SCOTUS Opportunity on 2nd Amendment today

posted at 1:55 pm on March 18, 2008 by Ed Morrissey

The Supreme Court hears arguments today on the Washington DC gun ban, a case that presents the biggest opportunity in 70 years to define the application of the 2nd Amendment. Is the right to keep and bear arms an individual right, or a right of communities to arm themselves only in the context of organized militias? John Lott takes a look at the issues involved and the opportunity the Court has to settle the long-running argument:

A Gallup poll in February found that 73 percent of Americans believe that Second Amendment protects an individual right. On top of that, 305 members of Congress, 31 states, and the Department of Justice all make the same claim. Support is bipartisan. On the other side, only a minority of Democrats — 18 members of congress and attorney generals from five states — signed briefs arguing that it isn’t an individual right.

Even among presidential candidates, Hillary Clinton, John McCain, and Barack Obama all reach the conclusion that there is an individual right to owning guns. Prominent liberal Democratic legal academics such as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached similar conclusions.

Perhaps all this is not surprising given that the Second Amendment is part of the Bill of Rights, and everyplace else in the Constitution that discusses “the right of the individual” the Supreme Court has consistently interpreted this phrase to mean precisely what it seems to mean, that an individual right, not the right of the government, is protected. Even if there were any remaining doubt, the debate over the 14th Amendment, which applies the Bill of Rights to the states, made it clear that Congress wanted to protect blacks against Southern states that were trying to disarm them after the Civil War.

Yet, all that agreement hides a very significant difference. The debate today will likely be over what protection is given this individual right.

Some, such as the vice president, the 305 members of Congress, and the 31 states, want to treat the Second Amendment like the rest of the Bill of Rights, requiring the same hurdles for the government to justify that a regulation is “reasonable.” Others, such as the Bush Department of Justice, argue that an “unquestionable threat to public safety” from unregulated guns requires that a lower standard must be adopted. Strongly hinting that D.C.’s handgun ban and requirement that long guns always be kept locked and unloaded could be upheld under this lower standard.

The split in the Administration and in Congress mirrors the split in the nation on this question, but it really isn’t that difficult. The rights enumerated in the first eight amendments to the Constitution all reflect individual rights. In fact, that was the entire purpose of the Bill of Rights — to address the rights of the individual, as the main document reflected the interests of the states in relation to the federal government and the structure of the federal government instead.

Will the Court finally acknowledge this? The language remains as clear as when it was written, as does the context of the 2nd Amendment’s inclusion in the document. It will deal a body blow to efforts to ban weapons, especially as designed in Washington DC. Lott engages in the argument about whether the ban has been effective — clearly, it has not — but that’s a secondary argument. A court interested in judicial modesty will recognize that DC violated the 2nd Amendment and simply uphold the lower court’s rejection of it.

We’ll see if we have that kind of court. In the meantime, we may ask why the Bush administration has decided to argue on behalf of an unconstitutional infringement of gun rights. John Lott will appear on Thursday’s Ed Morrissey Show to discuss this issue and the arguments at the Court today.


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How the Supreme Court rules is irrelevant to me. I am armed and I will stay armed.

The Second Amendment’s purpose is to fight tyranny. And, jackbooted thugs, coming into my house, for the purpose of disarming me, is tyranny.

OhEssYouCowboys on March 18, 2008 at 1:58 PM

I don’t think it would be a good idea for the court to try to take our guns away from American’s. There would be gobs of mad people.
L

letget on March 18, 2008 at 2:01 PM

Here in NC we chuckle. Good luck with that gun thingy!

Suburbandad on March 18, 2008 at 2:03 PM

The Supreme Court hears arguments today on the Washington DC gun ban, a case that presents the biggest opportunity in 70 years to define the application of the 2nd Amendment. Is the right to keep and bear arms an individual right, or a right of communities to arm themselves only in the context of organized militias?

the other question is if its a States Right issue. As it currently stands, its a Federal Govt. issue only, the Feds can’t ban guns….nothing about State or Local Govts. in that Constitutionally. Which is the crux of the issue, will they incorporate the 2nd Amendment to apply to the 14th…

jp on March 18, 2008 at 2:06 PM

Someone needs to explain to lefties that “well-regulated militia” means “U.S. armed forces.” The founders knew that the new U.S. nation would need an army and navy, etc., but they didn’t want the armed forces to be able to disarm the people, as the British Army had attempted to do with the colonists.

Enrique on March 18, 2008 at 2:06 PM

The 2nd Amendment and all Rights are Rights of the People. The gov’t doesn’t have Rights, the govt has powers and they already have the power to create an Army in the Constitution, they don’t need the Right to do such.

Yakko77 on March 18, 2008 at 2:06 PM

the case is actually about states rights to regulate the firearms laws

Its not about the 2nd- the 2nd is addressed solely due to the fact that its a DC case and the only Federally governed municipality

I wouldn’t expect anything earthshaking from it – I’ve seen some pretty stupid “what IS IS” arguments from the right on this.

The constitutions pretty clear that the well regulated militia is the reason for individual gun ownership

Otherwise they would have left that little sentence out

But hey we will debate it for another thousand years

EricPWJohnson on March 18, 2008 at 2:07 PM

How the Supreme Court rules is irrelevant to me

Ditto.

Because they have no constitutional authority to ‘rule’. They are not kings.

