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

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The amici by ACRU makes a mistake in the following:
Moreover, the Second Amendment is placed second in a long list of individual rights, indicating not only that it is an individual right, but a very important one.
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(pg 9, para 2)

The Bill of Rights were proposed and sent to the States on 09-25-1789. Of those amendments, there were 12 distinct proposals. The first 2 articles were not accepted by enough States (the second article was actually ratified on 05-07-1990, making it the 27th amendment). The last ten were accepted and ratified on 12-15-1791.

The second amendment is second only by virtue of it being the fourth proposed amendment, which when the first two were not ratified, make it number 2. It holds no other significance as to its numbered placement within the BOR.

One would expect this organization to know its history and get it correct when dealing with the Supreme Court. How this will affect anything goes at least to their credibility. Which credibility is further weakened by their use of the same erroneous data point on pg 10, para 3:
But are we to believe that what the Framers were concerned about in the Second Amendment was to protect the right of citizens to be armed while serving in the military? Indeed, that they were so concerned about it that they listed it second in the sacred list of protected individual rights consecrated in the Bill of Rights? Were the Framers concerned that without the Second Amendment Americans might be sent into battle by the government unarmed?
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[emphasis mine]

Part IV of the amici (starts at the bottom of pg 11) thoroughly rebuts D.C.s contention that the handgun ban is reasonable and has prevented crime.

In my opinion, they should have thrown out much of Part III (starting on the bottom half of pg 7). Their credibility was lost at that stage.
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The current approach by the Circuit almost precludes standing in any pre-enforcement challenge except those that are challenging the 1st amendment. This is due to Navegear and reinforced by Seegars.

So D.C.'s response to the conditional cross-petition they are, of course, going to downplay any and all aspects of standing within the D.C. Circuit. It is to their advantage to keep standing at absurdly high levels for any pre-enforcement challenges, should they enact other/more laws that conflict with any other rights of the people.
 
"state's right" ... is an oxymoron if there ever was one
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States' rights are the foundation of our constituted frame of government.


the Second Amendment is placed second in a long list of individual rights, indicating not only that it is an individual right, but a very important one.
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Yawn. In reality, when Madison proposed the USBOR, his first amendment regarded the collective right of a people to alter or to abolish their government, and our Tenth Amendment is the States' Rights Amendment, so the USBOR was never a list of individual rights, it is something else.

Why do people just make silly assumptions like "if it's in a bill of rights then it must be an individual right" and "it's number two so it must be real important". Sheesh.

More and more I feel like I do not have a dog in this fight. Neither side seems to have any what-I-call "integrity". They seem to say whatever is convenient at the moment. And whenever I think I might catch a glimpse of some consistent belief in the Constitution, it is belief in a false view, or at best an extremist 14th "Amendment" view.
 
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States' rights are the foundation of our constituted frame of government.
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No, states' powers are. Contrast the 9th and 10th amendments:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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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 people.
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Notice how rights are only retained by the people, while powers are reserved to the states or the people? States aren't the sort of entity that can have "rights". "Rights" logically predate states, which exist only to protect rights, but which have none of their own, only powers the people delegate to the states.

Now, it's true that not all the amendments in the Bill of Rights have to do with rights. However, all the amendments that DO have to do with rights, have to do with the rights of individuals. Because only individuals CAN have rights.

The concept of a 'collective right' is a logical absurdity, created for the malign purpose of taking guaranteed rights, and rationalizing denying them to every single specific person who might claim them, while pretending you aren't just obliterating the right.
 
Now, it's true that not all the amendments in the Bill of Rights have to do with rights. However, all the amendments that DO have to do with rights, have to do with the rights of individuals. Because only individuals CAN have rights.

The concept of a 'collective right' is a logical absurdity, created for the malign purpose of taking guaranteed rights, and rationalizing denying them to every single specific person who might claim them, while pretending you aren't just obliterating the right.
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Thanks for taking care of that!

We do use the term "State's Rights" (even though they've virtually all been dissolved, with the 14th amendment and various rulings that interstate commerce covers anything congress wants to do). But it's not the same thing.

More and more I feel like I do not have a dog in this fight. Neither side seems to have any what-I-call "integrity". They seem to say whatever is convenient at the moment. And whenever I think I might catch a glimpse of some consistent belief in the Constitution, it is belief in a false view, or at best an extremist 14th "Amendment" view.
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So both sides take extreme views and fight it out. WOW! I've never heard of that happening in AMERICA before! Usually in America the two sides of a policital debate sit down and make compromises until a universally approved solution comes up, correct? And then join hands to present it to the American people with the support of all.

LOL! Welcome to America! And to give you a crib sheet ... REAL AMERICANS are against DC and on the pro-2nd amendment side. Because it is an individual right.

