Supreme Court to Hear DC Case

[gc70]

They seem to have shifted to the question of guns at home being legally operational rather than a real Second Amendment question.

What is a "real" Second Amendment question?

Is it about "any gun, any way, anywhere?" We would not win that case, either in the current Supreme Court or public opinion.

Or is it about the ability to protect yourself in your own home? That is a case that we can win, both in court and public opinion. With a clean, individual right decision from SCOTUS, the rest will follow.

 

[RealGun]

What is a "real" Second Amendment question?

Sigh! One that addresses "the people", "keep", bear", and "infringe" all in context. Infringement of a right is always the central question.

If able to legally keep a gun at home after a favorable ruling but not allowed to bear one for self defense, "infringement" has definitely not been relieved.

The Court is apparently seeking to deny the City's jurisdiction inside a person's home. That seems microscopic compared to the grander question.

 

[The Sheriff]

Guns and the Constitution
November 24,2007; Page A10
Wall Street Journal.
In recent decades, the Supreme Court has discovered any number of new rights not in the explicit text of the Constitution. Now it has the opportunity to validate a right that resides in plain sight -- "the right of the people to keep and bear arms" in the Second Amendment.

This week, the Supreme Court agreed to hear the case of District of Columbia v. Heller. In March, the Court of Appeals for the D.C. Circuit declared unconstitutional the District's near-total ban on handgun possession. That 2-1 ruling, written by Judge Laurence Silberman, found that when the Second Amendment spoke of the "right of the people," it meant the right of "individuals," and not some "collective right" held only by state governments or the National Guard.

That stirring conclusion was enough to prompt the D.C. government to declare Judge Silberman outside "the mainstream of American jurisprudence" in its petition to the Supreme Court. We've certainly come to an interesting legal place if asserting principles that appear nowhere in the Constitution is considered normal, but it's beyond the pale to interpret the words that are in the Constitution to mean what they say.

However, it is true that, despite our vitriolic policy fights over gun control, the Supreme Court has rarely ruled on the Second Amendment. The Court last spoke in detail in 1939, in U.S. v. Miller, involving a bootlegger who claimed the right to transport an unregistered sawed-off shotgun across state lines. That opinion was sufficiently complicated that both sides now claim it as a precedent.

The dispute arises from the first four words of the Second Amendment, the full text of which 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." If the first two clauses were omitted, there would be no room for ambiguity. But part of the legal controversy has centered around what a "well regulated militia" means.

Judge Silberman's opinion argued, with convincing historical evidence, that the "militia" the Framers had in mind was not the National Guard of the present, but referred to all able-bodied male citizens who might be called upon to defend their country. The notion that the average American urbanite might today go to his gun locker, grab his rifle and sidearm and rush, Minuteman-like, to his nation's defense might seem quaint. But at stake is whether the "militia" of the Second Amendment is some small, discreet group of people acting under government control, or all of us.

The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort -- an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort.

As a practical matter on the Court, the outcome in D.C. v. Heller might well be decided by one man: Anthony Kennedy, the most protean of Justices. However, in recent years he has also been one of the most aggressive Justices in asserting any number of other rights to justify his opinions on various social issues. It would seriously harm the Court's credibility if Justice Kennedy and the Court's liberal wing now turned around and declared the right "to keep and bear arms" a dead letter because it didn't comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard's Laurence Tribe has come around to an "individual rights" understanding of the Second Amendment.

By the way, a victory for gun rights in Heller would not ban all gun regulation, any more than the Court's support for the First Amendment bars every restraint on free speech. The Supreme Court has allowed limits on speech inciting violence or disrupting civil order. In the same way, a judgment that the Second Amendment is an individual right could allow reasonable limits on gun use, such as to protect public safety.

Here's hoping the Justices will put aside today's gun control passions and look to the plain language of the Bill of Rights for instruction in this case, as Judge Silberman had the courage to do.

 

[CleverNickname]

I read this as saying the Court will address "keeping" arms but not "bearing" them. They seem to have shifted to the question of guns at home being legally operational rather than a real Second Amendment question.

Neither DC nor Heller asked the Court to address "bearing" arms, so I would have been surprised if the SCOTUS had changed the question to address it.

 

[Hypnogator]

Neither DC nor Heller asked the Court to address "bearing" arms, so I would have been surprised if the SCOTUS had changed the question to address it.