I left that bullshit behind me many years ago.

LimeyGeek on March 18, 2008 at 2:07 PM

Someone needs to explain to lefties that “well-regulated militia” means “U.S. armed forces.”

Not necessarily.

“Well regulated” can refer to unorganised militia (civilians) in the context of background checks (only lawful members of militia please) and laws regarding the carriage of guns (slung/holstered).

“Well regulated” does not include seeking government permission to carry a gun with a permit.

LimeyGeek on March 18, 2008 at 2:11 PM

Illinois knows I’m a gun owner as I’m required to have a Firearms Owner Identification Card.
I’ve always said, when it comes time to surrender my firearms to the State Police, feel free to come get them.
Yep.
Bring it.
But make sure you bring enough.

CBarker on March 18, 2008 at 2:12 PM

But hey we will debate it for another thousand years

EricPWJohnson on March 18, 2008 at 2:07 PM

I will be very surprised if America (as the Founding Fathers knew it) exists in 100 years, let alone 1000.

It could even be argued that they would find it unrecognisable today.

LimeyGeek on March 18, 2008 at 2:13 PM

I think they’re going to rule that it’s an individual right, but that states have the ability to impose reasonable restrictions on that right. The DC gun ban will be struck down, because it’s an unreasonable restriction on the second.

That’s my prediction.

Slublog on March 18, 2008 at 2:14 PM

Which is the crux of the issue, will they incorporate the 2nd Amendment to apply to the 14th…

jp on March 18, 2008 at 2:06 PM

“Incorporation” is a judicial philosophy, not a constitutional principle (ie. there is nothing about “incorporation” in the document itself).

It isn’t necessarily a bad philosophy, but it does leave the door open for subjective and ideological perversions if we’re not careful.

LimeyGeek on March 18, 2008 at 2:16 PM

I would have preferred a stronger advocate than Alan Gura…I think he threw gun owners under the bus several times in his arguments. But overall the outlook is pretty good for this case coming down on the individual rights side of things.

JohnTant on March 18, 2008 at 2:17 PM

Just remember: for those of you not Active/Reserve/NG, you’re still part of the unorganized militia. Part of the legacy of Lexington and Concord.

TheEJS on March 18, 2008 at 2:17 PM

states have the ability to impose reasonable restrictions on that right

“Shall not be infringed” = “subject to reasonable restrictions” ?

American english must be a more curious beast than I ever imagined.

LimeyGeek on March 18, 2008 at 2:17 PM

After hearing Alan Gura speak in defense of the RTKABA, I must say we are screwed.

roxer on March 18, 2008 at 2:18 PM

LimeyGeek on March 18, 2008 at 2:17 PM

Wouldn’t surprise me at all if that’s the ruling.

Slublog on March 18, 2008 at 2:19 PM

1) All 10 amendments forming the Bill of Rights reflect individual rights, Ed. 9 & 10 address individual AND state rights.

2) There is no room in the Bill of Rights for the argument that while the Fed can’t ban guns, the State can. That just turns intent on its head, it’s like saying the Federal government can’t station soldiers in your house (3rd Amdt), but the State can.

3) There is ample evidence of what the founders meant when they wrote those words, and yet people constantly “debate” their meaning? Unless you just believe that the Constitution should be toothless, how can this happen unless the arguer is dishonest or just ignorant?

That’s the worst part of the “debate,” the fact that 90% of every discussion is spent debunking the SAME DAMNED LIES over and over and over…

IME “control” advocates run about 95% dishonest. I used to actively debate RKBA issues online a LOT until I just got sick of the same pattern of lies and stupid debate tricks (usually running away claiming victory over their shoulders).

Just start your campaign to repeal the 2nd, control freaks, it’s the only honest thing to do. Mind you, you’ll probably have to repeal 4, 5, 9, and 10 to get it done, but you can’t make an omelet without breaking a few eggs.

Merovign on March 18, 2008 at 2:21 PM

“The constitutions pretty clear that the well regulated militia is the reason for individual gun ownership.”

Obviously you are unfamiliar with the concept of precatory language. Even Ruth Bader Ginsberg has helld that Precatory language does not control or bind.

Here is an example ” A well educated citizenry being necessary for an enlightened State, the right of the people to keep and read books shall not be infringed.”

Anybody think that well educated or enlightened has anything to do with the specific staking out of the people’s right to keep and read?

It is intellectually dishonest to try to make the argument that the precatory language controls the specific enumeration of a protected individual right in this instance only. Furthermore, people should be very careful of the Pandora’s box that will be opened if such is accomplished

America1st on March 18, 2008 at 2:22 PM

Wouldn’t surprise me at all if that’s the ruling.

Slublog on March 18, 2008 at 2:19 PM

Sadly, me either.

It would confirm that the constitutional rule of law had been corrupted to the point of being just another political/ideological mud wrestle.

LimeyGeek on March 18, 2008 at 2:23 PM

Anything the District of Columbia approves as far as legislation goes, is bound to be completely idiotic. The place is a third world country that would be a low minor league city, if not for the cash and jobs the feds pump into the economy.

And DC perfectly illustrates why gun bans, particularly when “enforced” by incompetent and corrupt liberal Democrats, do not work.

The criminals who infest DC ignore the laws and why not? What do they get when the violate the laws, a pat on the head and a plead not to do it again.

