Supreme Court could take guns case

Discussion in 'Legal' started by The Annoyed Man, Nov 12, 2007.

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  1. Shawnee

    Shawnee member

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    Beware !!!

    This is NOT good news..., except maybe for Hillary and her friends.

    11/15/2007 10:14:00 AM

    High Court may look at gun rights :uhoh:

    By MARK SHERMAN Associated Press Writer

    WASHINGTON (AP) - Supreme Court justices have track records that make predicting their rulings on many topics more than a mere guess. Then there is the issue of the Second Amendment and guns, about which the court has said virtually nothing in nearly 70 years.

    That could change in the next few months.

    The justices are facing a decision about whether to hear an appeal from city officials in Washington, D.C., wanting to keep the capital's 31-year ban on handguns. A lower court struck down the ban as a violation of the Second Amendment rights of gun ownership.

    The prospect that the high court might define gun rights under the Constitution is making people on both sides of the issue nervous.

    "I wouldn't be confident on either side," said Mark Tushnet, a Harvard Law School professor and author of a new book on the battle over guns in the United States.

    The court could announce as early as Tuesday whether it will hear the case.

    The main issue before the justices is whether the Second Amendment protects an individual's right to own guns or instead spells out the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.

    The Second Amendment reads: "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."

    The federal appeals court for the District of Columbia was the first federal panel to strike down a gun-control law based on individual rights. The court ruled in favor of Dick Anthony Heller, an armed security guard whose application to keep a handgun at home was denied by the district.

    Most other U.S. courts have said the Second Amendment does not contain a right to have a gun for purely private purposes.

    Chicago has a similar handgun ban, but few other gun-control laws are as strict as the district's.

    Four states - Hawaii, Illinois, Maryland and New York - are urging the Supreme Court to take the case because broad application of the appeals court ruling would threaten "all federal and state laws restricting access to firearms."

    The district said its law, passed in 1976, was enacted by local elected officials who believed it was a sensible way to save lives. The law also requires residents to keep shotguns and rifles unloaded and disassembled or fitted with trigger locks.

    The city's appeal asks the court to look only at the handgun ban because local law allows possession of other firearms.

    Critics say the law has done little to curb violence, mainly because guns obtained legally from the district or through illegal means still are readily available.

    Although the city's homicide rate has declined dramatically since peaking in the early 1990s, it ranks among the nation's highest, with 169 killings in 2006.

    Heller said Washington remains a dangerous place to live. "People need not stand by and die," he said in court papers.

    He said the Second Amendment gives him the right to keep working guns, including handguns, in his home for his own protection.

    The last time the court examined the meaning of the Second Amendment was in a 1939 case in which two men claimed the amendment gave them the right to have sawed-off shotguns. A unanimous court ruled against them.

    Gun control advocates say the 1939 decision in U.S. v. Miller settled the issue in favor of a collective right. Gun rights proponents say the decision has been misconstrued.

    Chief Justice John Roberts has said the question has not been resolved by the Supreme Court. The 1939 decision "sidestepped" the issue of whether the Second Amendment right is individual or collective, Roberts said at his confirmation hearing in 2005.

    "That's still very much an open issue," Roberts said.

    Both the district government and Heller want the high court to take the case. The split among the appeals courts and the importance of the issue make it likely that the justices will do so, Tushnet said.

    The case is District of Columbia v. Heller, 07-290.

    ---

    Mark Sherman is a writer for The Associated Press.
     
  2. esheato

    esheato Member

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    Bravo!
     
  3. Jorg Nysgerrig

    Jorg Nysgerrig Member

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    The Parker/Heller case has been the topic of discussion here for months. Also, your assertation that "This is NOT good news." really needs something to back it up, especially in light of the discussions currently taking place. One of the more recent threads about this case is here.
     
  4. legaleagle_45

    legaleagle_45 Member

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    Really?? <sarcasm mode on>

    :what:

    <sarcasm mode off>

    Espescially considering that most circuits have rejected the individual rights thesis. If Heller wins... new ballgame. If Heller loses, then we are back to the status quo ante... We have everthing to win and not really much to lose. It is as simple as that.
     
  5. Matt304

    Matt304 Member

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    Guys, are they trying to ban handguns across the US by this decision? I guess I am a little unclear from the initial reading.
     
  6. Jorg Nysgerrig

    Jorg Nysgerrig Member

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    No.
     
  7. 308win

    308win Member

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    I don't understand the logic that underlies the view that the 2A spells out the collective rights of the states to maintain militias. This view to me implies that the states have the right to require involuntary service. In the period prior to the framing of the constitution the government never instituted involuntary military service even though the additional manpower would have been a godsend. Because a "draft" wasn't a strategy to raise an army what logic supports the view that the 2A was created to grant this right to the individual states. I know of no state that has a state draft nor has any state ever had a state draft.
     
  8. Outlaws

    Outlaws Member

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    How many threads do we need for this crap?

    Can someone just post the new date that the court will decide on taking the case? I just know its the end of November sometime. 20 something.
     
  9. hugh damright

    hugh damright Member

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    The States already had militia, and when they framed the federal government they did not give up their militia. So it's not that the Second Amendment was created to grant a States' right to militia, but rather to preserve the right.


    "Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies." -1777 Georgia State Constitution
     
  10. Baba Louie

    Baba Louie Member

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    Had an interesting discussion on this topic Friday with a friend. He is a hard core Dem. (A hunter who leaves his "deer" rifle at a friends house, because "guns are dangerous" and only shoots it once a year (deer season). He raises money for a lot of D's and spends hours talking with elected officials and their staff members, local, state and federal levels. That bit of background, so you know from whence this comes. He spent Thursday talking with HRC staffers... LV D-Pres candidate debate in town)

    His take (and I would assume the same from others cut from the same bolt of cloth):
    The District of Columbia is not a "State". It has no State Constitution. It does not have nor did it ever have a "Well Regulated Militia". (hold that thought for a second)
    Furthermore, the 2nd does not give anyone a right, it was set up to keep Congress from infringing on the rights of the people in each "Free State" who had a right to keep and bear arms if and only if they were members of that particular State's Well Regulated Militia (trained, armed and under state control), noting that NY (his home state) does not have a RKBA Constitutional clause as opposed to VA's, also noting that State's such as PA which had a large population of Quakers, known religious C.O.'s (who) were excused from Militia obligation, etc. We extrapolate the RKBA from the language of the 2nd to be an individual rights thing, but it was written only to put a check on the Fed's not allowing them to usurp each "Free State's" constitutional law as they each had different laws in this regard.

    So, his point is this. If D.C. does not have a WR militia, is not a free state and has no declared RKBA, the population living there, who are NOT members of a militia fall under Congressional control or it's controlling committee, either elected or appointed and have no 2nd amendment protection from oversight in this regards (he poo-poo'd the "Un-organized" militia argument as invalid as it has never been brought into play this past century nor would any elected politician in his right mind do so). The DC citizenry do not live in a "free state" but rather in a distinct governmental enclave free from state obligations, jealousy and discriminations from which conflict might arise and as such must abide by rules set up for the proper function of that government within the district proper. If they say "No Guns", they mean and can get away with "No guns" for the population within the boundaries of that enclave, similar to say, the US Embassy in Paris or an Army Base, etc. and must depend on the governmental authority for protection. It is a given that all animals are NOT equal.

    When I questioned freedom of speech, religion, assembly, etc and asked him if the pop of DC lacked those rights as well his response was that none were absolute and that each was controlled to a degree. (business license for media, permits for gathering, filing as "non-profit" org, etc) The DC population can say and do what they will as long as it does not interfere with the operation of the Federal Government.

    :confused: :eek: :rolleyes:

    I told him I only hoped that he would be proven wrong soon as the DC Court had ruled that DC's laws were in violation of the 2nd and that DC had appealed it upward. IF SCOTUS denies then their ruling stands.

    Is he "more" right than "wrong"? Totally right? Totally wrong? More wrong than right?

    But then again, he is an engineer, not an attorney. I suppose I'm glad he crunches numbers for a living.
     
  11. Scottmkiv

    Scottmkiv Member

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    I don't understand that argument at all Baba Louie. The 2nd amendment never says anything about "Free States" I have no idea how he inserted that phrase into the discussion.

    The 2nd amendment just says " the right of the people to keep and bear arms shall not be infringed." Not the rights of the free states to keep militias. That is just an absurd made up "interpretation".
     
  12. Jeff White

    Jeff White Moderator Staff Member

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    I wonder what the men and women of the 260th MP Command, 260 RTI, HQ DARC, 121 CID, Det 4 OSACOM, Mob Aug Command, 121 Med Company, 33d CSC, Det 3 H&D, 74 Troop Command, and 257 Band think about that.

    Oh well, he's a politician, and as such he's not used to dealing with that radical concept the rest of us know as the truth.....

    Jeff
     
  13. bumm

    bumm Member

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    >The DC population can say and do what they will as
    > long as it does not interfere with the operation
    > of the Federal Government.

    Cripes, ANY totalitarian dictatorship would allow that...
    Marty
     
  14. Deavis

    Deavis Member

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    I'm sorry, but I can't see what that has to do with forming a militia. That law deals with drill or parade in public with firearms. It does not mention anything else past that such as forming a unit for drilling or parading on private property. That is a law against drilling or parading in public places with firearms and punishes those who formed the unit or participated in it during said parading and drilling in public with firearms. Don't form a militia and parade in public with firearms and you won't break that law.

    I'm sure there is another law, but the one you quote doesn't seem to be the one you want. Sorry.
     
  15. Jeff White

    Jeff White Moderator Staff Member

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    I wouldn't bet my freedom that drill doesn't mean more the "close order drill" that you seem to think it means. Drill can mean other types of training besides "Right shoulder, Arms, Order, Arms....As a matter of fact, we used to train out of a manual of battle drills when I was in the Army...

    Jeff
     
  16. hugh damright

    hugh damright Member

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    On the other hand, DC residents are citizens of the US, and, regardless of the Second Amendment, there are certain privileges and immunities which are associated with US Citizenship. So it seems to become a question of whether the right to keep a loaded gun in the home, and the right to own a handgun, should be moved under the umbrella of US Citizenship, and that question seems to apply within DC.

    It seems to be more of a 14th "Amendment" question ... although the 14th says that no State shall infringe, isn't the intent that no government, federal/state/local, can deny these immunities and privileges? It doesn't seem to make sense that fundamental rights associated with US Citizenship could be infringed by the US government and DC but not by the States.

    For example, as US Citizens, we have the right to move to DC and buy property there and live there. DC could not pass laws against us moving there, or against us buying property. Before the 14th "Amendment", such laws existed ... for instance, Illinois declared that no blacks could move there ... but after the 14th, with its US Citizenship, and its associated right to own property, blacks can move anywhere in the US they fancy, as can we all. So the question becomes, as US Citizens, can we move to anywhere in the US and buy property and live there and keep loaded guns in our homes there and own handguns there? Or is the umbrella of US Citizenship too small to cover things like trigger lock laws and handgun bans?
     
  17. Baba Louie

    Baba Louie Member

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    Probably thinking that the phrase "A well regulated militia, being necessary for a free state"... is the main thrust of the 2nd. We've all heard that argument.

    Probably not much, but then again are they not part of the US Armed Forces stationed in and around the DC area and not "citizen-soldiers" called to duty from their farms and jobs to come to the aid of their "free state"? (rhetorical question based on semantical nuance)

    Jeff, one thing I did not mention was his education (if that's germaine). His BS is from Cornell, his Masters from UC Berkeley, even tho he is a Civil/Struc engineer (most of whom I've dealt with are pretty conservative or apolitical number crunching geeks who seem to enjoy the "physics" of the shooting sports) he did begin his political involvement while in graduate school.

    His final comments to me centered on the importance of electing HRC due to the upcoming openings on the Supreme Court... her lasting legacy when coupled with our 42nd Pres appointments (Ginsburg & Breyer).

    Just when you think you know someone you work with... Anyway, I look forward to seeing what DC/Heller brings forth in the next few weeks and/or months.
     
  18. jpk1md

    jpk1md Member

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    S. 397 [109th]: Protection of Lawful Commerce in Arms Act

    Folks, second posting because folks are still argueing about stuff that is already clarified in law....

    S. 397 [109th]: Protection of Lawful Commerce in Arms Act
    Folks due to S. 397 [109th]: Protection of Lawful Commerce in Arms Act which passed both houses and was signed into law by Bush 10/2005 that we don't have to worry too much that the 2A conveys an Individual Right NOT a Collective Right as per section 2,a,2 below.

    (2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

    http://www.govtrack.us/congress/bill.xpd?bill=s109-397

    BTW this was signed into law in Oct of 2005.
     
  19. hugh damright

    hugh damright Member

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  20. Deavis

    Deavis Member

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    I won't disagree with you but again, the law you quoted said in public. That is the key point I wanted to make. Other states have more restrictive laws. Illinois (IIRC) has almost the same wording except that it includes text along the lines of "forming, or drilling and parading..." rather than just the drilling and parading. I think you covered that one earlier though.
     
  21. Jeff White

    Jeff White Moderator Staff Member

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    Deavis,
    Read it again. It says:

    Note the word or. It doesn't say and, it says or. And I do believe that if a prosecutor wanted to push it, it wouldn't matter if you were drilling (training) in public or not.

    Again note the use of or. That means that any of those actions are components of the violation. Not all of them together. The in public part is a separate circumstance from participating in the formation and drilling. Participation in the formation of an unapproved military organization, drilling (public or private, it doesn't matter), and parading in public are all violtions of this law.

    Jeff
     
  22. glummer

    glummer Member

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    Jeff
    Seems to me this is ambiguous.

    It could mean either of these:
    for drill in public with firearms,
    or
    for parade in public with firearms

    Alternatively:
    for drill
    or
    for parade in public with firearms

    My reading, based on the lack of a comma after "drill", is that the first meaning is the clearest, and most logical – implying ONLY public jurisdiction.
    The second meaning would outlaw any sort of drill, even if no weapons were involved at all, which seems a very unlikely thing to legislate against.
     
  23. glummer

    glummer Member

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    furthermore

    Jeff
    You’re overlooking the “such” modifier. It means not all military organizations, drills, or parades, but only some specified ones.
    The only specification made is “public with firearms.”
    So public without arms is legal.
    And private is legal either way.
     
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