D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

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self defense is a fundamental right and therefore any law or regulation that infringes on that right is unconstitutional
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On what do you base the assertion that any law that infringes on a fundamental right is unconstitutional? It's not as if the Framers' Constitution protected our fundamental rights against State/local laws. I think that the only way that the US Constitution protects fundamental rights is through the 14th "Amendment", which says that no State shall abridge the privileges or immunities of US citizens. Since DC isn't a State, there might be some argument about whether the 14th is binding upon DC.

Exactly how do the DC laws infringe on the right to self-defense? If a person cannot have a handgun in his home but can have a shotgun or rifle, then does the handgun ban infringe on a right to self-defense? If weapons must be kept unloaded and with a lock on the trigger, is that a law regarding the use of a firearm in self-defense, or is it a law regarding the storage of a weapon when not being used for self-defense? Some people try to spin it so that the DC law makes it illegal to use a weapon in self-defense, but if that is what the big deal is, then can't DC just change the law to say that the storage requirements do not apply to firearms rendered operable in response to an immediate threat?
 
Hugh, my legal education is pretty well limited to what I read here fortified with a few other sources and quotes. If what my idea of a 'right' is different from yours or from the SCOTUS I'll have to plead ignorance of the law.

One of the sources that occasionally quote is Cicero. I know, he didn't argue anything before the Supreme Court but he was a pretty smart guy anyhow. In his proposed argument before the court regarding his friend Milo, who was charged with murder, this is what he said:

This, therefore, is a law, O judges, not written, but born with us- which we have not learned, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made- which we were not trained in, but which is ingrained in us- namely, that if our life be in danger from plots, or from open violence, or from the weapons of robbers or enemies, every means of securing our safety is honorable. For laws are silent when arms are raised, and do not expect themselves to be waited for, when he who waits will have to suffer an undeserved penalty before he can exact a merited punishment.

The law very wisely, and in a manner silently, gives a man a right to defend himself, and does not merely forbid a man to be slain, but forbids anyone to have a weapon about him with the object of slaying a man; so that, as the object, and not the weapon itself, is made the subject of the inquiry, the man who had used a weapon with the object of defending himself would be decided not to have had his weapon about him with the object of killing a man.


I firmly believe, as I think most here do, that if we have a right to life we also have a right to defend it with whatever force is required up to and including the death of the assailant.

The present (post Parker) view of the government of D.C. is that a locked or disassembled rifle or shotgun is adequate for that purpose. I do not share that opinion nor do most who post here. Time will tell whether or not we are in the majority.
 
Exactly how do the DC laws infringe on the right to self-defense? If a person cannot have a handgun in his home but can have a shotgun or rifle, then does the handgun ban infringe on a right to self-defense?
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Hugh - the DC laws in question forbid rifles or shotguns from being kept in an usable state. An unloaded and locked or disassembled shotgun, kept in compliance with DC law, is nothing more than an expensive club.

"Oh please, dear home invasion robber, kindly wait while I unlock, reassemble, and load my shotgun."

And most violent crimes occur outside the home, anyway.
 
I firmly believe, as I think most here do, that if we have a right to life we also have a right to defend it with whatever force is required up to and including the death of the assailant.
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DC agrees with that too. The laws in question do not make it a crime for a person to defend himself.

If we're going to assert that the right to self-defense and the RKBA are inseparable, such that everybody has a right to carry firearms everywhere they go (e.g. banks, bars, schools, national parks) ... I'm not sure what we're trying to say ... is the idea that we want the SCOTUS to strike down all gun laws at every level of government? I think we need an argument that is better tailored to the DC laws on trial.

Personally, if it was up to me, I think I'd simply ask the court to rule that the right to keep an operable firearm in the home, including handguns, comes under the privileges and immunities of US citizens protected by the 14th Amendment. That no matter what State or district a US Citizen goes to, in his own abode, he has a right to keep an operable gun (unless prohibited by conviction of crime). Even the National Park laws allow an operable weapon in your own personal residence, so perhaps they could be used as a model.

But I don't reckon that would satisfy the agenda to reconstruct the Second Amendment.
 
if that is what the big deal is, then can't DC just change the law to say that the storage requirements do not apply to firearms rendered operable in response to an immediate threat?
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They could make that change, but they will not. DC has made conflicting statements on the subject, but according to the law, you can't unlock and load your gun. Period.

