D.C. Circuit Upholds Second Amendment

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gc70 said:
Interesting inference. National Parks?

gc70, the open (or concealed) carrying of a firearm outside the home was not addressed by the Court.

The NPS is already under fire from the Interior Dept. for it's actions (or lack thereof) on this issue. This ruling may provide some impetus for Sec. Kempthorne to reverse that decision, should the ruling prevail.

WildAlaska said:
So Al, is it time for a thread on what that means?

Why? We could debate this until the next Blue Moon, as we have done in the past. Without a definitive ruling by the SCOTUS, we are still whistling in the dark.

If we are to believe that this ruling will be upheld, we have very little guidance from the Court as to what is an infringement and what isn't. The Court was fairly careful in dealing with the scope of the right. That is to say, they didn't go very far from the evaluation that it was an individual and protected right.

I'm only on my second reading of the decision, so I can't (and won't) expound upon any such "hints" that are contained therein... But feel free to start such a thread. I won't participate until I've digested the entire ruling.
 
If we are to believe that this ruling will be upheld, we have very little guidance from the Court as to what is an infringement and what isn't.

Couldnt we say that infringement, like so many other Bill of Rights cases, is a political decision rather than a constituional one now

WildpokinandproddinAlaska
 
Re: DC

They're all political, though the best jurists try to rise above this. Yet, time, place, cultural shifts etc., are always and indirect presence.
 
Even if I'm wrong and it was a law that was put in place by a popular vote, the Courts can still strike it for being unconstitutional. Popular vote does not override rights guaranteed by said constiutution.
Antipitas
You missed my point. Of course the courts can strike down popular vote laws if they are unconstitutional. I was just pointing out the hypocrisy of some people who cheer this decision but want to shout about "activist judges" (because they heard good ol' boy Bush use that term) when something they agree with is struck down.

With gay marriage when it is declared unconstitutional to ban it they say "then let's change the constitution" but how would they react if most people got together and said "if gun control is unconstitutional, then lets amend the constitution"?
 
Egregiously misinformed

Haven't all of the Amendments (that are currently valid) given or affirmed rights, rather then taking them away?

NO!
The very question indicates a severe misunderstanding of rights.

NOTHING in the Constitution takes away a citizen's rights. Rather, the Constitution expressly acknowledges that rights come from the Creator, who endows men with them.

The Bill of Rights is merely the listing of specific rights, with the further acknowledgement that it is not a comprehensive listing of them. Read the IXth and Xth Amendments.

The purpose of the BOR was to place an express limit on the Federal government to calm and appease the anti-Federalist (Jeffersonian) elements in order to get the Constitution ratified.

This is high school civics, people.
 
Rather, the Constitution expressly acknowledges that rights come from the Creator, who endows men with them.
Actually, it's the Declaration of Independence that expressly acknowledges the Creator. The Constitution makes no such mention (at least my three copies of it don't).
 
The future of gun rights in the USA will probably come down the how the Supreme Court of the United States (SCOTUS) defines the word/intent of MILITIA.

The lower court's recent ruling striking down gun laws in Washington D.C. does represent an opportunity and a potential threat; a redefining of the Second Amendment.

---------------------​

MILITIA
From Wikipedia, the free encyclopedia, amended

The concept of the militia in the United States of America is a complex one. The term militia can mean any number of groups within the United States.

Constitutional, or unorganized miltia, which consist of every able-bodied man ages 18-45 who can be called into active service through congressional power and who, according to various militia acts (Militia acts of 1792, 1852, 1903) are encouraged to train in marksmenship with arms provided by themselves in order to prepare them for military service. (The Civilian Marksmanship Program, created by Congressional power in 1903 at the request of President Theodore Roosevelt, is the only organization in which approved military rifles may be purchased without going through a Federal Firearms Dealer).
Select-militia, which originated in early State select-militia forces and the constitutional militia, consist of State and Federal militia forces, like the National Guard, which were created by statutory law rather than constitutional power.
Private-militia forces, which are made up of unorganized militiamen who have, on their own authority, organized into para-military organizations based on their own interpretation of the concept of the militia. These militia claim belief that private militia are supported by the principles of the common law of England (as found in Blackstone's Commentaries) and the intentions of the Founding Fathers of the United States (as found in the Annals of Congress and various publications of the period).
The English term "militia" is derived from Latin roots:

miles /MEE-lace/ : a fighter or warrior
-itia /EE-tee-ah/ : a state, quality, or condition
In its original sense, therefore, militia meant "the state, quality, or condition of being a fighter or warrior." It can be thought of as "the combattant condition", "the fighter frame of mind", "the militant mode", "the soldierly status", or "the warrior way".

