Supreme Court grants cert on D.C. Second Amendment case; Update: Electoral repercussions? Update: A federalist solution?

posted at 1:30 pm on November 20, 2007 by Allahpundit

Quite possibly the first time we’ve had to run the nuke thumbnail twice in the same day. But richly deserved in both cases.

Two hundred seventeen years after ratification, we finally get to find out what “well regulated militia” means.

The Supreme Court said Tuesday it will decide whether the District of Columbia can ban handguns, a case that could produce the most in-depth examination of the constitutional right to “keep and bear arms” in nearly 70 years…

The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday’s announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.

It was a foregone conclusion that they’d agree to hear the case. These are the best odds we could hope for: Two new conservative Bush appointees on the Court joining the two Reagan appointees and Clarence Thomas. Why, I haven’t felt as confident in victory since eight Republican appointees heard the, erm, Casey case.

Fearless prediction: Get ready to give up those guns, kids, because this one’s going the other way. And you know damned well whom you’ll have to thank. The Gipper!

supreme-court-kennedy4.jpg

Update: No matter how it turns out next June, it’s going to be a thunderbolt in the middle of the campaign. Ironically, the GOP losing this case would be a huge boon to gun-grabber Rudy, assuming he’s the nominee, since it would sharpen the focus on his promise to appoint conservatives like Scalia and Thomas, who share Rudy’s own, ahem, originalist philosophy. If you’ve got a bunch of social cons thinking of sitting home on grounds that there’s no difference between him and Hillary, this will do wonders to galvanize them. Of course, if the case comes out our way, it’ll work the same magic for the left. Which means this will be the second election in eight years which the Court may play a significant role in deciding.

Update: You never know how broadly or narrowly the Court’s going to address an issue when it comes before them, but it sounds like they’re going to hit this one squarely. According to SCOTUSblog, the question the Court has set for itself is as follows:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

Update: Some of our commenters are despondent that if my prediction is right, it’ll open the way for federal handgun bans. This is out of my area of expertise but there’s a separate question of whether Congress has the power to regulate weapons, at least under the Commerce Clause. Given the political sensitivity of the issue and the prospect for a backlash among independents the Democrats need to win, I’m guessing if the Court does declare the Second Amendment a collective right you’ll be seeing both parties’ nominees take the federalist approach of letting the states regulate it.

Update: In fact, now that I think of it, it’s not out of the question that Kennedy would join the conservatives if they interpret the provision in a federalist manner. The reasoning would go something like this: Since militias are a tool used by the states to defend themselves from aggression by the federal government, it’s up to the states themselves to decide how “well regulated” they want their militias to be. If Texas wants every man to have the right to own a gun in his home, so be it; if D.C. wants to make it a collective right, so be it. The obvious attraction of that model would be that it lets rural areas be rural and urban areas be urban and is also true in spirit to the Court’s jurisprudence over the last 10-12 years expanding the scope of states’ rights. Significantly, Kennedy joined the majority in most (or possibly all) of those decisions. Roberts may see the federalist solution as a way to bring him onboard for this one too.


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Comments

Gregor,

Have you read the Future Once Happened Here? It is hardly the writing of a liberal. Siegel is a hawk for welfare reform, personal responsibility, the culture of dependency, the scourge of illegitimacy, destructive race based policies, and so forth.

As a Senior Advisor to Giulini, Fred Siegel had a positive influence on Rudy’s policies – the policies which took on the entrenched liberal bureaucracy that had run NYC for decades.

If we are to follow your logic, no one who has ever worked for or advised a political figure is capable of writing an objective account of that individuals time in office because it would not be “fair and balanced”.

Instead of throwing out red herrings about Siegel, why don’t you tell us specifically what advice he gave Giuliani that you disagree with?

I realize it is a bit unfair to remind you that I, for one, actually lived in NYC, but until you’ve lived there and experienced how indescribably rotten it was until Rudy usurped the liberals, the complaints you make about him being a “flaming liberal” are ludicrous.

Gotta run. Later maybe.

Buy Danish on November 20, 2007 at 6:38 PM

Have you read the Future Once Happened Here? It is hardly the writing of a liberal.

Buy Danish on November 20, 2007 at 6:38 PM

I didn’t claim that Siegel is a liberal. I pointed out that he was an advisor to Giuliani. My intention was to hint that Siegel is almost assured to be in line for a position on a Giuliani administration, should he become President. Having been on Giuliani’s staff as Mayor, he’s hardly unbiased.

Gregor on November 20, 2007 at 6:45 PM

Buy Danish on November 20, 2007 at 6:38 PM

Ahhh… the moral authority card…

“I, for one, actually lived in NYC”

Once again… what you seem to consider a Conservative, would only be considered Conservative in NYC.

Problem is that he is now running for President… he is now being judged by US… not New Yawkers…

Romeo13 on November 20, 2007 at 6:51 PM

MΜΟΛΩΝ ΛΑΒΕ!

mojojojo on November 20, 2007 at 6:55 PM

I am sure this has been said many many times but…

From my cold dead hands.

Why anyone would think that the all first 10 amendments are given to the individual and not a group (save the 2nd) is beyond me.

Also is you read other wittings from the original framers during that time should be obvious what the intent was.

That being said anyone know when the next gun show is?

