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DC gun ban case heads to Supreme Court
Posted by: McQ on Wednesday, September 05, 2007

The court case involving the DC ban on handguns is headed to the Supreme Court:
The District argues in its petition that its law — one of the strictest in the nation — should be upheld regardless of whether the court sides with the individualist or collective legal theory.

"It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun," states the petition, filed by D.C. Attorney General Linda Singer. It adds: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."
Good grief. "It is eminently reasonable to permit ..."? I'm sorry but a right isn't "permission" and the 2nd Amendment guarantees the 'right' to keep and bear arms. The whole point of this argument is that DC has no right to decide what is 'reasonable' or what what it will "permit" with regards to a right guaranteed Constitutionally. And that is essentially what the lower courts have found.

Then we get this bit of muddled thinking:
"Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."
Fine sentiment but a faulty premise. The premise is that outlawing handguns will stop it's citizens from dying. That, given the murder stats in that town, is patently untrue (since all violent crime is not committed with handguns). OTOH, the argument can be made, given stats from right to carry states, that the situation might actually be helped if criminals were faced with the possibility of an armed 'victim'.

When, in fact, the criminal is assured by the law that only he will be armed, the resulting violence is to be expected.

And DC's answer?
District lawyers argue that the ability to own shotguns and rifles satisfied the desire of the law's challengers for a means of self-protection. The appeals court found that argument "frivolous.
As do I. Try wielding a shotgun or rifle in a restricted space and see who enjoys the advantage - the criminal with a handgun who ignored the law or the law abiding citizen who obeyed it (and especially if that person is a woman)? The fact remains that citizens have the right to choose (where have we heard that before?) the best and most efficient means for their self-defense and the city has restricted that right based on frivolous, faulty and frankly unconstitutional grounds.

To be clear, here's what the court, to this point, has found to date:
Essentially, the appellants claim a right to possess what they describe as "functional firearms", by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.
I, of course, would further challenge the city's ability to restrict carrying it outside the home and to resist registration. But in this case, it is probably more important to settle the right of possession first.

In that regard, I hope this is finally affirmed:
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
That is the crux of the matter and one which will help to finally settle the fact that the 2nd Amendment is the acknowledgment of the preexisting inherent right to self-defense which government, at any level, has no right to abrogate or restrict. I think it would also be an important step toward the removal of handgun restrictions elsewhere.
 
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McQ writes:
That is the crux of the matter and one which will help to finally settle the fact that the 2nd Amendment is the acknowledgment of the preexisting inherent right to self-defense which government, at any level, has no right to abrogate or restrict.
Maybe.

I’ve said for a long time that rather than let the argument get bogged down exclusively in the 2nd Amendment with its ambiguous aspects (I assume interested parties know what I’m referring to) that we should go right to the "preexisting inherent right to self-defense" and mount a Ninth Amendment case as well.

The one thing I don’t like about the DC case is that it’s not about carrying a handgun outside the home, just about having one at all, specifically for defense at home.

It allows the District to move along in the case with the illusion that self-defense ends when you exit your front door, when in fact the need for it radically increases.

And the handgun is the status quo instrument of self-defense, so it is the key to exercising the right if and when the right is required to be exercised.

Another argument that can be made in this case is that guns are necessary to reduce crime in the District, not that I would want to see that lead to confusion over the importance of the basic individual right.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
Guns kill people, killing people is wrong, ergo guns are wrong...QED Is this so difficult for you mouthing-breathing, wingnut, Gun-crazy Godbags to grasp?

Or as one great American recently said:
I don’t believe that any gun should be in the hand of a thinking, feeling, breathing human being. Americans are by nature filled with rage-slash-fear.

I don’t think it could be more eloquently said.
 
Written By: Joe
URL: http://
What part about the right of the people to keep and bear arms shall not be infringed do these clowns not understand? That’s as clear and concise language as you can get!!!

 
Written By: McLovin
URL: http://
"To you."