In common usage, a "militia" is a body of private persons who have taken up arms to respond to a violent emergency. The act of bringing to bear arms contextually changes the status of the person, from peaceful citizen, to warrior citizen. The militia is the sum total of persons undergoing this change of state.

The early colonists of America considered the militia an important social structure, necessary to defend their colonies from Indian attacks. All able-bodied males were expected to be members of the local militia. During the French and Indian Wars the town militias formed a recruiting pool for the Provincial Forces. The legislature of the colony would authorize a certain force level for the season's campaign, based on that set recruitment quotas for each local militia. In theory, militia members could be drafted by lot if there were inadequate forces for the Provincial Regulars; however, the draft was rarely resorted to because provincial regulars were highly paid (more highly paid than their regular British Army counterparts) and rarely engaged in combat.

The delegates of the Constitutional Convention (the founding fathers/framers of the United States Constitution) under Article 1; section 8, paragraphs 15 and 16 of the federal constitution, granted Congress the power to "provide for organizing, arming, and disciplining (regulating/training) the Militia," as well as, and in distinction to, the power to raise an army and a navy. The US Congress is granted the power to use the militia of the United States for only three specific missions, as described in Article 1, section 8, paragraph 15: "To provide for the calling for of the militia to execute the laws of the Union, suppress insurrections, and repel invasions." The Second Amendment to the United States Constitution was intended to formalize this balance between the "well-regulated" unorganized militia and organized military forces. The Militia Act of 1792 clarified whom the militia consists of; " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act."

During Congressional debates, James Madison was among the strongest proponents for the creation of a militia in lieu of a standing army:

The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them.
Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.

The purpose of the militia, as envisioned by the framers of the Constitution of the United States, can be further demonstrated by the words of Representative Elbridge Gerry of Massachusetts (from 1 Annals of Congress at 750, 17 August 1789): What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty . . . Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

However, the importance of the miltia continued during the middle of the 1800s, as can be demonstrated in both the Militia Act of 1852 and the Morrill Act of 1862. The Morrill Act of July 2nd, 1862 provided federally aided land grants to colleges and universities. A condition of these grants included mandatory military training "in order to prepare well-educated men for leadership in the militia."
 
Correct

Actually, it's the Declaration of Independence that expressly acknowledges the Creator. The Constitution makes no such mention (at least my three copies of it don't).

You're right - good catch. ;)
 
Re: DC

Why did the NRA go against the case? (The link didn't work).

What was the practice, if anyone knows, of private citizens owning/carrying guns during the early years of the country? I assume it was widespread, but let me know if that is incorrect.

I ask, because if it was common and widespread, that itself is unmistakable evidence the "Fathers" did not write an Amendment that suddenly left it to local governments to ban firearms. If so, contemporaries would have well known private use of guns was not a right. They would not have had to reach across the past as we do to understand the Amendment and the minds of its writers. And, it would have happened in areas: restrictions on owning guns. As well, we would have had a history all along of control of firearms. Instead, I believe it only in the modern era that this became a legal phenomenon.
 
Important Points of Opinion

I waited until I had a chance to read the opinion in Parker v. District of Columbia (no. 04-7041) of offer a summary of the case's important points. Many of these have already been mentioned in various posts.

First and foremost is the Court's holding that the rights mentioned in the Second Amendment are individual rights and not collective rights (states' rights). Secondly, these rights existed before the adoption of the Second Amendment.
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.
p. 46

The Court interpreted the U.S. Supreme Court's opinion in Miller as turning on the issue of what the Second Amendment meant by "arms" rather than on the words "keep" and "bear." The Court found historical and contemporary support that handguns are used commonly for both military and civilian self-defense.
The District contends that modern handguns are not the sort of weapons covered by the Second Amendment. But the District’s claim runs afoul of Miller’s discussion of “Arms.” The Miller Court concluded that the defendants, who did not appear in the Supreme Court, provided no showing that shortbarreled (or sawed-off) shotguns—banned by federal statute—bore “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178. However, the Court also observed that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be “of the kind in common use at the time.” Id. at 179. There can be no question that most handguns (those in common use) fit that description then and now. See Emerson, 270 F.3d at 227 n.22 (assuming that a Beretta pistol passed the Miller test).
p. 50-51.