THat should be the dog in your fight. If it's not, I've got to wonder why you're at this site.
 
Contrast the 9th and 10th amendments [one says "rights" and one says "powers"].
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Yes, the 10th says "powers". But it is in the Bill of Rights, so I figure there must be something there to do with rights. And I'm thinking that the term "States' rights" has been in the dictionary for at least a century, and I am not aware that the term "States' powers" appears, so I think the proper term is "States' rights". I consider it to be a fact that the Tenth Amendment is known as the States' Rights Amendment, and just for fun I googled the term "States' powers amendment", and got zero hits.

Further, when requesting the 10th Amendment, the States of NC, NY, RI, and VA said that the States were retaining their rights. I tend to think that NY said it best:

"that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same"

And I believe the States' concern was that the Constitution lacked something like the Second Article of Confederation, which referred to the rights of the States:

"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

I think the Tenth Amendment regards each State's reserved sovereignty, freedom, independence, power, jurisdiction, and rights ... and to construe the Tenth Amendment to mean that States don't have rights is to turn it against itself.



all the amendments that DO have to do with rights, have to do with the rights of individuals. Because only individuals CAN have rights ... The concept of a 'collective right' is a logical absurdity, created for the malign purpose of taking guaranteed rights, and rationalizing denying them to every single specific person who might claim them, while pretending you aren't just obliterating the right.
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It might seem like a logical absurdity to you, but collective rights are the foundation of our frame of government. Specifically, the collective right of the people of each State to control their own State, to control their own police and government, and to alter or abolish their government. These collective rights are what the American Revolution was fought over.

My Virginia Declaration of Rights says that "the majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it [government], in such manner as shall be judged most conducive to the public weal". I see nothing logically absurd about that, I think it is a fundamental principle of free government, and a collective right that the Second Amendment is intended to secure.


So both sides take extreme views and fight it out. WOW! I've never heard of that happening in AMERICA before! Usually in America the two sides of a policital debate sit down and make compromises until a universally approved solution comes up, correct? And then join hands to present it to the American people with the support of all.

LOL! Welcome to America! And to give you a crib sheet ... REAL AMERICANS are against DC and on the pro-2nd amendment side. Because it is an individual right.

THat should be the dog in your fight. If it's not, I've got to wonder why you're at this site.
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Wow, what a bunch of condescending drivel. LOL.

One side is out to reconstruct the Second Amendment, and the other side is saying that the Second only protects a select right of organized militia. I think they are both wrong.
 
One side is out to reconstruct the Second Amendment, and the other side is saying that the Second only protects a select right of organized militia. I think they are both wrong.
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I think I see your problem. Not only do you need to understand the history and workings of the American Legal system, you don't understand what this fight is about. I will explain for you:

  • This battle is between gunbanners who want to end gun ownership and gun proponents who want to support it; not "internet lawyers" pushing for their personal viewpoints on the constitution.
  • Gunbanners push for the most anti-gun interpretation of the 2nd amendment possible.
  • Pro-gun people want the most gun-friendly interpretation possible.
  • SCOTUS will listen to both sides and come up with a ruling, which will favor one side or the other.
  • This ruling may open the door to ban guns or support gun ownership. Which do you prefer?

You're welcome. Now you need to decide what side you're on, because there are only two.

Wow, what a bunch of condescending drivel. LOL.
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LOL! Yes it was. But it was in response to ignorant yet pompous drivel, so it was totally appropriate.

LOL!
 
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Oh ... I think I have a sense of what the fight is about. To me, this apparent battle over the RKBA is part of a war over our frame of government. It is an attempt to use the USBOR, in this case the Second Amendment, to empower the federal government with jurisdiction over "rights", in this case the RKBA. And the way I understand it, the root cause of the conflict is that one region wants to subvert our frame of government into something that they can use to force their will, their view of "rights", on everyone. Now really, doesn't that about sum up your "real american" fluff ... isn't the despotic truth that you want a central government that can force your view of rights on everybody? Here is how Jefferson described the yankee problem in 1800:

"should the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious & solid, while so respectable a portion of it's citizens support principles which go directly to a change of the federal constitution, to sink the state governments, consolidate them into one, and to monarchize that. Our country is too large to have all its affairs directed by a single government."

It is my understanding that around 1860 the New England region achieved numerical superiority and the conflict increased such that the Southern region seceded. And of course there was war and then "reconstruction". The Yankee congress (no Southerners) acted to assume jurisdiction over "rights" with a civil rights bill, which President Johnson vetoed for being:

"an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited power, and break down the barriers which preserve the rights of the States. It is another step, or rather stride, towards centralization and the concentration of all legislative powers in the National Government."