Good show from Penn & Teller language warning

F15Mech on November 20, 2007 at 7:00 PM

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? — Supreme Court

The way the Supreme Court phrased the question is telling. The individual this phrase speaks to is firstly not part of a militia and secondly is NOT IN A STATE. The way they framed the question seems to portend a bias against the lower court decision.

I would not be surprised to see a unanimous decision reversing the appeals court. The appeals court did in fact rule incorrectly. This is Washington D.C. we are talking about and NOT A STATE. The feds can ignore the Second Amendment in Washington DC if they choose to do so and that is perfectly Constitutional. They can’t do that in a STATE but they can do in DC or any federal enclave.

So hopefully if they rule against the appeals court, which by the framing of this question it seems they are likely to do …. hopefully they will explain with clarity why they have done so. This is important in order to clarify that the ruling has no impact on any of the fifty states. If the court doesn’t do that, then its going to be your responsibility to know it, don’t rely on the media to tell you the truth of the matter.

It all rest NOT ON THE WORDING of the Second Amendment, but on the fact the Feds have plenary jurisdiction in Washington DC, which means they can ignore the Second Amendment in that federal enclave if they want to.

And in case you don’t believe me concerning the “plenary jurisdiction” of the federal government in Washington D.C. and other federal enclaves, please read the excerpt from the case below. The Supreme Court case below is convenient in that it states the fact of “plenary jurisdiction” quite clearly, but you will find this fact stated time and time again in many Supreme Court and other U.S. court cases generally.

Appellants’ reliance upon Palmore for such broad legislative discretion is misplaced. In the context of the issue decided in that case, the language quoted from the Palmore opinion, supra, at 72, offers no substantial support for appellants’ argument. Palmore was concerned with the courts of the District of Columbia, a unique federal enclave over which “Congress has . . . entire control . . . for every purpose of government.” Kendall v. United States, 12 Pet. at 619. [p76] The “plenary authority” under the District of Columbia Clause, Art. I, § 8, cl. 17, was the subject of the quoted passage, and the powers granted under that Clause are obviously different in kind from the other broad powers conferred on Congress: Congress’ power over the District of Columbia encompasses the full authority of government, and thus, necessarily, the Executive and Judicial powers as well as the Legislative. This is a power that is clearly possessed by Congress only in limited geographic areas. Palmore itself makes this limitation clear. The quoted passage distinguishes the congressional powers at issue in Palmore from those in which the Art. III command of an independent Judiciary must be honored: where “laws of national applicability and affairs of national concern are at stake.” 411 U.S. at 408. Laws respecting bankruptcy, like most laws enacted pursuant to the national powers cataloged in Art. I, § 8, are clearly laws of national applicability and affairs of national concern. Thus our reference in Palmore to “specialized areas having particularized needs” referred only to geographic areas, such as the District of Columbia or territories outside the States of the Federal Union. In light of the clear commands of Art. III, nothing held or said in Palmore can be taken to mean that, in every area in which Congress may legislate, it may also create non-Art. III courts with Art. III powers.

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. 458 U.S. 50

Maxx on November 20, 2007 at 7:03 PM

Briefly, because I really do have to run –

There’s a big tent, remember? Our priorities are different, but that does not mean that I am not a conservative.

I certainly do not think that a conservative can be defined as someone who would stay home on election day in a fit of pique because, in their estimation, the perfect candidate was not running.

IMO, anyone who helps elect Hillary Clinton, or Barack Obama is not a conservative, but is a fool.

I don’t know that Romeo13 or Gregor fit that description, but there are an awful lot of fools running around Hot Air who would cut off their nose to spite their face.

Unfortunately the damage would not be limited to their noses and would adversely affect every single one of us.

Buy Danish on November 20, 2007 at 7:05 PM

Exit Question 1: What happens if the court rules against the Second Amendment?

amerpundit on November 20, 2007 at 1:45 PM

Well, most states are going to have legislative majorities in favor of the right to bear arms. Congress is unable to pass gun laws. So, the answer is that almost nothing to nothing happens to guns. The electoral answer is that the Republicans win the 2008 election.

I bet Hilary is praying for the gun freedom outcome.

thuja on November 20, 2007 at 7:07 PM

Why anyone would think that the all first 10 amendments are given to the individual and not a group (save the 2nd) is beyond me.

Also is you read other wittings from the original framers during that time should be obvious what the intent was.

F15Mech on November 20, 2007 at 7:00 PM

Probably the same “reasoning” why the First Amendment, the only one of the first 5 which speaks directly to the federal government, applies to states and local governments, while the first part of the Fifth does not (there is no such thing as a grand jury in Wisconsin).

steveegg on November 20, 2007 at 7:12 PM

Yet ANOTHER reason to go with the Republican nominee (even if he’s not YOUR choice). Imagine a Shrillary-stacked Supreme Court. The next POTUS has the opportunity to leave his mark for decades.

SouthernGent on November 20, 2007 at 7:15 PM

Maxx on November 20, 2007 at 7:03 PM

Have you taken any ConLaw classes? If so, may I suggest getting a refund?

steveegg on November 20, 2007 at 7:15 PM

Have you taken any ConLaw classes? If so, may I suggest getting a refund?

steveegg on November 20, 2007 at 7:15 PM

Gee thanks for the advise, but I hope you understand it’s NOT “Maxx” that’s telling you about plenary jurisdiction. It’s the Supreme Court and the Constitution itself.

You have no reason to believe me, but if the Supreme Court and the Constitution says it…. maybe you should pay attention.