"That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols." p. 53. It then listed several examples of "reasonable regulation" such as prohibiting carrying arms while intoxicated, carrying into a polling place, and prohibiting carrying concealed weapons. The court indicated that simple registration laws are reasonable but those laws which effectively prohibit the keeping of functional and appropriate firearms would not. In this case, for instance, it was unreasonable for the law to require a firearm in one's home be kept disassembled or which required registration to carry a firearm from room to room inside one's home when hardly anyone qualified to register a firearm. However, this does not necessarily mean it is unconstitutional for a law to require a trigger lock or that the firearm be kept unloaded. The lawsuit did not challenge this part of the law and the court did not expressly decide the issue.

It is also important to note what was not decided. Since the District of Columbia is a federal entity and not a state, the Court did not have to decide whether the Second Amendment is incorporated through the Due Process Clause to protect individuals from states' laws. p. 13-14, n. 13.

The opinion represents a clear victory for gun rights advocates but it is not absolute. For example, the Court appears to accept registration as being a reasonable and lawful regulation of the right. As several have noted, the entire court can re-hear the case (en banc rehearing). While this is not done in typical cases, this is an atypical case and I would expect the District to ask for an en banc rehearing. I think there is a very good chance the motion for rehearing would be granted. I don't have a clue as to the possible outcome on rehearing.
 
The Supremes

May be hearing this one. Now we have to figure out what interpretation they will have of the second. I think New York Should be next, in order to lower the crime rate which is skyrocketing in every city that has gun bans. If a Mayor, Governor, or President does not enforce the Second Amendment [or any other] and law abiding citizens die because of it aren't they responsible? It's duty of any true American to uphold the "old piece of paper" that made this great country that certain people are trying to tear down.


A Republic, if you can KEEP it.
 
what it is called when it is something with which the right wing disagrees. Didn't the people vote in these laws by a majority vote.

Personally I think it is about time though and I hope this will make some people who love to yell about "activist judges" to shut up and start thinking before they run off at the mouth.

I think the judges are right to strike down this unjust law but I wish more people would remember that when something they personally agree with is declared unconstitutional.
I have to disagree. The 2A rights were already in place before the 2A was drafted. The court here was simply recognizing that fact and gave the Constitution an originalist interpretation. People are upset when judges refuse the original intent of the Constitution in favor of their own "interpretation" to suit their own personal policy preferences. That is judicial activism. Good example: abortion. Under an originalist reading of the constitution, there is no right to abortion recognized and protected. At the time (and up until Roe v. Wade), abortions were almost exclusively illegal. The original interpretation could leave no room that the founders did not intend to create a right to abortion in the Constitution. But, more than 5 lawyers in black robes wanted a right to an abortion (their personal policy preference) and so they "found" (more accurated, they "created") one. The DC Cir. did not "create" a right to KABA, they merely recognized the right as originally intended and written by the founders.
 
The link worked for me..here's the text:

Disarmed residents of the nation's capital, which is also the nation's murder capital, seem to have attracted a powerful ally in Sen. Orrin Hatch, Utah Republican. The D.C. Personal Protection Act, introduced by Mr. Hatch on July 15, would repeal the District's 27-year ban on handguns and lift prohibitions on carrying weapons in homes and businesses.
Yes, Congress has been through this before. For the first time, however, someone with the heft of Orrin Hatch is leading the charge. Why Mr. Hatch? And why his sudden preoccupation with D.C. after 27 years? As Council Member Kathy Patterson (Democrat of Ward 3) put it: "I can't believe a senator of his stature would waste time on something like that." Of course, defenseless Washingtonians, at the mercy of the local drug gangs, may have a different view of what constitutes wasted time. Still, that doesn't explain Mr. Hatch's sudden emergence as a crusader for repeal.
Enter the National Rifle Association, a Hatch supporter (and vice versa), the organization most closely associated with vindicating gun-owners' rights. Now it gets really convoluted, because the facts suggest Mr. Hatch and the NRA are doing everything they can to prevent the Supreme Court from upholding the Second Amendment. Here's the untold story behind the Hatch bill: It was concocted by the NRA to head off a pending lawsuit, Parker vs. District of Columbia, which challenges the D.C. gun ban on Second Amendment grounds.
In February, joined by two other attorneys, we filed the Parker case, a civil lawsuit in federal court on behalf of six D.C. residents who want to be able to defend themselves with a handgun in their own homes. When we informed the NRA of our intent, we were advised to abandon the effort. Surprisingly, the expressed reason was that the case was too good. It could succeed in the lower courts then move up to the Supreme Court where, according to the NRA, it might receive a hostile reception.
Maybe so. But with a Republican president filling vacancies, one might expect the court's composition to improve by the time our case was reviewed. More important, if a good case doesn't reach the nine justices, a bad one will. Spurred by Attorney General John Ashcroft's endorsement of an individual right to bear arms, public defenders across the country are invoking the Second Amendment as a defense to prosecution. How long before the high court gets one of those cases, with a crack dealer as the Second Amendment's poster child?
Despite that risk, the NRA seems determined to derail our case. Nearly two months after we filed our lawsuit, the NRA filed a copycat suit on behalf of five D.C. residents and moved to consolidate its case with ours. Both suits challenged the same regulations, asked the same relief, and raised the same Second Amendment arguments. But the NRA included several unrelated constitutional and statutory counts, each of which would prolong and complicate our case and give the court a path around the Second Amendment.
Worse still, the NRA sued not only the District of Columbia but also Mr. Ashcroft, presumably because the Justice Department prosecutes felonies in D.C. Yet no NRA plaintiff is at risk of a felony prosecution. Joining Mr. Ashcroft simply adds months to the litigation so the court can decide whether he is a proper defendant. Regrettably, we now have two suits, one of which is unnecessary and counterproductive.
Thankfully, on July 8, federal Judge Emmet Sullivan, wishing "to avoid any protracted delay in the resolution of the merits in either case," denied the NRA's motion to consolidate. That means the NRA failed in its attempt to control the legal strategy. Just one week later, Mr. Hatch introduced his bill. The timing is suspicious, to say the least. If enacted, Mr. Hatch's D.C. Personal Protection Act could result in the dismissal of our lawsuit. After all, plaintiffs cannot challenge a law that no longer exists.
Everything points to an NRA effort to frustrate Parker. Why was the bill introduced by Mr. Hatch rather than some back-bencher? Why not wait for a court decision (the legislative option is always open, even if the court were to go the wrong way on the Second Amendment)? Why did the NRA file its suit at the outset? Why raise extraneous legal claims, then move to consolidate with Parker, a clean Second Amendment case? Why include Mr. Ashcroft when he is so obviously an improper defendant? Essentially, the NRA is saying, "If we can't control the litigation, there will be no litigation."
Yes, the rights of D.C. residents can be vindicated by either legislation or litigation. But a narrow bill aimed at the D.C. Code will have negligible impact on gun-owners' rights when contrasted with an unambiguous pronouncement, applicable across the nation, from the U.S. Supreme Court.

Robert A. Levy is senior fellow in constitutional studies and Gene Healy is senior editor at the Cato Institute.
 
There is also no right to privacy in the actual text of the constitution. I suppose there may be some who think states should be able to prohibit a married couple from accessing contraceptives. See Griswold v.Connecticut.

At one time the Court struck down laws, which limited the number of hours an employee could be forced to work, based on a workers right to contract.

Cynicism is an intellectual cop-out. Of course people are motivated by self-interest. But to believe man is incapable of impartial and disciplined reason and logic is tantamount to concluding that the rule of law is nothing but an imaginary ideal.

Justice Hugo Black was an ex-Klansman from Alabama and he became a champion of civil rights.

Ultimately, the judiciary is not supposed to stifle all political change, but is intended to moderate the process. Often extreme political views gain popularity and majority support. To guard against mob rule or the tyranny of the majority, our founding fathers had the wisdom or dumb luck to create a system that incorporated checks and balances.

Rarely, but occasionally, the Court is the instigator of change. However, for so-called judicial activism to be effectuated, the executive and legislative branches are required to provide the tools necessary to implement any ruling.

Unanimous rulings are always preferred, but 5-4 rulings often indicate the complex nature of the issues involved. To believe split decisions are the result solely of differing political opinions would render the Court meaningless. Judges are more easily divided based on legal principles and theories than they are along party lines.