Exactly. Let's win the individual right case now. Incorporation, "bearing" and other questions will be ruled on in the future, hopefully with Heller as precedent.

 

[K-Romulus]

The "bearing" question will be tackled when the USSC analyzes the DC law forbidding the carrying of loaded pistols within the home. The analysis of that question may have some relevance to "bearing" outside the home. We shall see . . .

 

[Sam Adams]

Neither DC nor Heller asked the Court to address "bearing" arms, so I would have been surprised if the SCOTUS had changed the question to address it.

I agree. Here's my take on the limited scope of this case:

We've lost our ability to freely exercise many of our rights one-by-one on the federal level. First it was the unfettered right to buy anything we wanted to without paying a tax, getting permission, being registered, etc. That was the 1934 National Firearms Act, where we lost the ability to buy full autos and sawed-offs without various infringements. In 1968, we lost the ability to buy more conventional firearms (handguns, rifles and shotguns) directly from manufacturers and wholesalers, having to since go through dealers (or become one ourselves, which ability is also under attack). Then came the '86 FOPA, which eviscerated our ability to obtain full autos even under the restricted conditions set forth in 1934 - new supply was cut off, leading to 21+ year-old M16s selling for upwards of $10,000.00 when a brand-new one can be obtained for well under $1,000.00 (if you are a governmental agency or a Class 3 dealer getting a "dealer sample"). Then Lautenberg, Brady and various Executive Orders have further cut back on imports and on the number of people who can obtain firearms or parts for firearms.

The point is that we lost it one salami slice at a time, and that's the only way we're going to get it back. Study the civil rights movement (and the RKBA IS, after all, part of our civil rights) - you didn't go from Jim Crow laws to no discrimination permissible by government or private parties, let alone affirmative action, in one day and with one decision. It took literally decades - decades too long, IMHO, but that is the practical reality of our political and judicial system. NOTHING turns on a dime.

The Heller case, if it turns our right for us, will rule that the RKA (note the lack of a "B") is an individual right that is utterly independent of membership in a state militia, or even of the mere existence of a state militia. That is Step Number 1. Step Number 2 will build on Step Number 1, and will likely be a challenge to NYC's or Chicago's practical bans on handguns. As an alternative (or even simultaneously), someone is going to challenge the '86 full auto ban. That ban is effectively identical to the DC handgun ban, and the DC Circuit decision was adament that such blanket bans on obtaining and owning an entire class of arms is verboten under the 2nd Amendment. I, personally, am optimistic that the full auto ban will be overturned (assuming, of course, that the RKA is ruled to be an individual right), based on the [admittedly faulty and somewhat specious] reasoning of the Miller decision (which, despite its faults is precedent), and also on the basis that the ownership and the purchase and sale of such arms (though older ones only) is today permitted in most states.

We're going to win most of what we want - eventually. We all have to have patience, but as long as we get our foot in the door with a win in Heller for the RKA, then we can build on that. We'll probably build on the "B" part, as well as broaden the RKA to the states and localities.

 

[ConstitutionCowboy]

Tell me: How does one parse "keep" and "bear"? The right is enumerated as a single right encompassing both keep and bear. One is practically useless without the other. What good is it to keep and arm you cannot bring to bear, and what good is it to be able to bear something you can't have?

The NFA(1934) infringed on both halves of the right. If you can't afford the item because of the tax, you can't bear that item for the same reason.

Woody

"Peace, Prosperity, and Freedom: Magic elixirs of life brought to you courtesy of the Constitution for the United States of America." B.E.Wood

 

[legaleagle_45]

Tell me: How does one parse "keep" and "bear"?

It can be done relatively easily. The prime example would be a "restricted" swiss model, where militia weapons are kept at home, but ammo for the militia weapon is verbotten. IIRC, there was such a proposal out of Switzerland, but don't know if it got anywhere.

The key is to employ a strictly military connotation to "bear" and then apply a very restrictive analysis to "keep".

 

[SDC]

It can be done relatively easily. The prime example would be a "restricted" swiss model, where militia weapons are kept at home, but ammo for the militia weapon is verbotten. IIRC, there was such a proposal out of Switzerland, but don't know if it got anywhere.