The criminals are actually rational. They don’t cross the bridge over into Virginia to commit crimes, because the few times that they have, they’ve been arrested, convicted and sent to prison for hard time and sometimes executed.

DC rarely enforces the law. The police department is too corrupt and incompetent and the court system is in the same condition.

NoDonkey on March 18, 2008 at 2:24 PM

Here’s Wisconsin’s take.

The Court should leave intact its precedents hold-ing that the Second Amendment applies only to the federal government, not to state governments.

Moreover, by leaving Presser v. Illinois, and United States v. Cruikshank, intact, this Court will forestall federal infringement on state-created rights of individuals to keep and bear arms for nonmilitia purposes and simultaneously preserve the right of each state to decide for itself the scope of that right (as Wisconsin has done by constitutional amendment) and to regulate or punish, without federal interference, the negligent or intentional misuse or abuse of firearms

Do the States have the same “right” to regulate Speech, Religion, and the Press?

jaime on March 18, 2008 at 2:25 PM

Slightly OT, but SCOTUS related, what has become of the Ohio voter ID case? I suspect theres been no ruling, nothing new posted anywhere for quite awhile.

dmann on March 18, 2008 at 2:26 PM

I have never understood how any clear thinking, logical person could believe that a right that is a part of the Bill of Rights would not grant that right to all citizens; not the state, the militia or some other entity. I do not believe it is an absolute right anymore than the freedom of speech is absolute, but it is plainly an individual right to bear arms.

amr on March 18, 2008 at 2:26 PM

Even if the DC ban is stomped, what then? You can own handguns and long arms loaded and ready for use in your home – but what about concealed-carry? DC desperately needs to play catch-up and enact CC law to combat the raging street crime problem it has.

In fact, as a federal enclave, it should be the first to enact national reciprocity.

Did somebody spike my lunch with acid?

LimeyGeek on March 18, 2008 at 2:27 PM

How the Supreme Court rules is irrelevant to me. I am armed and I will stay armed.

The Second Amendment’s purpose is to fight tyranny. And, jackbooted thugs, coming into my house, for the purpose of disarming me, is tyranny.

OhEssYouCowboys on March 18, 2008 at 1:58 PM

How true.

Viper1 on March 18, 2008 at 2:27 PM

Merovign on March 18, 2008 at 2:21 PM

being that a State can or can not impose laws on weapons, is up to the voter.

You forget something.. we the people of the US and out States ELECT the people into public office who vote on the laws they deem we want them to vote or write into law.

Now if you have a law maker aka legislature body signing a gun ban for your State. You can impeach him/her for ethical violations of the Rights which ALL States have as well. Check it out sometime …. since all Capitals as well as Court houses have a Statehood Bill of Rights as well as the Federal Bill of Right hanging SOMEWHERE int hat building.

Every court house I have ever been to has them.

upinak on March 18, 2008 at 2:29 PM

upinak on March 18, 2008 at 2:29 PM

So what you’re saying is that a State could require that only one particular Religion be practiced withing its boundaries.

I’m not disagreeing with you, just asking.

jaime on March 18, 2008 at 2:35 PM

upinak on March 18, 2008 at 2:29 PM

Yup. Depends on the state. My state (Maine) has two provisions that protect gun-owning citizens – the declaration of Natural Rights:

Section 1. Natural rights. All people are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.

Then there’s article 16:

Section 16. To keep and bear arms. Every citizen has a right to keep and bear arms and this right shall never be questioned.

I would think many states have similar language in their own documents.

Slublog on March 18, 2008 at 2:35 PM

Here is an example ” A well educated citizenry being necessary for an enlightened State, the right of the people to keep and read books shall not be infringed.”

Anybody think that well educated or enlightened has anything to do with the specific staking out of the people’s right to keep and read?

It is intellectually dishonest to try to make the argument that the precatory language controls the specific enumeration of a protected individual right in this instance only. Furthermore, people should be very careful of the Pandora’s box that will be opened if such is accomplished

America1st on March 18, 2008 at 2:22 PM

In simpler terms, the ‘well regulated militia’ is the why, not the how.

James on March 18, 2008 at 2:36 PM

Anyone who argues the meaning of “well-regulated” or who was intended to have the right….

Well, you’re either a damned liar or just too God-damned lazy to spend five minutes researching the subject, and I wish people like that would shut the Hell up.

I can foresee us led into violence and even destruction because of selfish, ignorant MORONS who just blather on constantly having not even the faintest idea what they’re talking about.

READ the Federalist papers (you should have done so in school, but that’s another painful argument), READ just a little of the early Congressional Record (all this stuff is available with a simple internet search).

It is SO DAMNABLY OBVIOUS that if you’ve been arguing National Guard or States Rights and you’re an honest person you will feel like an idiot for having done so.

The founders told us, again and again, what they meant. This is perhaps the MOST obvious Amendment in terms of interpretation, and yet it is subject to the most flim-flammery, distortion, and just plain mendacious blather of any part of the Constitution with the possible exception of the Commerce clause.

If the MSM wasn’t on the control freaks’ side, we would never be in this position, because when a control freak got on the air and made one of their inane claims, an HONEST interviewer or reporter would POINT OUT that what they were saying was incorrect, and if they repeated it, brand them as a liar.

Lies have become socially acceptable, at least in media circles, and more than anything THAT is what’s going to doom us. Yeah, people have always lied, but it wasn’t always the National Pastime.