Then came the 14th Amendment, which caused Representative Rogers from New Jersey to proclaim:

"It saps the foundation of the Government; it destroys the elementary principles of the States; it consolidates everything into one imperial despotism; it annihilates all the rights which lie at the foundation of the Union of the States, and which have characterized the Government and made it prosperous and great during the long period of its existence."

And then it was the SCOTUS's turn to protect our frame of government by declaring that the 14th could only apply to rights associated with federal citizenship (Slaughterhouse). If I am not mistaken, it wasn't until the 1930's that the USBOR began to be used to empower the federal government to bind the States, and I believe it is still a fact under constitutional law that the Second Amendment does not bind the States.

In my understanding, Heller is part of an orchestrated attempt by a few lawyers to incorporate/reconstruct the Second Amendment, in an attempt to use the federal judiciary to force a certain view of the RKBA on everyone. I think it goes right back to what Jefferson said, about an intent "to sink the state governments, consolidate them into one, and to monarchize that". It is not the vision of REAL AMERICANS, it is the vision of REAL YANKEES.

Heller reminds me of a property boundary conflict, where the boundary has been fixed for centuries, but somebody has an agenda to move it fifty feet one way, and somebody else fights back by trying to move it fifty feet the other way. I have no dog in that fight, my only agenda is truth, to have the boundary where it has always been and was consented to, and your assertion that there are only two sides, that I must be for moving it this way or that way, seems to lack integrity.
 
Meanwhile, in the real world the rest of us are in...

If you don't want to wait for it to appear on the DCGunblog site, D.C. has replied to Heller's respones. Download/read it here. This was filed Tuesday, the 23rd.

The scotusblog reporter, Lyle Denniston blogs about it here.

Today, the SCOTUS has set a conference date on the matter of cert, for Nov. 9th. From scotusblog:
The Supreme Court will consider two petitions growing out of the Second Amendment dispute over a District of Columbia ban on private possession of handguns at its Conference on Nov. 9, according to the Court’s electronic docket on Wednesday.

The two cases are the city’s appeal — District of Columbia v. Heller (07-290) — challenging a D.C. Circuit Court ruling last March striking down the handgun ban under the Second Amendment, and a cross-petition by five city residents — Parker v. District of Columbia (07-335) — seeking to join in the case to add their own legal complaints about the city gun control law.

Because the two sides have framed the Second Amendment question in different ways in their papers in 07-290, it is conceivable that, should the Court grant review, it might choose to rephrase the issue itself.

The earliest that an order on the fate of the two cases would emerge is probably Tuesday, Nov. 13. The case, if granted, would probably be heard in February or March.
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Hugh, you're more Damright than wrong in your summary, but it's over. Incorporation and the 14th are unquestionably here to stay, and that makes Garand Illusion right.
 
SCOTUS will listen to both sides and come up with a ruling, which will favor one side or the other.
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I seriously doubt that their decision will favor either side. It is indeed a rare day when any SCOTUS decision makes anyone happy other than one or two people directly involved in the case. No matter how they rule the vast majority of people will complain about it either did not go far enough or went too far.
 
I seriously doubt that their decision will favor either side. It is indeed a rare day when any SCOTUS decision makes anyone happy other than one or two people directly involved in the case. No matter how they rule the vast majority of people will complain about it either did not go far enough or went too far.
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Very true ... but if they accept the case they will ALMOST certainly (they may find some way to weasel out of it, I take nothing for granted) have to in some manner make a ruling as to whether the 2nd is an individual or "State's right," whether they allow DC's gun ban to stay in place or not. That will affect we gun owners in the future in some manner. Maybe not right away, but someday and then always.
 
And then it was the SCOTUS's turn to protect our frame of government by declaring that the 14th could only apply to rights associated with federal citizenship (Slaughterhouse). If I am not mistaken, it wasn't until the 1930's that the USBOR began to be used to empower the federal government to bind the States, and I believe it is still a fact under constitutional law that the Second Amendment does not bind the States.

In my understanding, Heller is part of an orchestrated attempt by a few lawyers to incorporate/reconstruct the Second Amendment, in an attempt to use the federal judiciary to force a certain view of the RKBA on everyone. I think it goes right back to what Jefferson said, about an intent "to sink the state governments, consolidate them into one, and to monarchize that". It is not the vision of REAL AMERICANS, it is the vision of REAL YANKEES.
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But I think if you check Federation law you'll see in Karfgada vs. the Council of Planets, where a peaceful Klingon trader was arrested in the sigma quadrant for illegal possession of disrupter weapons and dilithium explosive devices, that it is very clearly ....

Oh, sorry. I figured if we were making up realities I'd like to live in Star Trek world! That'd be cool!