Maxx on November 20, 2007 at 7:18 PM

Your vote won’t mean squat without 140grains of powder to back it up.

Limerick on November 20, 2007 at 2:08 PM

Amen, brother!

(or sister!)

omnipotent on November 20, 2007 at 7:24 PM

Limerick on November 20, 2007 at 1:40 PM

Can I have the address of that sale?
;-)

Seriously though, we would all do well to take similar steps now to make sure we’re ready when the gun grabbers come calling.

infidel4life on November 20, 2007 at 7:29 PM

I know very little about Constitutional law and certainly cannot speak to it as many of you have. But just from my memory of American history, didn’t the Anti-federalists object to the Constitution because it did not contain a Bill of Rights for individuals? Therefore, wasn’t the Bill of Rights tacked on in order to boost chances of ratification? Sooo, doesn’t the fact that it is a part of an individual bill of rights put the question to bed? Or what am I missing?

Renae on November 20, 2007 at 7:32 PM

Maxx on November 20, 2007 at 7:18 PM

I presume you’ve heard of the Tenth Amendment. Allow me to refresh your memory…

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.

I haven’t seen anything in the succeeding sixteen amendments that invalidated this. While the Courts seem to have been ignoring it for the last 60 years, that ignorance doesn’t make it invalid. It, along with the entire intent of the Constitution, makes your claim that the federal government can and should ignore the Constitution on federally-controlled property such as the District of Columbia patently laughable.

Morever, the entire point of the DC Circuit’s rejection of the District’s gun ban is based on the concept of plenary jurisdiction, and that the Second Amendment does apply to individuals.

steveegg on November 20, 2007 at 7:33 PM

Make that succeeding seventeen amendments. It’s been a long day.

steveegg on November 20, 2007 at 7:36 PM

I read a concise dissection of the 2nd amendment on John Lott’s blog…not his, I hasten to add – a commenter’s.

This person went back to basics and viewed the amendment as an english sentence _as it was written at the time_.

It consists of four fragments:

[object] A well regulated militia
[justification] being necessary to the security of a free state
[qualification] the right of the people to keep and bear arms
[constraint] shall not be infringed

If you collapse the amendment fully, it would read “A well regulated militia shall not be infringed”…ie. the objective of the amendment is indeed to preserve the militia from gubmint interference.

But in the process of doing so, it _also_ has to expand upon exactly _why_ and _what_ underlies this protection – what makes it so vital.

Namely that the militia is vital for preserving freedom from tyranny, and that the right of the people (INDIVIDUALLY) to keep and bear arms is manifest in our ability to form such militia. You cannot infringe upon one without infringing upon the other.

Regarding the DC law…if justice is to be done, the _individual_ interpretation must be upheld, the outright ban on handguns must be struck down, as must the requirement they be kept unloaded/disassembled/locked, but I think there may be a _narrow_ possibility that registration may be upheld…but that’s it. Basically, the DC law should be gutted, fried, and served up at the next NRA banquet.

Happy days

Ochlan on November 20, 2007 at 7:41 PM

compelling state interest

The constant vomiting of this justification is horrific. There is _no_ such qualifier/caveat in the constitution. None.

WTF defines “compelling” or “state interest”? It’s a fraudulent open door for subverting the constitution.

Fvck that with a jackhammer.

Ochlan on November 20, 2007 at 7:52 PM

I presume you’ve heard of the Tenth Amendment. Allow me to refresh your memory…

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.

steveegg on November 20, 2007 at 7:33 PM

What is your point with the Tenth Amendment? Firstly the power I am speaking of is expressly delegated to the federal government “The Seat of Government.”

Here, read it for yourself. Pay attention to clause 17 and 18 of Section 8.

I haven’t seen anything in the succeeding sixteen amendments that invalidated this. While the Courts seem to have been ignoring it for the last 60 years, that ignorance doesn’t make it invalid. It, along with the entire intent of the Constitution, makes your claim that the federal government can and should ignore the Constitution on federally-controlled property such as the District of Columbia patently laughable.

Morever, the entire point of the DC Circuit’s rejection of the District’s gun ban is based on the concept of plenary jurisdiction, and that the Second Amendment does apply to individuals.

steveegg on November 20, 2007 at 7:33 PM

There isn’t anything in the amendments that invalidated plenary jurisdiction for the feds in DC or the federal enclaves, that’s why your not seeing any such an invalidation. This is ARTICLE 1 of the Constitution we are talking about…. before any amendments.

Did you fail to understand what the Supreme Court was saying in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. above? That is about as clearly as it can be said, except in Article 1, Section 8 of the Constitution.

Here is the Supreme Court saying the same thing again in another case, albeit not quite as clearly.

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions.

United States v. Cruikshank, 92 U.S. 542, at 550, 23 L.Ed 588 (1875)

Maxx on November 20, 2007 at 7:57 PM

Wow, by the time I’ve posted there are 210 comments! I don’t have time to read them all, but Allah, if you see this, there is another factor here, Constitutionally speaking. The case is from D.C., not a state. Clearly if there was no Second Amendment, Article I, Section 8, clause 17 would be controlling. That declares: “The Congress shall have Power… to exercise exclusive Legislation in all Cases whatsoever, over such District… as may… become the Seat of the Government of the United States.” So a significant question here is: does the Second Amendment trump the District clause? Or does the District clause trump the Second Amendment? And notice that the Second Amendment, unlike the first, does not contain language expressly denying a power of Congress to legislate on the relevant matter.

radjah shelduck on November 20, 2007 at 7:59 PM

Ochian: I hope your “correct”!!!!!!!

bucko36 on November 20, 2007 at 8:00 PM

radjah shelduck on November 20, 2007 at 7:59 PM

Exactly. This is the point I’ve been trying to make. The feds have special powers in the federal enclaves that they do not have within any of the fifty states.