Kind of-sort of. The situation is Switzerland is (or at least WAS, the last time I asked) was that every member of the militia took their STG 90 home with them, along with a sealed 500-round plastic "battle pack" of 5.56mm ammunition to go with it, and that SEALED pack of ammunition had to be present and accounted for during an inspection. (That ammunition is meant to last them until they can get to their assigned units, where ammunition would be available.) This ignores the fact that 5.56mm ammo is freely available through NON-military sources in Switzerland, AND is somewhat optimistic in assuming that someone who's contemplating going on a murder spree is going to somehow be stopped by the thought that "Gee, I WAS going to kill 20 or 30 people out of pique, but if I open my issue ammo to do so, I might get into trouble at the next inspection."

 

[legaleagle_45]

Kind of-sort of.

Agreed, it would only really effect the law abidding.... sorta like a law requiring your personal weapons to be unloaded and disassembled... but iffin I was an anti, that would necessarily be one of my arguments, because I think it is the best that they got... wrong, but still their best bet.

 

[USAFNoDAk]

I reject the collectivist theory for two very clear reasons. 1. the militia is comprised of "the people", which means the citizens. 2. With regards to equal protection under the law, can one citizen have more rights than another? No! Now the argument will undoubtedly unfold as to how come the soldiers in the Army and Marines can have hand grenades. It's a good question. No doubt about it. However, when one is being employed in service to the government, one is not necessarily one of "the people" at that point in time. Military members do not have all of their rights to free political speech that "the people" do. Military members on military bases do not have their civil right to "keep and bear" their private, personal, arms protected. They can keep and bear arms off base, however.

When the Bill of Rights spells out a "right of the people", the equal protection clause is in play. Thus, blacks who live in inner cities, and are not convicted felons, should not be denied their right to keep and bear arms just because there is a high incidence of blacks committing crimes in those inner city neighborhoods. To do so would be to discriminate against blacks. To say that the only "people" who can keep and bear arms are those who are part of the militia, is to discriminate against "the people" who are not part of the militia. In my opinion, this too would be a violation of "equal protection under the law". I'm no lawyer, however.

 

[ConstitutionCowboy]

legaleagle

I do believe the Swiss model would conflict with the Second Amendment.

My question was actually more of as statement of fact - a rhetorical question, as it were - that since the right is described as being that of a matter of keeping AND bearing, that I don't see the Court - if it is honest with itself - trying to separate the issue into two separate rights, and that anything it might rule in the way of keeping will also have as much - er - bearing on bear.

Woody

"It is up to We the People to decide if and when we shall revolt. It is not up to those in government to prevent it. It is up to those in government to see that revolution never becomes necessary." B.E.Wood

 

[legaleagle_45]

I do believe the Swiss model would conflict with the Second Amendment.

So do I.

that since the right is described as being that of a matter of keeping AND bearing, that I don't see the Court - if it is honest with itself - trying to separate the issue into two separate rights

I don't see it as a problem so long as they get both portions right.

From a strategic standpoint the antis would like to see the court focus on a unitary right with the emphasis being on "bear". They have no real good explanation for keep and therefore flail around trying to closely associate it with bear and not making too much sense in the process.

 

[ConstitutionCowboy]

From a strategic standpoint the antis would like to see the court focus on a unitary right with the emphasis being on "bear". They have no real good explanation for keep and therefore flail around trying to closely associate it with bear and not making too much sense in the process.

'Flailing' IS their strong point. 'Not making too much sense' is a close second. My prayers are for those with the ears who will hear the case to have enough sense to see the virtues of the Second Amendment ... and it's force of law, too.

Woody

Thomas Jefferson worried that the Courts would overstep their authority and instead of interpreting the law would begin making law....an oligarchy...the rule of few over many.

 

[alan]

I guess it all boils down to more or less the following.

Our side has been looking for the USSC to rule on The Second Amendment for quite a few years now. Parker or Heller, as it is now known seems as if it were a "good" case, an honest, law abiding type being screwed around with, no felons looking for a way out of a proper charge.

I personally believe that the anti's are scared out of their pants, panties or whatever, for with the present court, it LOOKS LIKE our side might be in better shape than their's, but that is only my quess, hopeful guess. About all that we can do now is sort of hope for the best, waiting till arguments are heard, March has been forcast as a likely date for that, with a ruling expected in June. We shall see.