Additionally, understanding that men are endowed by their Creator with certain inalienable rights, does nothing to illuminate exactly what those rights may be. Therefore, while some will read a decision as affirming rights already possessed, others may read the same decision as finding some right previously unknown. All rights presuppose their existence. That is the intent of the 9th amendment – that man possesses other unenumerated rights. What those rights might be is within the province of man to determine.

"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
-Oliver Wendell Holmes, Jr.
 
Re all this crap about the militia, and membership therein respecting ownership/possession of firearms, obviously it is simply a chimera behind which hide those who would destroy the constitutionally guaranteed right of citizens to possess and own firearms, one thing that seems to get to easily lost in the confusion stirred up is the following.

Didn't The Militia Act of 1792 or thereabouts specify that with very few exceptions, The Militia was composed of the people, in those days menfolk aged 17 to 45, who when and if called upon, were expected to report for duty bearing arms owned by themselves, said arms being of a pattern similar to that issued by the standing military?

Anyone reading the foregoing, feel free to confirm my understanding, or should it be incorrect, to set me straight.
 
Almost Alan.

The Militia Act of 1792 specified all free, able-bodied white men.

This has, of course, been amended and updated over time.

It is interesting to note that there is a dearth of information regarding the "collective-rights" theory prior to the 1930's. Perhaps I haven't read the texts of the proper socalists... I mean... professors. Anyhow, prior to the 20th century, I can't find any reference to the idea of a "collective" right.

Nor is there any discussion in the constitutional debates about the right being limited only to states and not individuals.

The Constitution is consistent in the use of expressions, to wit; the State and Federal governments have powers, while The People are guaranteed rights that the government cannot remove.
 
BillCA writes:

Almost Alan.

The Militia Act of 1792 specified all free, able-bodied white men.

This has, of course, been amended and updated over time.

It is interesting to note that there is a dearth of information regarding the "collective-rights" theory prior to the 1930's. Perhaps I haven't read the texts of the proper socalists... I mean... professors. Anyhow, prior to the 20th century, I can't find any reference to the idea of a "collective" right.

Nor is there any discussion in the constitutional debates about the right being limited only to states and not individuals.

The Constitution is consistent in the use of expressions, to wit; the State and Federal governments have powers, while The People are guaranteed rights that the government cannot remove.

-----------------

I stand, actually I sit, corrected, thank you.

As to the following, again from your post, "It is interesting to note that there is a dearth of information regarding the "collective-rights" theory prior to the 1930's. Perhaps I haven't read the texts of the proper socalists... I mean... professors. Anyhow, prior to the 20th century, I can't find any reference to the idea of a "collective" right."

Perhaps that is because there was, prior to that juncture in time, none of this crap about collective rights". Additionally, I've always been curious as to the following. Evey place in The Constitution where the term "the people" appears, it has been long accepted that the framers made reference to INDIVIDUALS. Is one really expected to accept that men who were, in their time, quite well educated and literate would have used the same phrasing, yet have given it an entirely different meaning? I think not, and that is why I described this "collective rights" business as CRAP, which is exactly what it is.

Gun Control is also a specious theory, a fairy tale, if you will. Where it has been enacted, it has yet to deliver on it's promises, or rather what it's sponsors promised it would accomplish.

__________________
 
There is a good reason that one cannot find any mention of the "collective right" prior to the turn of the century.

The difference between the pro-firearms and anti-firearms genre is that the pro-rights genre can point to quote after quote of the founders that uphold the individual right to arms. Conversely, the anti-firearms genre can not point to a single quote by any signatory to the Constitution that supports the "collective right" theory.

The "collective right" theory is based on four assumptions:

1. The word "people" as used in the Second Amendment, and in no other Amendment, actually means "States";

2. The Tenth Amendment actually reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the STATES.";

3. The militia is actually the National Guard, which antedates the Second Amendment by 125 years;

4. The Second Amendment protects the States from the Federal Government disarming their militias -- in direct contravention to Article I, Section 10, Para 3 which reads: "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, ..."

In the world of the firearm prohibitionist, the "collective right" theory protects the States from the Federal Government doing what the States need the permission of the Federal Government to do in the first place -- keep troops (National Guard) in time of peace.

The word "right" appears only once in the main body of the Constitution and refers to individuals: authors and inventors. Wherever any government entity is referenced (States, Congress, Judiciary, Executive) the word "power" or "powers" is used. Only individuals have rights. States have only powers granted at the consent of the governed.
 
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