(Henke)
 
Written By: Billy Beck
URL: http://www.two—four.net/weblog.php
What part about the right of the people to keep and bear arms shall not be infringed do these clowns not understand? That’s as clear and concise language as you can get!!!
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So how does the Federal Government get by with the Espionage Act, McLovin? Because the courts and the populcae, generally, support limits on the right of speech....and given that the First Amendment says, "no law" and yet we have laws on the subject of speech I guess it follows that the Second Amendment is no more absolute. You may not like that, but it is also indisputable.

 
Written By: Joe
URL: http://
McLovin writes:
What part about the right of the people to keep and bear arms shall not be infringed do these clowns not understand? That’s as clear and concise language as you can get!!!
But the clowns mount very sophisticated and self-confident arguments that dispute the clarity of the language, and in fact insist that it says nothing about an individual right to keep and bear, even though the right as stated in the 2nd Amendment runs to the people, not the militia.

That’s why I think a second front needs to be opened that goes to the underlying right, as a way of butressing Amendment Two.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
Joe,

The same way they get away with everything, we let them!
 
Written By: McLovin
URL: http://
Joe writes:
I guess it follows that the Second Amendment is no more absolute [than the First Amendment].
I don’t think that anyone claims that either of these amendments is absolute. The problem is that those who oppose guns are claiming that the 2nd Amendment does not, by its language, protect an individual right to keep and bear.

The context for that is that there isn’t much federal adjudication of the Second Amendment and what there is has largely left its application unclear and it has never been made subject to the incorporation doctrine, wherein the federal judiciary applies the Bill of Rights to the states.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
I am not a fan of gun control, but when someone makes a statement
What part about the right of the people to keep and bear arms shall not be infringed do these clowns not understand? That’s as clear and concise language as you can get!!!
I simply have to point out it ain’t that clear cut... and for the record it states:
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.

Please Mclovin your quote is the last bit, equally important, to many critics of the NRA is:
A well regulated militia, being necessary to the security of a free state,...
Making it an issue less of an individual right and more an issue of security. It is not a position I accept, but it IS a legitimate one and your quote does not do justice to the language of the amendment or the nature of the debate.

 
Written By: Joe
URL: http://
but it IS a legitimate one
No it is not. "A well regulated militia" does not now mean what they purport it to mean, and it never has.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com/
The 2nd Amendmment is whatever today’s court decides it is, and the government will do to us or prohibit us anything we let them prohibit.

The positive side of this argument is the defacto nationwide possession of firearms that will not be surrendered regardless of how any court rules.

It will be nice, if meaningless, if they uphold the 2nd Amendment as an individual right, even as a pre-existing right, but it will still be another ruling away being reversed.

I’m armed, and I’ll stay that way, regardless of the laws. It’s a convenience that I won’t be arrested, but not a necessity to remain armed.

I am not convinced that the 2nd was intended by the writers as pre-existing right, or that it was even intended as an individual right, but I don’t care, I’ll treat it as such.

Cap
 
Written By: Captin Sarcastic
URL: http://
Egads Joe, sometimes I forget that you’re the resident "King of All That Is Sarcastic and Thus Blastedly Friggin’ Funny". For about half a sec, this "mouth-breathing(sic), wingnut, Gun-crazy Godbag" (and proud of it), was starting to get irritated. But then I realized what this was and who said it, and I put my gun back in my truck.

By the way, which liberal moron were you quoting? A dollar to a dime, it was an actor/actress...
 
Written By: Warrior Needs Food Badly
URL: http://
but it IS a legitimate one
No it is not. "A well regulated militia" does not now mean what they purport it to mean, and it never has.
Certainly it’s a "legitimate" point and debating position. Legitimate is NOT the same as correct. Separate but equal is a legitimate position and a constitutionally accepted one, as well, but it is not now considered the "correct" one. So yes it IS legitimate to focus the argument on the "National Security" aspect of the 2nd Amendment, the Founders included it, didn’t they?