And in reality since the venue is Washington DC …. a federal enclave, whatever the ruling from the Supreme Court, it ONLY applies to federal enclaves and NOT the States of the Union.

Maxx on November 20, 2007 at 8:15 PM

Maxx on November 20, 2007 at 7:57 PM

radjah shelduck on November 20, 2007 at 7:59 PM

That’s funny; neither clause 17 nor clause 18, nor any other portion of the Constitution, says anything approaching “This section gives Congress the ability to ignore any other section of this Constitution or any Amendment thereof.” Hence, my reminder on the Tenth Amendment.

Morever, I don’t see anything in the Second Amendment that says anything approaching “This Amendment does not apply to the federal government or territory it controls.” Portions of the Constitution and its amendments that apply solely to the states (and by extension, localities other than DC) invariably specify that.

If Congress, and by extension, the District City Council, could nilly-willy ignore the Constitution, there would be no protection against, say, double-jeopardy, or self-incimination, because there is no specific wording that says that Congress cannot order those rights violated. Odd thing is, those parts of the Constitution apply in the DC city limits.

Have a nice night.

steveegg on November 20, 2007 at 8:24 PM

And in reality since the venue is Washington DC …. a federal enclave, whatever the ruling from the Supreme Court, it ONLY applies to federal enclaves and NOT the States of the Union.

Maxx on November 20, 2007 at 8:15 PM

That’s the first correct thing I’ve seen from you tonight. Of course, since when has that concept stopped the Supreme Court?

steveegg on November 20, 2007 at 8:27 PM

There is ample evidence about the original meaning of the term “free state.” “Free state” was used often in Framing-era and pre-Framing writings, especially those writings that are known to have influenced the Framers: Blackstone’s Commentaries, Montesquieu’s Spirit of Laws, Hume’s essays, Trenchard and Gordon’s Cato’s Letters, and works by over half the authors on Donald Lutz’s list of thirty-six authors most cited by American political writers from 1760 to 1805. It was also used by many leading American writers, including John Adams in 1787, James Madison in 1785 and the Continental Congress in 1774.

Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase “free state” meant at the time. In eighteenth-century political discourse, “free state” was a commonly used political term of art, meaning “free country,” which is to say the opposite of a despotism.

Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.

“State” simply meant country; and “free” almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.

http://volokh.com/archives/archive_2007_11_18-2007_11_24.shtml#1195588709

bnelson44 on November 20, 2007 at 8:44 PM

steveegg on November 20, 2007 at 8:24 PM

This section gives Congress the ability to ignore any other section of this Constitution or any Amendment thereof.” Hence, my reminder on the Tenth Amendment.

Your correct, the wording the Constitution uses in the subject clause is not the wording you use above… but in fact, the wording the Constitution uses, does in fact mean the Feds have full authority to override the Constitution as they see fit within the federal areas. Think of it, a military base is a federal enclave. You can be searched without warrant on a military base. How do you suppose they get away with that? It’s because clause 17 and clause 18 of Section 8, Article 1 gives them that authority. Here is what it says Congress is allowed to do:

Article I, Section 8, clause 17 and 18

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The feds have absolute control in the federal areas. But just because they can override the Constitution in these areas doesn’t mean they alway do.

I’m pretty sure the Supreme Court is going to rule that the Feds can enforce this gun law in Washington DC if they choose to. It’s very important to understand the Feds have no such authority to do the same in any of the Fifty States.

You have a nice day too.

Maxx on November 20, 2007 at 8:45 PM

I live in DC and I can tell you MY second amendment rights did’nt go away when I moved here. No surprise that the home of our federal government would be completely liberal Democrat…and as crooked as they come…unfortunately Marion Barry does’nt even stand out in District government anymore…they are all that bad here…

DCJeff on November 20, 2007 at 8:47 PM

I own several long guns and handguns, and I will not let the government take them away.

Longhorn Six on November 20, 2007 at 6:15 PM

Even if a ruling comes down against the 2nd amendment it doesn’t necessarily mean they will bust down doors and take our guns. The easiest way to destroy the 2nd amendment is the way Rudy tried it: close down the gun manufacturers to eliminate the supply of new weapons and prosecute anybody who uses a weapon in self-defense, putting them away for a long time as an example to the rest of us.

When they arrest somebody for self-defense they will of course confiscate any weapons they find in their home. Even if a person doesn’t commit a crime, but is simply caught in possession of firearms, the penalty will be severe enough to encourage people to turn in their weapons voluntarily and take advantage of the amnesty granted by the government for those who play by their rules.

There will probably be a propaganda campaign demonizing gun owners in the same fashion that marijuana smokers have long been subjected to, and to a lesser extent more recently, tobacco smokers.

My point is that on this type of issue, “Together we stand, divided we fall.”

FloatingRock on November 20, 2007 at 9:34 PM

That’s funny; neither clause 17 nor clause 18, nor any other portion of the Constitution, says anything approaching “This section gives Congress the ability to ignore any other section of this Constitution or any Amendment thereof.” Hence, my reminder on the Tenth Amendment.