Merovign on March 18, 2008 at 2:36 PM

upinak on March 18, 2008 at 2:29 PM

Your post wasn’t entirely clear, but you seem to be suggesting that a State has the power to simply upend the Bill of Rights at a whim – which is pretty clearly NOT what the founders intended.

Go ahead and apply that standard to the First Amendment, and then get back to us – or not, if you’ve lost the right to free speech.

Merovign on March 18, 2008 at 2:39 PM

Don’t care either way. Pity the poor bastard who tries to physically take my guns away.

amerpundit on March 18, 2008 at 2:41 PM

I, too, will not change my habits (or responsibilities) as a result of this case, but am hoping for our freedoms to be reinforced nevertheless. I have also left this “debate” far behind. I am my family’s personal bodyguard and protector, and no lawman or thug can absolve me of this responsibility. We must always remember that many early Americans were willing to die rather than give up this right. Why should I be different? Why should my life be worth more than theirs? It isn’t, I’m not, and I will if need be. We all want to be here for our children, but there are reasons worth dying. We can’t all live to see our kids reach old age. If I die before then, I want them to remember me with the utmost pride. But hey, that’s just me, I’m a freedom nut and I refuse to live on my knees or in fear of criminals. Regardless of the fight, I want to die fighting for something I believe in. There’s no honor in dying on a ski slope, or heart disease, or drunk driver, or hospital error, or…you get the picture. That leaves your kids no pride.

freedom_nut on March 18, 2008 at 2:41 PM

Who wants to join the HotAir Militia!

Send your Application to Allah!

GoodBoy on March 18, 2008 at 2:43 PM

Without the 2nd Amendment, the following would be impossible. Whom thinks that the founders abdicated this right, I don’t! And who thinks that this would be possible without the individual right to own handguns? The founders gave us our freedom and the means to defend it from foreign and domestic sources. Probably not an argument that any sane person would make to a government official though ;)

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

rgranger on March 18, 2008 at 2:46 PM

jaime on March 18, 2008 at 2:35 PM

The State is a smaller entity of the Federal Gov. We are little Nations inside a bigger Nation. All States adopted a similar Bill of Right, a little bit different in wording to include the States name… but almost EXACTLY the same as the Original Bill of Rights. Check out your States Bill of Rights (not the ammendments) one time.

Merovign on March 18, 2008 at 2:39 PM

I am sorry if you don’t understand my wording unlike the others in here. Not my problem if you don’t understand laws and how they work and how States adopted their own version of the federal Bill of Rights.

Slublog on March 18, 2008 at 2:35 PM

Hey I am just stating a fact, some people don’t seem to understand those you elect can screw you or help you.

Which as you and I know can screw with laws and the Rights of a States. Heck I can think of 3 States that it is like pulling hair to get a gun legally.

upinak on March 18, 2008 at 2:47 PM

And the interesting part is that this isn’t a partisan issue. I know several Democrats who would be standing beside me (in a literal sense) fighting for the right.

amerpundit on March 18, 2008 at 2:49 PM

upinak on March 18, 2008 at 2:47 PM

My point was to say that I will bet many state constitutions have language that protects the individual right to own a firearm that people are not aware exist. State courts have done quite a bit of damage on this front.

Slublog on March 18, 2008 at 2:50 PM

amerpundit on March 18, 2008 at 2:49 PM

As would I. Makes you wonder huh.

upinak on March 18, 2008 at 2:50 PM

LimeyGeek on March 18, 2008 at 2:27 PM

I thought I was the only one mulling over the concealed carry issue in DC. Glad you pointed this out Limey!

bernzright777 on March 18, 2008 at 2:50 PM

Slublog on March 18, 2008 at 2:50 PM

Depends on the State. My State has some laws concerning concealment due to public buildings, which I have no problems with, such as schools. But all in all there are no real gun laws here and I like it that way. If they pass a law about having a gun in a State park I will start throwing tantrums of course.

upinak on March 18, 2008 at 2:52 PM

rgranger on March 18, 2008 at 2:46 PM

It’s a shame that most sheeple have bought into the idea that the 2nd Amendment supports “reasonable restrictions” such as effectively placing automatic weapons beyond the reach of most people (they are not illegal, if you were going to ask), ditto grenades, launchers, heavy weapons etc. These are effectively reserved for use by the military and para-military (police).

Back in the day, the Brits did a similar thing to colnists, by shipping them the crappest firearms while keeping the latest’n’greatest for themselves, thinking that having better guns would mean military superiority. They were nearly right, too, bu they didn’t count on colonists using these crappy guns day-in-day-out as part of their lives, and becoming f’ing good with them.

LimeyGeek on March 18, 2008 at 2:52 PM

John Lott is a great guest on Ed’s show.

RushBaby on March 18, 2008 at 2:53 PM

The right to keep and bear arms was an assumed right even prior to our government being formed. This right was never granted by the government nor can it be legally taken away by the government. The second amendment was written specifically saying that individual right shall not be infringed by the government.

DCs strictest gun laws in US = Higher gun crimes in US

trs on March 18, 2008 at 2:54 PM

This right was never granted by the government nor can it be legally taken away by the government

Tangent – there is a school of though that states that rights can never be truly ‘taken away’ – they can only be suppressed.

LimeyGeek on March 18, 2008 at 2:58 PM

My State has some laws concerning concealment due to public buildings, which I have no problems with, such as schools.