Personally I think the "militia" sucks as a national security force and it was only included out of a certain Founder "Political Correctness", because certainly the Founders knew how worthless a militia had been in the recent war with Britain. I think their real focus was an individual right with a focus on LIBERTY, or Freedom, freedom from attack, by criminals-it’s main utility now, and freedom from state oppression, then.
But then I realized what this was and who said it, and I put my gun back in my truck. By the way, which liberal moron were you quoting? A dollar to a dime, it was an actor/actress...
Ok, Thank the Lord:
1) You saw the joke; and
2) We don’t post our addresses, for fear that you hadn’t caught the joke. The quote is from Jodi Foster, in re; her new movie The Brave One.
 
Written By: Joe
URL: http://
Joe,

Martin is correct the right runs to the people and not the militia. It doesn’t
say only people who are part of a militia can keep and bear arms. This is the same sort of tortured reasoning behind decisions like kelo and others. These judges are
taking very plain language and finding ambiguity where there is none.
 
Written By: McLovin
URL: http://
Martin is correct the right runs to the people and not the militia
I agree.
taking very plain language and finding ambiguity where there is none.

No they are not. They are asking the question, "Why are ’militia’ and ’security of a free state’ included within the text?" And it’s a valid question, from which one can infer, INCORECTLY, that the amendment deals with isseus of security and the militia. Had they merely meant to affirm your right to Keep and Bear, would they not have simply said, "Congress shall pass no law impairing the right of the people to keep and bear arms." They did not. We don’t know why they did not, as there is no record of the debate(s), if any concerning the 2nd Amendment. My point still is that it is NOT "obvious" what the Amendment means and that the courts are willfully or stupidly ignoring some so-called plain meaning of it.
 
Written By: Joe
URL: http://
And even if you are granted to have an INDIVIDUAL right to Keep and Bear, can any limits be placed upon that right? Now Billy Beck says, "No" IIRC. I say, "Yes" first simply based upon Reasonable Time, Place and Manner Limits have been accepted for the much more important Right of Speech, and for reasons of practicality, e.g. does a neighborhood association REALLY need an M40a1 106mm RCLR?

Generally speaking folks who tell you that the Constitution has an OBVIOUS meaning, whether its for health care or for fire arms, are generally fooling themselves or you.
 
Written By: Joe
URL: http://
Assume the right only applies to a militia.

Far as I can tell every male (I can’t remember if women register...) joined a well-regulated militia when they turned 18. They had to sign up, and keep the state informed of their location. Problem solved.
 
Written By: Ryan
URL: http://
Far as I can tell every male (I can’t remember if women register...) joined a well-regulated militia when they turned 18. They had to sign up, and keep the state informed of their location. Problem solved.
No Womyn were discriminated against by the phallocracy and denied their right to protect themselves having to rely upon the p*nises to do it for them....Sorry just channeling NOW.

Problem not wholly solved, what about the idiots and infirm? And do I really need to keep the state apprised of my whereabouts?

One could argue that currently the militia is ALL citizens, in good standing...It is a concept that needs to be fleshed out more, though.
 
Written By: Joe
URL: http://
because certainly the Founders knew how worthless a militia had been in the recent war with Britain
Joe, you’re full of sh!t. The militia saved our bacon as often as they didn’t, and were certainly the only reason Cornwallis got run out of the deep South to get headed for Yorktown. Try reading some history before you hit your kbd/open your big fat mouth, ’kay.

You also wrote:
They are asking the question, "Why are ’militia’ and ’security of a free state’ included within the text?" And it’s a valid question, from which one can infer, INCORECTLY, that the amendment deals with issues of security and the militia.
It’s not a valid question when the answer is immediately self-evident from a modicum of study. They have a right to be willfully ignorant, but must expect nothing but scorn and derision in consequence.

When a three year old asks why the sky is blue, that’s a legitimate question coming from someone operating at that level. For someone who purports to be a meteorologist to ask it is not, and for the people trying to affect legislation, that level of willful stupidity on this topic voids any pretense to validity or legitimacy on their part.

In defending that ignorance as "valid" or "legitimate", you should expect the same dismissive treatment.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com/
"...does a neighborhood association REALLY need an M40a1 106mm RCLR?
To hell with the "neighborhood association": I "need" one because I think they’re cool as hell, and my assertion is no more arbitrary than the assertion that I don’t "need" one.

Get it?

It’s not about "need":

Martin —

I would open that "second front" on the principle (again, and it’s too bad if I’m boring you people) private property.

In fact, that is and always has been my first line of defense. I’ve said it for many years: if this government finally gets around to just erasing the Second Amendment, then nobody fighting on that line is going to have a leg to stand on. In fact, they have never stood on principle. It’s always been about the crumbs thrown to "Rights" in the "Bill".
 
Written By: Billy Beck
URL: http://www.two—four.net/weblog.php
"Valid" and/or "legitimate" depends on one’s point of view, though each side will argue that plain English supports their position.

I have read arguments on both sides, both with historical foundations, both drawing from pre-constitutional sources such as the Federalist and anti-Federalist writings, and I have come to the conclusion that it doesn’t matter. No matter what anyone meant when they wrote it, it means what we decide it means, and beyond that, I don’t care what we decide it means, because if we do not decide it means what I would like it to mean, I am not going to fully comply with the interpretation anyway.

As I said, I am not convinced that it was ever intended as an individual right, so I will acquiesce to the laws prohibiting military weaponry in my possesion (unless I change my mind), and if guns are outlawed I won’t be whipping out my pistol in front of police officers, but by the same token, if someone were to try and physically relieve me of my means of defense.... well that would be messy. Fortunately, there are tens of millions of people with guns, and there is just no way, logistically, politically, or physically, to actually confiscate these weapons.

THAT IS WHAT PROTECTS GUN RIGHTS, period!

Today’s interpretation of the 2nd is irrelevant in protecting gun rights, as is tomorrow’s reversal.

But keep arguing as if the words mean exactly what y’all think they mean and could not possibly mean anything else.

Cap

 
Written By: Captin Sarcastic
URL: http://
No matter what anyone meant when they wrote it, it means what we decide it means
If you mean deciding what it means by any other means than the supermajority required to pass and amendment, you and your opinions can drop dead. You may well agree with that requirement, it isn’t clear.

As you say, for enough people—numbers whose actions will matter more than any countervailing "opinions"—there will be no compromise on the basic issue.

Should the SCOTUS decide contrary to the standard model, or say they affirm and in fact vitiate it, the Supremes have no idea of the lead wall that decision will run into.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://tomdperkins.blogspot.com/
It doesn’t say; "...the right of the MILITIA to keep and bear arms..." and it doesn’t say, "...the right of the STATES to have a MILITIA who can keep and bear arms...".

Stop pulling crap outta yer asses.

I DO notice that the same people that want to ban guns are the same ones that CODDLE criminals at every turn, making up endless streams of lame brained excuses.
 
Written By: Sharpshooter
URL: http://
My favorite part is this one:
"Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

I’ve never heard anyone say that the 2nd Amendment requires the District to stand by while its citizens die. It only says what the government can’t infringe on.
 
Written By: tkc
URL: http://
If you mean deciding what it means by any other means than the supermajority required to pass and amendment, you and your opinions can drop dead.


I mean that if the Supreme Court decides that it is NOT an individual right, and that any governmental body, including the federal government can ban, confiscate, regulate, and/or register guns, then that will be the law of the law of the land, it’s how our system, like it or not, works.
Should the SCOTUS decide contrary to the standard model, or say they affirm and in fact vitiate it, the Supremes have no idea of the lead wall that decision will run into.
EXACTLY!!!

It’s not the words in the Constitution that protect your right to own a gun, it is the fact that you DO own a gun that protects your right to own a gun, or, more accurately, the fact that tens of millions of people own guns. If it were just you, you’d have long been disarmed, whether it was a right or not.

This is why I argue that the in the grand scheme, the interpretation and debate of the 2nd is irrelevant.



 
Written By: Captin Sarcastic
URL: http://
I think the "collectivist rights" theory is frivolous nonsense. Yes, the Second Amendment states that a well-regulated militia is necessary to the security of a free state, but it also says that the right to bear arms runs to the people, not to the militia. As Eugene Volokh has pointed out, justification clauses are uncommon today, but were not at all uncommon in the 18th Century, and they never operated to negate the basic meaning of what followed.

I believe it is possible for government to impose some restrictions on the right to bear arms without "infringing" (read: destroying) it. Banning private possession of nukes is a no-brainer, and banning development of undetectable ("plastic") firearms seems pretty reasonable as well. I can even conceive of a theory, horribly wrong IMO but not entirely frivolous, under which a law banning small arms but allowing long ones could be considered a semi-reasonable restriction falling short of an infringement. However, DC blew that argument by also passing a "safe" storage ban (also the subject of Parker before, if not Heller now) that makes it all but impossible to possess any kind of firearm for self-defense.
 
Written By: Xrlq
URL: http://xrlq.com/
I’m going to put my virtual arm around the Cap’n here.

I’m armed to the teeth. With plenty of firearms that have legally found their way into my ownership that have stayed clear of government knowledge. You will not take them from me, period. I will use my guns to prevent you from taking them. And so will millions of others.

I disagree with Xrlq though that small arms are ban worthy (and yes I know you disagree, but I can’t even see it as a valid hypothetical) as they protect much more than they are used to harm. 270 Million firearms in this country. 99.7% of them never are used in a crime. Banning *anything* is useless at those numbers.
 
Written By: Robb Allen
URL: http://blog.robballen.com
Useless, certainly. The question is whether such a ban is just a bad idea, or whether it’s a severe enough restriction on the right to bear arms as to infringe it. I tend to think it does, but it’s not a slam dunk. "Infringe" was a much stronger word two centuries ago than most people assume it is today.
 
Written By: Xrlq
URL: http://xrlq.com/
I have even when my politics was more ’leftist’ always had a rather strict constitutionalist view of legal issues, which has always put me closer to the GOP on judicial questions. However, the idea of "pre-existing rights," while philosophicallly interesting, shouldn’t have any bearing on a case. The question has to focus on what the constitution says or doesn’t say. Moreover, pre-existing rights or not, the constitution can be amended (and no court can cite pre-existing rights to deny a constitutional amendment). Based on what the constitution says, I’d have to consider the DC ban unconstitutional.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
"Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.", therefore we will abridge any Constitutional right to prevent the death of our citizens. Isn’t that the logical conclusion of the quoted phrase? It’s wrong, of course. And the Jodie Foster quote. I will believe it’s not just promote the film verbiage when she stars in a film about third term abortions, whatever its storyline, and follows up with public statements that abortion is murder. Finally, the tide on defending oneself with legally carried handguns is flowing against the "We’ll all be safer when only criminals carry illegal weapons" argument. It is up to 40 states now. I certainly won’t be cowering behind any steel and laminated plywood chair waiting for the police to come save me. Criminals use handguns to facilitate their career choices. I accept the responsibility carrying a firearm demands, and choose not to behave like a criminal. Guns are catalysts in these equations; they change the speed of the equations, but are not the cause.
 
Written By: Kerry
URL: http://Smoothingplane.blogspot.com
Chatty Boris types:
However, the idea of "pre-existing rights," while philosophicallly interesting, shouldn’t have any bearing on a case. The question has to focus on what the constitution says or doesn’t say.
Have you ever actually read the Bill of Rights, Boris?

It doesn’t create rights; it protects pre-existing rights. And read the 9th Amendment while you’re at it. It addresses Hamilton’s concern that the enumeration of certain rights would imply that only those rights were protected.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/

 
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