Quite so, steveegg, but one might similarly note that the Second Amendment does not say “This Amendment overrides the powers granted to Congress in Article 1, Section 8. (The First Amendment, on the other hand, DOES do this as it begins “Congress shall make no law…”) So we’re back to my basic point: if the Second Amendment and the District Clause get into a fight, who wins? It’s not clear that the Second Amendment is the New England Patriots and the District Clause is the Miami Dolphins. Of course, if your favorite team is the Dolphins, you NEED a gun to shoot yourself!

radjah shelduck on November 20, 2007 at 9:41 PM

I presume you’ve heard of the Tenth Amendment. Allow me to refresh your memory…

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.

The trouble for the Tenth Amendment is the Fourteenth Amendment and that damn commerce clause. I prefer the Tenth over either. Certainly that the Tenth was ratified after the commerce clause means it should take priority, but the same logic implies that the Fourteenth gets priority. I think we could live with this.

thuja on November 20, 2007 at 10:04 PM

Constitution of the Commonwealth of Pennsylvania
Section 21:”The right of the citizens to bear arms in defense
of themselves and the State shall not be questioned.”

Gov. Ed Rendell (D), went before the PA House Judiciary Commitee today to argue for 4 gun restrictions.
The commitee heard his banter, then showed him the door, right quick!

hooptycab on November 20, 2007 at 10:05 PM

I know very little about Constitutional law and certainly cannot speak to it as many of you have. But just from my memory of American history, didn’t the Anti-federalists object to the Constitution because it did not contain a Bill of Rights for individuals? Therefore, wasn’t the Bill of Rights tacked on in order to boost chances of ratification? Sooo, doesn’t the fact that it is a part of an individual bill of rights put the question to bed? Or what am I missing?
Renae on November 20, 2007 at 7:32 PM

You don’t need any history lesson to figure this out; just a remedial comprehension of the English language.

If the right to bear arms were intended to help defend the state, rather than the individual, then it would never have been included in something called “The Bill of Rights” at all; it would have needed a separate subheading like: “The Bill of Obligations.”

In defense of the liberal position though, those two phrases could appear synonymous, despite the fact that they are obviously polar opposites, as long as the person doing the interpreting is a brain-dead, drug-addled moonbat.

logis on November 20, 2007 at 10:17 PM

The trouble for the Tenth Amendment is the Fourteenth Amendment and that damn commerce clause. I prefer the Tenth over either. Certainly that the Tenth was ratified after the commerce clause means it should take priority, but the same logic implies that the Fourteenth gets priority. I think we could live with this.
thuja on November 20, 2007 at 10:04 PM

Nothing in the Constitution “takes priority” over anything. The words mean precisely what they say, or they mean absolutely nothing whatsoever.

When someone tries to claim that the Fourteenth Amendment essentially re-writes everything that comes before it, they are claiming that the Constitution says that I have an individual right to, for example, “Congress shall make no law respecting an establishment of religion…” etc.

That not only does not make any sort of logical sense; it doesn’t even make syntactic sense. That interpretation is not right or wrong; it’s not good or bad; it is simply gibberish.

As for intent, we can only assume that if the citizens who voted for the Fourteenth Amendment meant to completely re-draft the Constitution, then that is what they would have done. But, of course, they did not do that. And to try to turn around and do it now by informal fiat does not in any way “change” the “interpretation” of the Constitution. To do so is to effectively reject the concept of a constitutional form of government altogether.

logis on November 20, 2007 at 10:41 PM

I live in DC and I can tell you MY second amendment rights did’nt go away when I moved here. No surprise that the home of our federal government would be completely liberal Democrat…and as crooked as they come…unfortunately Marion Barry does’nt even stand out in District government anymore…they are all that bad here…

DCJeff on November 20, 2007 at 8:47 PM

Jeff,

I live in NOVA and have to ask are you 100 percent sure about that?

Check out the DC gun laws (pdf warning) for yourself…

F15Mech on November 20, 2007 at 11:27 PM

Jeff this is my favorite…

Subchapter VI. Possession of Ammunition
7-2506.01. Persons permitted to possess
ammunition.

No person shall possess ammunition
in the District of Columbia unless:
(1) He is a licensed dealer pursuant to subchapter
IV of this unit;
(2) He is an officer, agent, or employee of the
District of Columbia or the United States of
America, on duty and acting within the scope of
his duties when possessing such ammunition;
(3) He is the holder of the valid registration
certificate for a firearm of the same gauge or caliber
as the ammunition he possesses; except,
that no such person shall possess restricted pistol
bullets; or
(4) He holds an ammunition collector’s certificate
on September 24, 1976.

Gives a new meaning to speak softly and carry a big stick (because in DC thats all you got).

BTW where are you exactly in DC? That way I can make a anonymous report to the DC police and let them know.

F15Mech on November 20, 2007 at 11:41 PM

We better all join a “well regulated Militia” very soon…

gmoonster on November 20, 2007 at 1:40 PM

Late to the thread, so someone may have beaten me to it but,
“We” are already Militiamen.

Money quote from the link.

