. If you read the full decision Miller was convicted of a NFA violation, possession of a sawed off shotgun and claimed the NFA was unconstitutional. In the decison the court noted that there was no military purpose for a sawed off shotgun so the NFA was constitutional. US vs Miller is more a reinforcement of the right of the people to own military style weapons.

 

[Cosmoline]

I'm simply saying that the Constitution delegates to the US Congress the power to exercise exclusive legislation in all cases whatsoever over DC. If the Congress wants to legislate DC gun laws then they have the power. The US Legislative branch has the power. The US judicial branch does not.

Nope. The Art. III courts have review power in DC over all federal matters. The DDC has somewhat broader original jurisdiction than other federal district courts because of the unique nature of Washington DC. DC is not a state, so the usual principles of federalism don't really apply.

 

[Blackfork]

Newsflash!

If the Federal Courts were going to save the Bill of Rights, instead of shackle it in caselaw and abridgements, they would have already done so.

Remember- the Feds said that the FBI burning the Davidians...was the Davidians fault. Even the kids. No compensation. The Feds LOVE Miller. Look at the Commerce Clause and see what's in store for the US Constitution. Remember the "Free Speech Zones" outside both parties political conventions? Wrapped in razor wire? Notice the TSA searching your stuff at airports? The Feds RULE. That isn't going to change.

The Feds aren't going to save the BOR. Ever. They intend to enshrine it in 1000 caselaw tracts so that it means nothing.

So I wouldn't get my hopes up that we are returning to the Republic. We aren't. We are moving to a corporate model of governance. The Bill of Rights will be venerated, like the dried and shrunken corpse of a long dead saint, buried in a granite sarcophocas.

 

[ArmedBear]

There's another amendment that I find interesting. That would be XIV, which begins:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

I believe this has been interpreted to mean that Constitutional rights apply to all citizens of the US, regardless of State laws and State Constitutions, and cannot be taken by States any more than by the Federal Government.

Several high-profile cases have depended on this interpretation for standing. These include the recent Kelo decision and Roe v. Wade, both of which involved State laws and State actions, not Federal ones. Regardless of the decisions, the cases would not have even been heard by SCOTUS except based on this interpretation.

So... Why does this not apply to the 2nd Amendment? Or does it?

 

[GRIZ22]

Hugh, applying the 2A doesn't necessarily mean reconstruct it. The SCOTUS has had to apply the amendments to changes in society and technology. The had to apply the 1A to radio, TV, and other modern media. They had to apply the 4A to wiretaps and other electronic communications.

In the 1920s the Supreme Court ruled telephone wire taps were legal as there was no expectation of privacy to the telephone wires outside. Applyin the amendments doesn't mean reconstructing them.

 

[mountainclmbr]

The sole purpose of the Bill of Rights was to limit the power of government. Can anyone explain to me why the government's power would be limited by only allowing the government or some other "collective" group to have firearms while denying them to citizens?

 

[hugh damright]

The Art. III courts have review power in DC over all federal matters.

Is everything in DC a federal matter? I thought DC had local government, and that the gun laws in question are local laws, not federal laws.

 

[geekWithA.45]

The Forces of Organized Gun Bigotry like to make much of their contention that we gunnies allegedly like to sweep the 2nd Amendments prefatory language under the rug.

"A well regulated Militia, being necessary to the security of a free State,"

In their view, we like to do this in order to escape what they believe is the (erroneous) consequence of the language, that RKBA is a "collective" right.

They're wrong, as usual.

This phrase not only explains and justifies why RKBA is protected, but it also makes an assertion, that without RKBA, a state is niether free nor secure.

 

[ConstitutionCowboy]

When you say "apply it", don't you really mean "reconstruct it"? You want the SCOTUS to make a ruling that turns the Second Amendment into something that it was not intended to be and has never been before.

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859

The Texas Supreme Court believed the 2A applies to the states and that it protects a right of the individual.

My impression is that Congress has the power to legislate on this matter, legislation was considered and it failed ... now y'all want the SCOTUS to do what the Congress refused to do, and I call that "legislation from the bench".

The Court wouldn't be legislating from the bench, it would be striking down unconstitutional legislation.


Woody


Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood