Scope of 2nd Amendment's Questioned

[Rusher]

Scope of 2nd Amendment's Questioned

By MATT APUZZO
Associated Press Writer

WASHINGTON (AP) -- In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday that the Second 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 Second 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 assault 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 Second 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 Second 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?"

---

The case is: Shelly Parker et al v. District of Columbia, case No. 04-7041.

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[ZeSpectre]

Well, it's been rumored that Fenty (as incoming mayor) is interested in smashing the weapons ban in DC. Dunno what's going to come of all of this.

 

[RaetherEnt]

If this WERE to make it to the SCOTUS it could be very good for gun owners...Or very bad.

 

[jlbraun]

I'm already in a "well-regulated militia", according to the US Civil Code Section 10.311:

Militia: composition and classes

(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.


Where's my M4?

 

[azredhawk44]

2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Playing devil's advocate here...

Is an "unorganized" militia the same thing as a "well regulated militia"? I wouldn't think so from surface analysis...

 

[Henry Bowman]

If this WERE to make it to the SCOTUS it could be very good for gun owners...Or very bad.

Or not. They would likely affirm that it protects an individual right, but that the right is subject to "reasonable regulation" (i.e., unlimited infringement). :banghead:

 

[armoredman]

..."If we decide that it's no longer necessary, can we erase any part of the Constitution?"

Does that just send chills up your spine, or what...

 

[Little-Acorn]

They would likely affirm that it protects an individual right, but that the right is subject to "reasonable regulation" (i.e., unlimited infringement).

Well, that's pretty much been their stand for the last 70 years or so, wrong though it is.

However, noting ever remains totally the same. One of the better parts of GWB's checkered legacy, is that he has appointed two pretty good justices to the Supreme Court lately. Two men who have a reputation for going by exactly what the law says, even if they don't LIKE what the law says.

Remember John Roberts' "French Fry" case when he was on the DC Circuit? A teenage girl had bought some french fries before going into a subway station, and ate one while waiting for the train. There were "NO FOOD OR DRINK IN THE SUBWAY STATION" signs around. Cops came, arrested her, cuffed her, put her in a patrol car, and took her down to the station where her parents had to come get her. All for eating ONE french fry in the station.

Roberts wrote the opinion on the case, and he upheld the cops' actions. But he said in his opinion, that the law empowering them to cuff this teenager and haul her down to the station, was a terrible law, and that if he were on the DC city council (or whatever body passed the law) he definitely would have voted against it. But then he stated that the city council WAS empowered to pass such a law, the cops WERE empowered to do what they did according to what the law said, and therefore he had to uphold it too. He pointed out in his opinion, that it wasn't his job as a judge, to decide whether a law was good - only whether the law was LEGAL, which this one technically was. It was the elected city council's job to decide what laws were good. (BTW, the city council repealed that law shortly after this case).

Somebody like that could very well look at the text of the 2nd amendment and point out that it simply says the RKBA cannot be taken away or restricted. And it explains why. Period - no mention of "reasonable restrictions", even if Roberts or you or I think that "reasonable restrictions" are a good idea (I don't). No conditioning of the right upon whether you were in the militia or whether the gun was a "military style" weapon. Simply, the right cannot be taken away or restricted. He might then offer respect to stare decisis - US v. Miller has been decided for 70 years and should not simply be chucked. Or maybe it should since it was one of the worst legal decisions in Supreme Court history.

But Roberts might be the kind of guy who simply says, "Sorry, gun-haters, the law is clear. This gun control law you're pushing, flatly violates the text of the 2nd amendment, whether you or I think gun control is good or not."

Alito might also do it.

It strikes me as total wishful thinking that the Supremes might actually overturn US v. Miller in my lifetime. But then, I didn't think the Berlin Wall would fall or the Soviet Union break up, either.

Things are not impossible. We just need law-abiding justice on the Courts... and recently we've been getting them. Enough? I guess we'll find out.

 

[Axman]

Search is your friend.

This is already being discussed here-->http://www.thehighroad.org/showthread.php?t=239406

 

[glummer]

azred

Is an "unorganized" militia the same thing as a "well regulated militia"? I wouldn't think so from surface analysis...

The classification of the militia given above is certainly an act of regulation. The "well regulated militia" is composed of several parts, of which the "unorganized' is one.

 

[hugh damright]

[Roberts] said in his opinion, that the law ... was a terrible law, and that if he were on the DC city council (or whatever body passed the law) he definitely would have voted against it. But then he stated that the city council WAS empowered to pass such a law ... Somebody like that could very well look at the text of the 2nd amendment and point out that it simply says the RKBA cannot be taken away or restricted.

I don't see how you construe this to mean that he would rule that the RKBA cannot be taken away or restricted. If anything, I think it would mean that, whether he likes the DC gun laws or not, he would be big enough to respect that DC is empowered to pass such laws.

 

[The Real Hawkeye]

Is an "unorganized" militia the same thing as a "well regulated militia"? I wouldn't think so from surface analysis...

No, they are distinct. Members of any militia, well regulated or otherwise, however, are drawn from the general militia, i.e., every able bodied man, capable of carrying a gun, who is available with his own weapon, ammo and supplies, for service in the active militia, which one hopes will be well regulated, i.e., well trained and prepared, if and when it is called to respond to an emergency (A historical example of this was the militia's response to the 1859 capture of the Harpers Ferry Armory by John Brown and his gang of outlaws). This is why the right of the people (i.e., members of the general militia) to keep and bear arms shall not be infringed, i.e., because if it is infringed, there will be no source from which to draw members of an active and, one hopes, well regulated militia, if and when the need for one should arise. Just as you cannot suddenly call into action a well regulated marching band without first having a population free to possess and practice with brass instruments and the like.

Militias, by accepted definition, are made up of ordinary folks bringing their own guns and gear. Therefore, you cannot have a "well regulated" one if the general militia (the source of members for any well regulated one) is not free to keep and bear arms, thus the prohibition of the Second Amendment against infringing on the right of the people to keep and bear arms. Notice it does not say, "the right of members of the afore mentioned militia to keep and bear arms shall not be infringed." The Founders were not stupid men. Far from it. If that's what they intended, that's exactly what they would have said. You have to be highly motivated in the antigun direction to misconstrue the Second Amendment in this way. It is not difficult English.

 

[glummer]

Hawkeye

This is why the right of the people to keep and bear are shall not be infringed, i.e., because if it is, there will be no source from which to draw members ...

That strikes me as a dangerously narrow position to take. "This is why ..." implicitly accepts the "militia only" argument. Better to say something like "this is one reason" for the RKBA, or "this is the reason the miltia is tied to the RKBA." Doing it the other way has the tail wagging the dog.

 

[General Geoff]

always being the optimist, I'm hoping that this case is argued to the Supreme Court, and they finally strike it down, in the process taking down the NFA of 1934 with it.

That's a day to which I look forward.

 

[hugh damright]

"This is why ..." implicitly accepts the "militia only" argument. Better to say something like "this is one reason" for the RKBA, or "this is the reason the miltia is tied to the RKBA".

I think that there are many reasons for the RKBA: for hunting, for self-defense, for going to turkey shoots ... but these are all intrastate affairs ... the only federal protection of our individual RKBA is as it relates to militia. I don't see it as "dangerously narrow", I see it as limited federal government.

 

[The Real Hawkeye]

That strikes me as a dangerously narrow position to take. "This is why ..." implicitly accepts the "militia only" argument. Better to say something like "this is one reason" for the RKBA, or "this is the reason the miltia is tied to the RKBA." Doing it the other way has the tail wagging the dog.

I am not making this stuff up as I go along. The reason the Founders felt it crucial to prohibit the Federal Government from infringing on the admittedly preexisting right of the people to keep and bear arms was their conviction that a well regulated militia is necessary to the security of a free State. You cannot have a well regulated militia if the people are not first at liberty to keep and bear arms, since the definition of a militia, quite distinct from a military force, is a force of armed men, drawn from the armed population at large, in response to some pressing emergency. It doesn't necessarily have to be "well regulated" until that emergency occurs, but it does, by definition, have to be armed. That is, by definition, a prerequisite for membership in any well regulated militia, i.e., that you are already armed when you arrive.

It's nice that our government seems to respect, at every level, our individual right of self defense with arms, but that has nothing to do with the Second Amendment. We inherited the right of self defense from the English Common Law tradition, which became codified in the penal codes of our respective States.

 

[Little-Acorn]

[Roberts] said in his opinion, that the law ... was a terrible law, and that if he were on the DC city council (or whatever body passed the law) he definitely would have voted against it. But then he stated that the city council WAS empowered to pass such a law ... Somebody like that could very well look at the text of the 2nd amendment and point out that it simply says the RKBA cannot be taken away or restricted.

I don't see how you construe this to mean that he would rule that the RKBA cannot be taken away or restricted. If anything, I think it would mean that, whether he likes the DC gun laws or not, he would be big enough to respect that DC is empowered to pass such laws.

I assume your reply is meant as a joke. But here's the answer, for those who don't already know: DC (and all states, towns etc.) is empowered to pass any laws that do not run contrary to higher laws in the country. That includes the Constitution in this case. No part of the Constitution forbade DC from passing a law saying teenage girls could be cuffed and hauled down to the station for eating a single French fry in a subway station. But part of it DOES forbid DC from passing a law banning certain guns, as the law in question does. That part is the 2nd amendment.

Some people (most of the legal establishment, actually) say that the Bill of Rights (incl. the 2nd) was intended to restrict only the Fed govt, not the states or lower govts. That may be... but the people of the U.S. didn't ratify the Framers' intentions. They ratified the words printed on the paper that is the Constitution and (later) its Bill of Rights. Those words are what is now law, not the Framers' intentions, if there are any differences. If the Framers blew it by writing something other than what they intended, sorry. The text of the law must supersede what they intended. Only where the text of the law is unclear, should the Framers' original intent be considered.

And the 2nd amendment is very clear. Since an armed populace is necessary, the right to own and carry guns can't be taken away or restricted. Period. It doesn't say "Congress shall make no law", as the 1st amendment does - a phrase that restricts the 1st's effect to just the Federal govt. But the 2nd simply says the right to KBA can't be taken away. That means, by ANY government - Fed, state, or local. Including DC's govt.

My view probably isn't popular among certain lawyers. They'd rather find excuses to claim the Constitution doesn't mean what it says. I hold that it does mean what it says, and the parts I'm talking about do not have two possible meanings.

I believe that Roberts would agree, based on his past decisions. He carefully goes by what the law says, and does NOT try to find excuses for ruling any other way... even in cases where common sense dictates that a different ruling would be more appropriate. Roberts feels that, if the law should say something else, it's up to the legislature to change it, not the courts. And the legislature often does, as the did with the French fry law. It is NOT for judges to change the law, or "interpret" it in a manner other than what it clearly says.

 

[Little-Acorn]

This is why the right of the people to keep and bear are shall not be infringed, i.e., because if it is, there will be no source from which to draw members ...

That strikes me as a dangerously narrow position to take. "This is why ..." implicitly accepts the "militia only" argument. Better to say something like "this is one reason" for the RKBA, or "this is the reason the miltia is tied to the RKBA." Doing it the other way has the tail wagging the dog.

The 2nd amendment does offer a reason why the RKBA cannot be infringed... but it doesn't make its ban contingent upon that reason.

Suppose the 2nd said instead:

"The moon being made of green cheese, the right of the people to keep and bear arms shall not be infringed."

Then in the 20th century, astronauts finally land on the moon and prove once and for all it is NOT made of green cheese. Would this mean that the 2nd now says it's OK to infringe the RKBA?

It doesn't. Even if the initial explanation is proven wrong, the second part of the amendment is NOT affected. That's English 101, folks. For those who believe otherwise, your grammar teacher is rolling over in her grave.

The phrase about a well-regulated militia has NO effect on the 2nd's ban on govts infringing the RKBA. Unless you flunked English 101. And even if you flunked, the Framers didn't, and the amendment is STILL an unconditional ban.

 

[CountGlockula]

Militias only...

So where do I sign up for my local militia?

 

[up_onus]

According to Based on the Random House Unabridged Dictionary, © Random House, Inc. 20

or looking up "militia" on dictionary.com
http://dictionary.reference.com/browse/militia

1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service. 4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

leaves a lot of people out (sorry for you that are too young or old )

 

[Little-Acorn]

"Ultima Ratio Regnum" = "The Final Argument of Kings"
(King Louis XIV had these words stamped onto the barrel of every cannon forged during his reign.)

And where is he now?

Didn't do him much good, did they? Looks like he ran into an argument that was even more final.

 

[hugh damright]

I assume your reply is meant as a joke. But here's the answer, for those who don't already know: DC (and all states, towns etc.) is empowered to pass any laws that do not run contrary to higher laws in the country. That includes the Constitution in this case. No part of the Constitution forbade DC from passing a law saying teenage girls could be cuffed and hauled down to the station for eating a single French fry in a subway station. But part of it DOES forbid DC from passing a law banning certain guns, as the law in question does. That part is the 2nd amendment.

Some people (most of the legal establishment, actually) say that the Bill of Rights (incl. the 2nd) was intended to restrict only the Fed govt, not the states or lower govts. That may be... but the people of the U.S. didn't ratify the Framers' intentions. They ratified the words printed on the paper that is the Constitution and (later) its Bill of Rights. Those words are what is now law, not the Framers' intentions.

No, I'm not joking.

The people of the US didn't ratify the Framers' intentions? How about the States, what did they ratify? Did they ratify what they meant to ratify, what they understood themselves to be ratifying ... is the US Constitution still a compact between the States? You seem to say that however you read it, that is what it means now.

 

[hugh damright]

The 2nd amendment does offer a reason why the RKBA cannot be infringed... but it doesn't make its ban contingent upon that reason.

The Second Amendment only limit the US.

I believe that any federal protection of our individual RKBA comes from the militia power, and the only federal protection of our individual RKBA is as it relates to militia. So, any federal protection is contingent upon that reason. That is exactly what it is contingent upon.

 

[Ivy Mike]

up_onus, militia is clearly defined in US law.

http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html

§ 311. Militia: composition and classes

(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.


oddly enough, this sorta confirms DC's argument, just not in the way they would like. Its true that the 2nd Amendment applies to militia, but of course, everyone is a member of the militia. Now of course, we can't limit ownership based on sex and age, that would be discriminatory.
Man, this is sure easy when logic is on your side.

 

[Little-Acorn]

The people of the US didn't ratify the Framers' intentions?

... but the people of the U.S. didn't ratify the Framers' intentions.

How about the States, what did they ratify?

They ratified the words printed on the paper that is the Constitution and (later) its Bill of Rights.

Did they ratify what they meant to ratify, what they understood themselves to be ratifying

I guess you'll have to ask them what they meant to ratify. Let me know what they say.

But what they DID ratify, was the words of the Constitution and (later) its Bill of Rights.