I have some issue with that, and I think it’s the next battleground for gun rights advocates. If the court rules that the second amendment protects an individual right, the reaction from the left is going to be on the state level – you’ll see “firearms policies” drawn up by schools, universities and other public organizations that will limit where gun owners are allowed to have their firearm.

The next step will be challenging the legality of those rules based on what the court says. If mass shootings in public places have taught us anything, it’s that we cannot count on the police to protect us from those who wish to do great harm on a large number of people.

Slublog on March 18, 2008 at 2:59 PM

DCs strictest gun laws in US = Higher gun crimes in US

trs on March 18, 2008 at 2:54 PM

It was either Breyer or Souter who was floating the idea of a gun ban as a response to a general public need. He brought up the idea of storage requirements in revolutionary-era Boston to safeguard against fires as an example. He then extrapolated to storage requirements in modern-day DC to safeguard against crime. It would have been nice if Gura had pointed out that storage requirements could worsen the very public need that they are intended to mitigate.

Between this, the “machine-gun” issue (Gura could have easily pointed out that the reason “machine-guns” aren’t in common usage isn’t because they aren’t “arms,” but because they are already highly regulated…) and the eagerness to embrace a licensing scheme, Gura didn’t do our side very many favors in his argument.

JohnTant on March 18, 2008 at 3:04 PM

Merovign,

To add to what you have said, most folks, and by that I include those arguing either side of the issue in court, mis-read the term “well-regulated”. The term has nothing to do with “organised”.

“Regulated”, or “regulations”, as understood when discussing weapons, militia, etc, means “trained” or “instructed” as in how to load and use their weapons, how to care for them, etc. The best example is the title of Baron Von Steubens manual for the training of Washington’s Army, which he had devloped at Valley Forge “Regulations for the Order and Discipline of the Troops of the United States:

Even a cursory reading of the original manual will show that it’s primary function was to teach men how to keep, operate, and care for their weapons. This, then, is the real meaning behind the words “well regulated”. It means well trained, competant.

What I read into the 2nd Ammendment, based upon he above, is that the founders desired that the people should pprivately keep their arms, and that they should be well-trained, by the government, in how to keep and maintain them, and how to operate them when needs be. It means, to me, that I own the firearm of my choice, and that it is the govern,emt’s responsibility to provide the marksmanship training, and the training to keep and care for my weapons, in order that I can competantly use my firearm when circumstances compel me to such use.

“Regulated” does not mean what so many think it does….

Respects,

AW1 Tim on March 18, 2008 at 3:05 PM

Slublog on March 18, 2008 at 2:59 PM

I agree, I am all for Teachers having guns if they go thru the process and a psych eval. Children carrying guns… hmmm no.

upinak on March 18, 2008 at 3:07 PM

If it goes the wrong way, shouldn’t that mean the states are constitutionally required to institute citizen militias? That would seem the only other way to “parse” the amendment (not that it doesn’t require a certain degree of willful illiteracy): Either individuals are free to arm themselves as they will, or militias are unequivocally “necessary to the security of a free State.” Would I be able to sue Texas for denying me both security and freedom by not offering a militia I could join?

Blacklake on March 18, 2008 at 3:08 PM

I agree, I am all for Teachers having guns if they go thru the process and a psych eval. Children carrying guns… hmmm no.

Wouldn’t happen. Most states have an age limit for a concealed carry permit.

Slublog on March 18, 2008 at 3:11 PM

Blacklake on March 18, 2008 at 3:08 PM

The only State I know who actually has it own Militia is Alaska. It is a actual State Militia due to WWII and asking the native Americans to help because of the japanese who over took some islands and the men who lived in Alaska were called for duty else where.

It is still in play to this day and has never been stripped.

upinak on March 18, 2008 at 3:11 PM

Wouldn’t happen. Most states have an age limit for a concealed carry permit.

Slublog on March 18, 2008 at 3:11 PM

It wasn’t so long ago that there was no age limit on purchasing firearms – even explosives. You could mail-order the stuff.

Did we see any Columbines then?

LimeyGeek on March 18, 2008 at 3:17 PM

upinak on March 18, 2008 at 2:47 PM

I’m not the only one who “misunderstood” you.

If you don’t write clearly, you need to accept that you won’t be read clearly.

In either case, the 2nd isn’t a “States’ Rights” issue, at least not if you take the Constitution as written. Of course, States, like agencies of any Government, love to arrogate powers they don’t properly have.

Best of luck impeaching State officials one-by-one for that, though I’m not sure how much hope you can place in the Supremes as an alternate solution.

At least there’s a possibility they will rule correctly, though after Kelo…

Merovign on March 18, 2008 at 3:23 PM

Here in NC we chuckle. Good luck with that gun thingy!

Even here in Kalifornia, I suspect that if the Court rules the wrong way on this one there will be a lot of people suddenly “losing” their guns.

steadyrock on March 18, 2008 at 3:24 PM

I think they’re going to rule that it’s an individual right, but that states have the ability to impose reasonable restrictions on that right. The DC gun ban will be struck down, because it’s an unreasonable restriction on the second.

That’s my prediction.

Slublog on March 18, 2008 at 2:14 PM

Which would result in some statewide bans and confiscation such as would be the case in Ca.
Some states would consider such a ruling the go ahead sign to remove firearms from civilians.
The application of Federal law would be very inconsistent.

Speakup on March 18, 2008 at 3:24 PM

Did we see any Columbines then?

Not as many, no, but school shootings are not just a recent phenomenon. They have become more frequent in recent years, though.

But I think we’re talking of a problem with culture, not with gun ownership. Columbine didn’t happen because of gun laws.

Slublog on March 18, 2008 at 3:27 PM

Hmmmm… seems to me that most people object to 18 year olds carrying firearms because they feel that they can’t trust them. Perhaps that’s due to the government shirking their responsibility for a well regulated (read- TRAINED) militia (typically defined as any able-bodied person, age 18 and older)…

dominigan on March 18, 2008 at 3:27 PM

upinak on March 18, 2008 at 2:47 PM

So a State could amend its constitution to forbid all but the Christian religion and the Federal Government would have nothing to say about it? OK. And the State could mandate just one denomination, say Anglican. OK. Also, a State could control that religion by appointing its leaders through a State constitutional amendment. OK, I get it.

jaime on March 18, 2008 at 3:28 PM

Pardon my sounding like a bumper sticker, but gun control for me means hitting your target.

Sekhmet on March 18, 2008 at 3:31 PM

Not as many, no, but school shootings are not just a recent phenomenon

I’d like to see the data that leads you to believe this.

But I think we’re talking of a problem with culture, not with gun ownership

At some level, I think they can become intertwined. Need I point out the macabre deification of guns in so-called “gangsta nigga” culture?

Columbine didn’t happen because of gun laws

Difficult to place blame on some written words. It did happen in spite of those same gun laws, however.

LimeyGeek on March 18, 2008 at 3:33 PM

I’d like to see the data that leads you to believe this.

Right off the top of my head, University of Texas at Austin in the 60s, and a shooting at a college library in California in the 70s. The Texas case is actually an argument for allowing concealed carry on campus, though, since students with firearms were able to provide covering fire that allowed other students to run for protection.

Slublog on March 18, 2008 at 3:36 PM

Merovign on March 18, 2008 at 3:23 PM

Wow, I think you have some issues. I am sorry your State has you in such a pinch. Don’t blame me for you gun laws LMFAO, blame the people you elect into office. DUH! Is that easy enough for you to understand? Attacking me for the soul purpose that you are ticked off at the world, does not make your world better.

jaime on March 18, 2008 at 3:28 PM

Why in God’s name are you bringing this up? Wow I think you have guns and religon a little intermixed there.

Hold on… Let me say a prayer before I grab my gun to go out fishing or hunting.

I don’t know about where you live nor do I care, but if your State is allowing Muslims to do their prayers in schools but yet will not let Christian children pray… makes you wonder then doesn’t it. So with what you just said… you just gave the definition of what is going on in many States across the Nation.

As I said, YOU elect the people who represent you and your interests. So you elect someone who screws you out of your rights…. Not my fault!

upinak on March 18, 2008 at 3:36 PM

From my cold dead hands.

saltydogg14 on March 18, 2008 at 3:37 PM

LimeyGeek on March 18, 2008 at 3:33 PM

I should admit, though, that my area of limited research (work-related) is only in the area of incidents on university campuses. After Virginia Tech, there was quite a bit of study on these incidents.

Slublog on March 18, 2008 at 3:40 PM

Slublog on March 18, 2008 at 3:36 PM

These examples are from the era of ‘gun control’. My original query related to times further back, when no such laws existed. My sources are people like my father-in-law, and hordes of old-timers that speak of childhood in the depression. They have a stunning perspective on things.

That said, I’m glad you highlight the utility of lawfully armed people on campus.

LimeyGeek on March 18, 2008 at 3:42 PM

Slublog on March 18, 2008 at 3:40 PM

Now that would be interesting to see.

upinak on March 18, 2008 at 3:42 PM

That said, I’m glad you highlight the utility of lawfully armed people on campus.

Well, I’m a concealed carry permit holder myself, so I tend to believe in prevention by deterrence.

Slublog on March 18, 2008 at 3:43 PM

upinak on March 18, 2008 at 3:42 PM

Unfortunately, it was mostly pulling out news articles and administrative reaction to violence incidents on campus. After VaTech, a lot of universities re-evaluated their warning systems and emergency response scenarios.

Unfortunately (but predictably), that massacre has also led university administrators to call for stricter measures and anti-gun policies.

Slublog on March 18, 2008 at 3:45 PM

Slublog – Somewhat related, albeit on a tad larger scale ;)

Still, interesting in its own right.

LimeyGeek on March 18, 2008 at 3:53 PM

upinak on March 18, 2008 at 3:36 PM

I guess we’re just not connecting.

I asked here jaime on March 18, 2008 at 2:25 PM if States can limit the U.S. Bill of Rights through their constitutional process.

You said here upinak on March 18, 2008 at 2:29 PM that it’s up to a State’s voters. That a State can limit any right it chooses as long as the majority of voters concur.

So I used Religion as an example here, jaime on March 18, 2008 at 2:35 PM.

You reaffirmed a State’s power to limit the Bill of Rights here, upinak on March 18, 2008 at 2:47 PM.

And here, jaime on March 18, 2008 at 3:28 PM, I attempt to establish the clarity of the issue with the Religion example again.