Good luck with your view of America, Mr. Damright. But this ruling will affect laws in this country and our future, and if you are a gun owner the BATF will enforce their laws on you as well as the rest of us.

I have no doubt that you'll have a condescending sneer on your face as they handcuff you and put you in the back seat, but if you endlessly spout your meaningless views eventually they're going to put a Hannibal Lecter mask on you. Not that your writing isn't well articulated, it's just not about reality.

Good luck in Damright world. Perhaps you should open your own forum? One where the last 150 years or so of judicial history never happened.
 
Tomorrow -- SCOTUS starts considering a 2nd amendment case

So tomorrow the Supreme court begins to consider whether or not to accept the Heller vs. DC / Parker vs. DC case(s) on the 2nd amendment. No answers on anything right away, but if this link works it shows all of the recent activity:

Heller vs. DC

A lot of interesting reading there.
 
According to ScotusBlog, there are 6 cases that will be reviewed in todays conference.

Realisticly, the soonest we might expect to hear if cert is granted or denied, would be Tuesday, Nov. 13th (Mon. being a Fed. Holiday)... So look for a decision on this, sometime next week.
 
A Day In Court - Supreme Court

A DAY IN COURT - SUPREME COURT

Later today, the United States Supreme Court will go into private conference to consider a case that may bring the biggest Second Amendment decision in our history. The nine justices will consider taking District of Columbia v Heller, a challenge to the District's two-decade old ban on handguns.

The decision on hearing the case will be announced Tuesday, and it's a safe bet to say both sides are holding their breaths and, as always, rooting against each other. For staunch gun control forces, the case represents a potential setback of gigantic proportions.

If you're a Second Amendment advocate (which you probably are if you're reading this), it's a real opportunity to get a high court ruling on the this statement from the Second Amendment: ``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.''

Gun control forces say this statement means the government can limit firearms as a part of its power to "regulate the militia." In other words, gun ownership is a collective right, with the government arming - and organizing - its citizens to protect homeland security. In that interpretation, individual firearm ownership is not guaranteed.

'The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice,'' New York and the three other states declared in an amicus brief.

To most of our readers, those are fighting words.

In a Constitution predicated on rights of the individual, the idea of a control on a "right" is simply unacceptable. Rights, after all, are not granted by a government, they are inalienable, not subject to the winds of political correctness.

The Appellate Court that divided on the matter last year tossed out the D.C. handgun ban, setting the stage for the Supreme Court. ''The right to keep and bear arms was not created by the government, but rather preserved by it,'' Judge Laurence Silberman wrote for the U.S. Court of Appeals for the District of Columbia Circuit. ``The amendment does not protect the right of militiamen to keep and bear arms, but rather the right of the people.''

Since the Appellate Court was divided in its opinion (to the point that dissenting judges issued their own opinion, albeit with no force of law behind it), it's the kind of decision the Supreme Court generally takes under consideration.

And that decision has gun-control groups very nervous. So nervous that several groups actually tried to convince the District of Columbia not to appeal the case. Instead, DC officials decided to continue their case, setting the stage for what could be a major setback for gun control forces.

"There is a lot at risk," says Denis Henigan, legal director for the Brady Campaign, adding it was,"more likely than not" the necessary four judges would vote to consider the case.

Texas, Florida and eleven other states have filed their amicus curae briefs asking the court to rule the District's ban illegal.

For gun control advocates, Heller represents their worst-case scenario, a solid citizen challenging his right to protect himself in his own home. For those of us who believe gun ownership is a matter of choice, not law, it represents a real opportunity to reverse decades of anti-gun rhetoric and regulation to its fallacious roots. Like many issues, it is black-and-white to us: firearms ownership either is - or isn't - a right, and as such, the rights of law-abiding citizens are being infringed upon by layers of regulations with a single intent- the disarmament of law-abiding citizens.

Will the Supreme Court of the United States hear this case? SCOTUS observers say odds are "better than even" the justices will decide to hear the case. If that is the decision, the matter will be considered some time in 2008, with a decision to come at some point afterward.

In the meantime, the gun battle continues.

We'll keep you posted.
 
Re the above, there was an article in today's Pittsburgh Post-Gazette on the subject.

Strange to note, the writer, one Michael Doyle of McClatchy Newspapers, got it right respecting D.C.'s treatment of long guns, legal so long as they are disassembled or stored with trigger locks, making them useless as defensive arms. He told pretty much the hole story, something that news stories seldom manage to do.

Even he however missed the question of registration. Correct me if I'm wrong, but no guns not registered prior to 1976 are "legal" in D.C., and newly arrived guns cannot be registered. Also, such gun shops as may have existed in D.C. have long since been driven out of business.
 
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