…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,…

I believe the 14th Amendment allows me the liberty of he “strike” in quoted material.

soundingboard on November 21, 2007 at 12:15 AM

Pardon me ladies, I should have used two strikes in the last comment.

white male
citizen

soundingboard on November 21, 2007 at 12:20 AM

It’s funny you mention that, I was thinking about that. I’m surprised some weasel anti-gun lawyer hasnt’t figured out a way to institute a back-door gun ban by banning lethal ammo.

reaganaut on November 20, 2007 at 2:19 PM

I believe the late Senator Moynihan offered up a ten thousand percent tax on ammo. Late ’70s? Early ’80s?
A practical, if not literal, ban.

soundingboard on November 21, 2007 at 12:25 AM

amerpundit on November 20, 2007 at 2:30 PM

OK, I’ve said it before, but this time I mean it.
I’ll read ALL comments before runnin off at the fingers.

soundingboard on November 21, 2007 at 12:31 AM

So, if I was a Kentucky citizen, and am a extra long decade past 45 am I then outside the militia and an illegal gun owner?

Limerick on November 20, 2007 at 2:31 PM

Nah. That’s where the term grandfathered comes into play.

soundingboard on November 21, 2007 at 12:33 AM

Well the news gets around lickidy quick! Phone rang about 4pm…..my son in Iraq…whoopie! Hey son- miss you, love you, wanna hug you…yeah yeah yeah dad….he called because he heard the news story and wanted to make sure he got a couple more Sig-Sauers before they were banned. He won’t be home until way after the decision is read. Well at least now I know he has his priorities straight. :) Looks like the local gun store gets another visit.

Limerick on November 21, 2007 at 12:35 AM

soundingboard on November 21, 2007 at 12:33 AM

LOL….thanks…this ol fart needed a good laugh today!

Limerick on November 21, 2007 at 12:36 AM

has Rudy been stronger on the issue than Hillary? I’m not aware that Hillary was a party to the lawsuits against the gun manufacturers as Rudy was. Rudy is worse on the issue than Hillary—that is, unless one is inclined to trust politicians.

FloatingRock on November 20, 2007 at 2:49 PM

Glacier don’t need to be party to no lawsuits.
She brings armored vehicles and chemical weapons to the Party.

Party here.

Party there.

soundingboard on November 21, 2007 at 1:27 AM

Regarding the left…

Hypocrisy anyeveryone!?

E L Frederick (Sniper One) on November 20, 2007 at 2:51 PM

Sorry. But I’m sure I don’t have to explain a target of opportunity to you.

;>

soundingboard on November 21, 2007 at 1:35 AM

Buy Danish on November 20, 2007 at 7:05 PM

Sigh…. if you choose to vote for a less than palatable candidate, that your choice… I WILL not vote for Rudi.

If the Repubs put him up as the candidate? They make THEIR choice.

As to the territory arguement…

First off… even if its on a government reservation, then probable cause rules still apply. You CAN’T for instance, search base housing without a warrant… you CAN’T just pull over a car and search it (unless its random, or you have cause)…

don’t know where you get your facts, but the US Constitution is still in place on Federal grounds.

Crap… by your definition than ALL the Federal property would be an unconstituional zone… like National Parks? BLM Land? sorry… you’re just plain wrong… even the Congress has to follow the Constitution.

Romeo13 on November 21, 2007 at 1:36 AM

Stupid question, but doesn’t the Bill of Rights apply to INDIVIDUALS as well as collectively?

rotorhead on November 21, 2007 at 2:16 AM

. I just saw an espisode of Penn and Teller’s Bullsh*t.

Enrique on November 20, 2007 at 2:40 PM

.

Hey! That was on cable at the Holiday Inn Express I stayed in last night.

soundingboard on November 21, 2007 at 2:32 AM

Cross dressing. Check.

This shouldn’t be considered an endorsement of Rudy, but enough already with the crossdressing theme.

So what if the man’s a prominent member of the Milton Berle Fan Club?

Put it to sleep people.

soundingboard on November 21, 2007 at 2:38 AM

even the Congress has to follow the Constitution.

Romeo13 on November 21, 2007 at 1:36 AM

Will someone please tell them that?

soundingboard on November 21, 2007 at 2:59 AM

I predict the following:

1. The DC ban will be overturned, but because of special circumstances that might not apply anywhere else in the country.
2. Regulation of the ownership of guns will be constitutional, as long as such regulation doesn’t ban guns for DC residents.
3. The decision will be very tightly crafted and will not end the controversy.

Let me expand my point.

What are the “special circumstances?” DC is not a state but a federal enclave, negating the 9th and 10th Amendments. The reason that is the case is because CONGRESS is empowered:

To exercise exclusive Legislation in all cases whatsoever, over such district… (Article 1, Section 8, Paragraph 17)

Not being a state makes it tougher for DC to prevail, IMHO.

I’m predicting that the decision will be not sweeping enough to apply it beyond DC. Chicago’s ban will not fall (though it should).

I’m predicting also that the decision will allow “reasonable” regulation of ownership of handguns including registration.

I’m making these predictions because even if the Court tosses the DC ban (or if they do not), they will avoid like the plague making it a universal overthrow (or upholding) of all gun control laws in the country and will craft it so as to limit it to DC only. Just as they have done 95 other times since 1820 on issues concerning guns and gun ownership. Yes, you read that correctly. Contrary to what the MSM claims, the court has seen the issue some 95 times before, in one form or another. And because they have not given an unambiguous ruling, that’s why the issue isn’t settled.