I’m not sure why you think I’m blaming you:

As I said, YOU elect the people who represent you and your interests. So you elect someone who screws you out of your rights…. Not my fault!

.

I’m just establishing the fact that your argument is that States have the power to limit the U.S. Bill of Rights in any manner they choose, as long as the majority of voters in that State desire it. Religion was just an example.

jaime on March 18, 2008 at 3:57 PM

Columbine didn’t happen because of gun laws.

Besides, didnt’ those kids violate laws anyway, to get the guns they used?

JamesLee on March 18, 2008 at 3:57 PM

The constitutions pretty clear that the well regulated militia is the reason for individual gun ownership

Article 1 Section 8 gives Congress the power to call forth, organize, train, arm and equip a militia — so if the 2nd Amendment is just about militias why is it even necessary? And what on earth is it doing amongst all those other Amendments clearly representing individual rights?

DrSteve on March 18, 2008 at 4:02 PM

Slublog – More relevant, and enlightening.

LimeyGeek on March 18, 2008 at 4:02 PM

LimeyGeek on March 18, 2008 at 4:02 PM

Thanks. That looks interesting. I’ll have to bookmark it for perusing this evening.

Slublog on March 18, 2008 at 4:06 PM

jaime on March 18, 2008 at 3:57 PM

Good LORD! We are talking Guns not Religon. Ugh… yeah you are mixed up.

I said the States adopted the Federal Bill of Rights when they became a State, yet you are argueing Religon compared to gun… NOT THE SAME! I don’t worship my Weapon… thanks.

upinak on March 18, 2008 at 4:06 PM

upinak on March 18, 2008 at 3:36 PM

I’m not the one with issues, and I’m not the only one you’re attacking because you can’t express yourself clearly.

Obviously, you need to learn to match up what you say to what you intend to say, because what you said at 2:29 doesn’t match what you’ve said since.

Proofread your posts for clarity, and you’ll be misunderstood much less. Clarify what you said when you’re questioned instead of insulting people, and you’ll get in less fights.

It’s just advice, take it or leave it.

Merovign on March 18, 2008 at 4:09 PM

jaime on March 18, 2008 at 3:57 PM

I think we may be dealing with a lost cause here. (shakes head)

Merovign on March 18, 2008 at 4:10 PM

upinak on March 18, 2008 at 4:06 PM

No, I’m not arguing anything. I asked a question about a State’s ability to limit and restrict the U.S. Bill of Rights. You, as far as I can tell, say that the States have that power and only need a majority of their voters to accomplish it. I used religion as an example.

jaime on March 18, 2008 at 4:13 PM

Wow… some people just don’t get it. And with that said… moving on!

upinak on March 18, 2008 at 4:13 PM

I think we may be dealing with a lost cause here. (shakes head)

Merovign on March 18, 2008 at 4:10 PM

I don’t know. Maybe I’m misunderstanding upinak’s argument.

jaime on March 18, 2008 at 4:17 PM

SCOTUSblog

Texas Gal on March 18, 2008 at 4:23 PM

So a State could amend its constitution to forbid all but the Christian religion and the Federal Government would have nothing to say about it? OK. And the State could mandate just one denomination, say Anglican. OK. Also, a State could control that religion by appointing its leaders through a State constitutional amendment.
jaime on March 18, 2008 at 3:28 PM

I think so. The Bill of Rights addresses power that the Constitution delegates to the Federal government by attempting to limit it to the satisfaction of the states who would later ratify it. If you accept that limits to federal power trump state and local power, you must first accept that the applicable federal power also trumps state and local powers. But if you fear what people will let their state legislatures do, should you not also fear what people will let Washington do even more?

Anyway, I don’t think one could argue that the states, upon limiting the federal government through the Bill of Rights, were in any way limiting their own power in the process. In fact, they were intent on preserving that power in the face of an experemental federal government. That’s why I interpret the statement that rights are “reserved to the states and to the people” to mean that federal will is bent to the states’ legislature unless and until the state deferrs power to the individual through its own constitution. Many a delegate left the convention in 1787 to go home to states that allowed for things that were prohibited by the Bill of Rights, like official religions.

shuzilla on March 18, 2008 at 4:24 PM

Slublog on March 18, 2008 at 2:14 PM

I have to agree with you prediction on the ruling by SCOTUS. It would be a partial victory at least I suppose, but anyone trying to take guns away from American citizens would not like the reaction.

JohnAGJ on March 18, 2008 at 4:31 PM

jaime on March 18, 2008 at 4:17 PM

I think upinak isn’t understanding upinak’s argument – and proves it by declaring victory and running away… I seem to have mentioned that tactic upthread, ironically.

Sad.

Merovign on March 18, 2008 at 4:36 PM

“well-regulated militia” means “well trained” or “well disciplined” in this 18th Century term of art. You can also think of the word “regulation” as applying to clocks and their innards, which would make the “well-regulated” term to mean “well tuned.”

On the subject of why the Second Amendment was passed and how it relates to Article 1, Section 8, some history is required.

Long citation follows:

“If the first line of defense against a standing army was to intrust its existence to the representative of the people, the second was that central check that permeated the entire constitution: division of Powers . . . . Under the constitutional structure, no army could seize power or become the tool for a coup without shattering the constitution and with it, legitimate government altogether. [113]”

“Should such an event occur, the framers believed in one final safeguard: the people in the form of the militia. . . .”