I fear that Antipitas has charted the course of events to come. This "intermediate scrutiny" will in practice just be the same old rational basis test.

I just can't believe they're really going to apply the meaning of the 2A as stated in the Miller decision:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
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We're supposed to be able to show up with our own M-16s. That's what it was all about, and while America is strong today, nations rise and fall. A day may come again when it's a good idea to have a citizenry armed with weapons of the kind in common use at the time.
 
From Hugh Damright:

Quote:
I firmly believe, as I think most here do, that if we have a right to life we also have a right to defend it with whatever force is required up to and including the death of the assailant.

DC agrees with that too. The laws in question do not make it a crime for a person to defend himself.

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Re your last, I suppose that that is true, however the DC laws do make it a crime to possess, in operable condition, such device or devices that are emminiently suitable for self defense, or so it seems, via their ban on the posseassion of handguns, and the requirements for "storeage" of long guns. Correct me if I'm wrong.
 
GOA has appropriately weighed in on this rather typical anti-rights stand by the Bush regime.

http://www.prnewswi re.com/cgi- bin/stories. pl?ACCT=104& STORY=/www/ story/01- 18-2008/00047390 45&EDATE=

SPRINGFIELD, Va., Jan. 18 /PRNewswire- USNewswire/ -- Gun Owners of
America (GOA), a grassroots lobby representing over 300,000
Americans, has called on the Bush administration to withdraw an
anti-gun brief field by the Solicitor General in the U.S. Supreme Court.

The amicus brief, filed last Friday in the D.C. gun ban case of D.C.
v. Heller, argued that any gun ban - no matter how sweeping - could
be constitutional if some court determines that it is "reasonable. "

"If the Supreme Court were to accept the Solicitor General's line of
argument," said Larry Pratt, Executive Director of GOA, "D.C.'s
categorical gun ban of virtually all self-defense firearms could well
be found to be constitutional, even if the court, as predicted, holds
that the Second Amendment protects 'individual' rights."

The Solicitor General's suggestion that comprehensive gun bans are
constitutional if some court determines they are "reasonable" was
enthusiastically greeted by anti-gun zealots - probably because it
represents the lowest standard of constitutional review.

"In contrast to other provisions in the Bill of Rights, which can
only be trumped by 'compelling state interests,' the Second Amendment
would be relegated to an inferior position at the lowest rung of the
constitutional ladder, should the Justice Department prevail," said Pratt.

"Moreover, under the administration' s amicus brief, a national ban on
all firearms - including hunting rifles - could be 'constitutional, '
even if the Supreme Court decides - on ample historical evidence -
that the Founders intended the Second Amendment as an individual right.

"Rather than argue that 'shall not be infringed' is a categorical
prohibition on government gun-banning, the administration has chosen
to align itself with those who do not believe in self defense or
civilian gun ownership," Pratt concluded.

As a result, GOA put out a public call for the Justice Department to
withdraw its anti-gun brief, and invited the National Rifle
Association to join it in fighting this anti-gun development.
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Further, as a NRA Life Member I call on the NRA to back the highest level of rights protection offered by the Second Amendment, that any restriction on arms access by the federal government is unConstitutional.
 
They did it for one reason only - some bright boy over there in Wonderland Central figured out that a decision showing 2A is an individual right puts every fed law in danger of overturn eventually, including GCA '68 and NFA '34. Commence the pants wetting. I don't see it happening before I retire, but maybe my son can raise his children in a more free country.
 
It wouldn't surprise me to see the supremes rule exactly as the appellate court dissenter did - ie, since DC is not a state, the 2nd ammendment doesn't apply.
 
It wouldn't surprise me to see the supremes rule exactly as the appellate court dissenter did - ie, since DC is not a state, the 2nd ammendment doesn't apply.
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So you are saying NONE of the items listed in the COTUS applies to DC? I guess there is no due process, the police can drag people out of their homes and beat confessions out of them, forced labor is in effect and all others sorts of nastiness can take place?

Sorry, the COTUS applies within DC and I believe this has already been well established.
 