The legal scholarship over the last 20 years has been almost UNANANIMOUS in finding that the Second Amendment is an individual right that is unconnected with a state militia (and therefore not a collective right). The historical scholarship has similarly shown that this is what the Founders intended. And since Micheal Bellesiles’ so-called “history” was shown to be an outright fraud, there is no opposing view from historians anymore.

The Court reads the papers, and knows that gun control is a failure in DC (after all, they live and work in DC). They also know that 48 states allow some form of legal concealed carrying of handguns. If they don’t know already, they will take judicial notice that gun ownership deters crimes, the pro-gun rights briefs will insure that. They know that there are some 85 million guns owners and 250 million firearms in America (the NRA will insure that). and they will know about the Time Magazine study that claimed that 42% of American households possess one or more firearms.

Sanford Levinson, in his ground breaking law review article The Embarrassing Second Amendment (Yale Law Journal, Volume 99, pp. 637-659) first blew the lid off the “collective rights” theory in a major way almost 2 decades ago. He discusses why the Court is reluctant to rule on the Second Amendment.

You can go read the article, but Levinson lists the type of modalities that go into USSC decisions. They are:

1) textual argument — appeals to the unadorned language of the text; [31]

2) historical argument — appeals to the historical background of the vision being considered, whether the history considered be general, such as background but clearly crucial events (such as the American Revolution). or specific appeals to the so-called intentions of framers; [32]

3) structural argument — analyses inferred from the particular structures established by the Constitution, including the tripartite division of the national government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order; [33]

4) doctrinal argument — emphasis on the implications of prior cases decided by the Supreme Court; [34]

5) prudential argument — emphasis on the consequences of adopting a proferred decision in any given case; [35]

6) ethical argument — reliance on the overall “ethos” of limited government as centrally constituting American political culture. [36]

Knowing what these are can give insight on how the court might rule.

On issue of the Second Amendment, all but the “prudential” argument clearly and I think, unambiguously, favors the NRA’s position and the position of right to keep and bear arms advocates. DC’s only argument is that irrespective of anything else, that their ban has lowered violent crime, or so they indicated in the earlier cases. No doubt they will claim that tossing the ban will result in “blood in the streets.” Neither argument holds water, in point of fact. See John Lott’s “More Guns, Less Crime.”

Logic dictates that the USSC will see things gun owner’s way, but ideology seems to count more with the liberal “living document” justices than logic or Founder’s intent. Accordingly, I’m thinking that it will be a 5 to 4 decision. And, as usual, it will depend upon that certain “swing vote.”

Therefore, for gun owners, this is a crap shoot.

Regardless how it ends up, the struggle between gun owners and gun grabbers will go on.

georgej on November 21, 2007 at 6:20 AM

$64,000 Question: If the gun ban is overturned, will the crime rate in D.C. go up or down?

SoulGlo on November 21, 2007 at 6:26 AM

The legal scholarship over the last 20 years has been almost UNANANIMOUS in finding that the Second Amendment is an individual right that is unconnected with a state militia (and therefore not a collective right)

The ‘Militia’ back then was every able-bodied male over 17.

oh, and it still is… Here is the current us code

TITLE 10 > Subtitle A > PART I > CHAPTER 13 >
§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

who might the “unorganized militia” be?

I always tell people that if you want to understand the 2nd Amendment… read the delcaration of independence first, then read the Bill of RIGHTS…
paraphrased…
“Democracy is three wolves and a sheep deciding on what to eat for dinner, Freedom is an armed sheep contesting the outcome” – I forgot who said this…

BadBrad on November 21, 2007 at 6:42 AM

SoulGlo

shame on you for bring this meandering thread to a point :)

EricPWJohnson on November 21, 2007 at 6:43 AM

That is because you State Constitution is granting you MORE rights than the Federal Constitution and not LESS. Therefore your State Constitution is not impacted by such a ruling. This concept is well established in American jurisprudence.

Maxx on November 20, 2007 at 4:07 PM

Just a clarification: Governments do not “grant” a citizen his rights, they can only restrict or remove them.

Texas Nick 77 on November 21, 2007 at 6:57 AM

Constitution of the Commonwealth of Pennsylvania
Section 21:”The right of the citizens to bear arms in defense
of themselves and the State shall not be questioned.”

Gov. Ed Rendell (D), went before the PA House Judiciary Commitee today to argue for 4 gun restrictions.
The commitee heard his banter, then showed him the door, right quick!

hooptycab on November 20, 2007 at 10:05 PM

Good for them, better for the citizens of Pa.

Texas Nick 77 on November 21, 2007 at 7:36 AM

Oh, man! I ignored this thread yesterday, unwittingly trying to make a living. And here people are ranting and raving, buying guns and ammo, shooting the confiscators, cold dead hands, etc.

This is anarchy. Great fun.

Jaibones on November 21, 2007 at 8:11 AM

Guess I better get some guns and ammo.

Jaibones on November 21, 2007 at 8:11 AM

“Democracy is three wolves and a sheep deciding on what to eat for dinner, Freedom is an armed sheep contesting the outcome” – I forgot who said this…

BadBrad on November 21, 2007 at 6:42 AM

Thanks. Copied to my HD.

JiangxiDad on November 21, 2007 at 8:45 AM

Since militias are a tool used by the states to defend themselves from aggression by the federal government, it’s up to the states themselves to decide how “well regulated” they want their militias to be. If Texas wants every man to have the right to own a gun in his home, so be it; if D.C. wants to make it a collective right, so be it. -Allahpundit

Let us be clear. There are two issues here.

One is the individual’s federal right to own weapons (ie: Firearms).

Two is the states’ rights to have a militia.

The issue of state militias is moot if citizens not otherwise employed by the government in a military or law enforcement role are not allowed to own firearms.

Bottom line folks, this isn’t about militias. This is about individuals owning firearms.

It is the ability of the average individual to defend themselves with prejudice that most scares the Marxists (ie: Hillary Clinton) and other socialist movements active within our political system.

So, yeah, this is a big deal.

Lawrence on November 21, 2007 at 9:22 AM

No, there are three issues here, and they are the three laws in question. It’s far more limited than you think. My analysis is here: http://pun.org/josh/archives/2007/11/what-happens-when-the-supreme-court-rules-on-district-of-columbia-v-heller.html

shirgall on November 21, 2007 at 10:28 AM

Hmmm….

Regulated… ie following regulations… ie under the rule of law.

BadBrad on November 21, 2007 at 6:42 AM

Hmmm… theres the Regulation… regulating the Militia.

Only problem is a lawyer reading this will say that therefore you have to be a Male between 17 and 45 (lets me out… I’m 48) or a Female in the “organized militia” to be able to own and carry a gun.

One of the provinces of the Congress, that they seem to have forgoten, is that they can by legislation DEFINE terms in the Constitution… which in this case they have by “Regulating” the militia.

Romeo13 on November 21, 2007 at 10:37 AM

…I’m guessing if the Court does declare the Second Amendment a collective right you’ll be seeing both parties’ nominees take the federalist approach of letting the states regulate it.

Update: In fact, now that I think of it, it’s not out of the question that Kennedy would join the conservatives if they interpret the provision in a federalist manner.

posted at 1:30 pm on November 20, 2007 by Allahpundit

I know I should feel encouraged by the fact that Constitutional debate is actually taking place in the Supreme Court for the first time in decades…

But I keep feeling appalled instead. Here we have Justices tentatively broaching the issue of federalism as if it’s some spanking new legal theory that was just invented ten minutes ago: “Golly, maybe we can apply a ‘federalist’ approach to this case and just see what happens. What the heck, I guess we can try any thing once!”

I know I should try to look at this positively and say, hey, at least it’s a start. But I just can’t help but recall that the start actually took place over two hundred years ago. This is what people must have felt like during the Dark Ages: watching the “wise men” struggle to re-learn what children used to consider common knowledge.

logis on November 21, 2007 at 10:45 AM

Just a clarification: Governments do not “grant” a citizen his rights, they can only restrict or remove them.
Texas Nick 77 on November 21, 2007 at 6:57 AM

If WE, THE PEOPLE allow them

mile66 on November 21, 2007 at 11:51 AM

I have not read all of the thread, but there are some interesting statements and legal theories popping about.

No one really made an issue when SCOTUS said:

* You no longer have proerty rights (Kelo v New London) …
* The right to kill the unborn is embedded in the Constitution (Roe v Wade) …
* The state has a compelling interest to suspend the 4th Amendment (plethora …) …

I would suspect that this “Nation of Cowards” and “Compliant Authoritarians disguised as Conservatives” will bend the knee and submit to kiss the hand that feeds them when SCOTUS tells them to turn in their guns.

Thinking back across American Independance history – foregoing all of the ludicris legislative crap the British Crown instilled upon the Colonies, the fact is, when the British marched toward Lexington and Concord, the purpose was to disarm the locals. Disarm the population and their resistance is muted.

Regarding the “from my cold dead hands” position in the thread; Have you calculated the cost or is this just empty bold talk?

Should you assume this position … You might not be in your warm house every night. Slept in the cold recently? Your family still needs food. How will you provide? You have a house payment due. Willing to stick it out, maybe lose the house? The friendly neighbors you used to frequently chat with … they are users of the new snitch line the government set up. Willing to place a MilDot on a neighbor, or a state agent? What preparations have you made?

We are talking about your liberty.

This coming decision regarding the 2nd Amendment is a very serious issue. Free men own weapons. Slaves don’t. Federal enclave or not.

If your inalienable right to bar arms is “redacted” by federal authorities … do you really think the States will honor it? States like New York, New Jersey, Illinois, Kansas, California … Let us know how that works out for you.

During the War for Independance, a more organized militia existed. Considering the ridicule a “militia” receives today, how will you form and organize tomorrow? Do you even own a firearm? In the electronic age, are you knowledgeable in communication?

When the “rush to Red States” occurs … Will you stand on principle by your neighbor or look to the local authorities to protect you?

Are you a concealed carry holder? Be forewarned … You are on an easily accessible list … surely the state will have “compelling interest” pay you a visit to “examine” your property.

The public schools don’t teach civics anymore … Do you teach your children about the costs of liberty … or the sacrifices in liberty for (perceived) security.

I imagine that most that may have read this far are rolling thier eyes at the ‘whack job’ post. But, my family knows the value and cost of liberty.

Should the decison come down to a collective right, or an individual right with a boatload of inane requirements … all I have to say is “Molōn labe!” and “Best of luck” to the state agent coming up my neck of the woods.

AZ_Redneck on November 22, 2007 at 3:05 AM

I suddenly feel the need to go buy that fully automatic AK47.

DannoJyd on November 22, 2007 at 10:20 AM