If DC is not considered a state or part of a state, then what country is it part of?
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I don't think the SCOTUS will say the COTUS doesn't apply in DC, though they may say the 2nd amendment doesn't because it includes the term "state." A separate issue much discussed in this thread.

But ...

DC is NOT a state or part of any state. If you live in DC, you do not have any congressmen representing you, because there are no congressmen elected to congress, either the house or senate, from D.C. I think it's been only since the 1960's that DC residents even got to vote for president.

It's specially set aside in the constitution as basically a federal reserve. Congress has full authority, even though the people there don't vote for congressmen (talk about taxation without representation!)
 
Arguments against the DC ban always seem to fall into one of two categories - logically unsupportable, or absurd. Even if the Second Amendment did mean "state" as in "several states" rather than "State" as in "Nation," it still doesn't restrict gun rights to that category.

They could make that change, but they will not. DC has made conflicting statements on the subject, but according to the law, you can't unlock and load your gun. Period.
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In other words, you can still be prosecuted, and have to rely on an affirmative defense under the doctrine of competing harms, and hope it sticks.
 
I noted in the DOJ brief it causually mentions the machinegun ban as simply a given many times. I hope that someone will point out the history of machinegun restrictions. The 1934 NFA restricted control by implementing a tax because they couldn't be banned outright. That is why firearms ended up under the jurisdiction of BATF with other items regulated by taxation.

Also, I am not familiar with the 1986 ban. Can't individuals still own machineguns per NFA with registration and tax? I know many states ban them. But, I thought there were still some pockets of freedom hinden behind the red tape.
 
Also, I am not familiar with the 1986 ban. Can't individuals still own machineguns per NFA with registration and tax? I know many states ban them. But, I thought there were still some pockets of freedom hinden behind the red tape.
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From what I've been taught -- and I'm sure that there are those on this board with a much greater knowledge of the history -- the 1934 NFA restriction was passed as a tax and not a ban because politicians didn't feel as though a ban would be constitutional (or acceptable to Americans). That's why they continued to let American's own anything the military used, including grenades and artillery, as long as they paid a tax.

And then, as they do, they ratcheted that up a notch by turning it into a ban on full auto guns built after 1986. But guns registered and taxed before then are still fully transferrable. From what I understand, there are well over 100,000 fully automatic machine guns in the hands of civilians, for than 3,000 in Colorado alone.

I know when they put together a "machine gun shoot" they don't have any trouble finding people to participate.
 
That's right, but I've heard higher numbers. It seems like we have about a quarter million legal machine guns in the US. Most seem to have a 5-figure price tag.

Then they break, and have a 2 or 3-figure price tag.

Eventually, if people keep firing them, there will be none.

It's a slow motion ban, like slowly boiling a frog. We should end the ban on manufacturing new ones. They aren't any more usable in crime than a legal AR-15, and there have only been a couple of crimes ever committed with a legally owned machine gun.
 
Thanks Grand Illusion and publius42.

That is what I thought. I hope that one of the briefs to come will point out that historically the constitutionality of a ban was an issue.
 
Garand Ilusion and Glocknoid:

The 1986 Machine Gun Ban, as I understand things, is a major reason for the ridiculous prices that are asked and obtained for TRANSFEERRABLE MACHINE GUNS.

As for the status of the 1934 Act, being a REVENUE RASISING DEVICE, that is how it was referenced, according to The U.S. Constitution, powers not delegated to the federal government are reserved to the states and the people.O.K.?

Nowhere in The Constitution was the goverenment given the power to restrict, ban or otherwise regulate in any way at all, firearms. The Congress was given the power to raise taxes, ergo the 1934 Act became a Revenue Bill. Congress also had the power, I suppose, to regulate interstate commerce, though perhaps that hook hadn't come to the mind of anyone in the first Roosevelt Administration.

By the way, there are a number of states, in which ownership of working automatic weapons is fine and dandy, so long as federal requirements are met. Pennsylvania is one such. I've known several people in PA that legally owned automatic weapons, selective fire rifles, and sub machine guns. There was also one man who had what looked like a Browning 30 caliber light machine gun. though it didn't seem to work well at all.

By the way, if one looks carefully, the GCA 1968 turns out to be AN AMENDMENT to the 1934 Act. I believe that the 1986 Ban might be too.
 
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