“. . . Precisely because he so feared armies, George Mason pressed the convention for national authority over the militia to effect its reform. And precisely because the militia served as a powerful check against an arbitrary
and tyrannical national government, opponents of the Constitution worried that the new government’s influence over the state forces would lead to their neglect, or worse yet, a concerted effort to enfeeble them in order to render
the states impotent. That is the primary reason why opponents of the Constitution insisted, in ratifying conventions and afterwards, on amendments to guarantee the right of citizens to bear arms. The final check on standing
armies, in the minds of both the framers of the Constitution and opponents of the new system, was civil war. [116]”

[from "The Constitution and National Security," by Richard H. Kohn, pp 61-94, in "The United States Military under the Constitution of the United States, 1789-1989," also edited by Richard H. Kohn, New York University Press, 1991, ISBN 0-8147-4615-2.]

Another supporting view:

“The militia clauses had a Cromwellian odor about them, so the Antifederalists argued. The Constitution already implied that Congress had the lead in determining basic military policy. Now the Antifederalists wanted to secure the rights of the states to maintain military forces, even
though the Constitution prohibited them from having standing armies and navies. As finally drafted and adopted, the Second Amendment to the Constitution reflected the values of civilian control, and decentralized power….”

["The Constitution and the Citizen-Soldier", by Allan R. Millett, pp 97 - 119, in "The United States Military under the Constitution of the United States, 1789-1989," also edited by Richard H. Kohn, New York University Press, 1991, ISBN 0-8147-4615-2]

Here is what this means: In order to prevent Congress from disarming the Militia at some future time, the anti-Federalists insisted upon Amending the Constitution to prevent it by recognizing that the right to keep and bear arms is an individual right and that Congress cannot infringe upon it. This guarantees that the Militia will always be armed.

BTW, today’s SC oral argument indicates that the individual right to keep and bear arms will be affirmed either 5-4 or maybe even 6-3. The second part of the issue, overturning DC’s handgun ban law and requiring long guns to be dissembled (the “lock up your safety” requirement) seems to be going our way as well. I guess that there is a 60% chance DC’s law as written will go down.

georgej on March 18, 2008 at 4:39 PM

“Well regulated militia” is an explanatary clause. It explains why the right, in this case, the individual right to own guns, is necessary. It is not a limiting clause.

MarkTheGreat on March 18, 2008 at 4:42 PM

If the court can rule that “substantial governmental interests” can trump the first ammendments free speech quarentees, then the court can rule that anything the govt wants to do is ok with it.

MarkTheGreat on March 18, 2008 at 4:44 PM

shuzilla on March 18, 2008 at 4:24 PM

Nicely said, shuzilla. The Bill of rights applies to the Federal Government but not the States.

I can assume that applies not only to the Bill of Rights, but also the other amendments. Like the 14th.

jaime on March 18, 2008 at 5:02 PM

The Financial Times is reporting that what Slublog has mentioned as the possible outcome of this case appears to be correct:

The US Supreme Court appears ready to rule that Americans have a constitutional right to keep a gun in their home for self-defence, a ruling that could help Republicans in the upcoming presidential election.

Hearing the most important gun rights case in nearly 70 years, the justices on Tuesday spent 98 minutes engrossed in a lively debate about British and American legal traditions relating to the right to bear arms, especially in self-defence.

By the end of Tuesday’s session, it appeared clear that a majority of the court would rule that the US constitution protects the right of individual Americans to “keep and bear arms” – but that federal, state and local governments will retain some powers to regulate firearms…

JohnAGJ on March 18, 2008 at 5:37 PM

The Bill of rights applies to the Federal Government but not the States.

I apologise in advance for sounding harsh – but this is the most fucking retarded thing I have read today. No doubt you’ll be topped tomorrow, but for now, you’re the champ.

If what you say is true, then there is nothing to stop any state from enacting law that suppresses free speech.

If that is true – then what possible value is there in the constitution at all?

The fedgov can’t restrict my freedom of speech, but the state gov can? – so, how, exactly, do you brainiacs believe that there is any protection at all for freedom of speech?

I’ll clue you in – quite apart from the principle of ‘incorporation’ derived from the 14th amendment, there is also the “Privileges and Immunities” clause.

The several states are bound by the constitution to the same extent as the fedgov. What the fedgov may not do, the states gov may not do. What the fedgov may do takes precedence over the states gov. Anything else falls to the states to decide for themselves.

LimeyGeek on March 18, 2008 at 9:42 PM

if guns kill people then
pencils cause misspelling
cars cause drunk driving
Liberalism causes stupidity

Mojack420 on March 18, 2008 at 10:02 PM

this is the most fucking retarded thing I have read today.

You noticed that, too? I was hoping someone would.

Did you read the discussion starting here:

jaime on March 18, 2008 at 2:25 PM ?

jaime on March 18, 2008 at 10:15 PM

As was written: The Bill of rights applies to the Federal Government but not the States.

Under the rule of law and the federalism inherent in the federal constitution that statement is incorrect. However, we must remember that when a state, or local government for that matter, passes a law that infringes on a right or power enumerated in the federal constitution, it is law until stayed or struck down by the courts.

Most of us seem to be fixated on the federal government, me included; but we are most vulnerable in our everyday lives to the whims of local government as in the gun laws enacted in D.C. and such seemly mundane powers as zoning and permits. We saw that with eminent domain in Connecticut. The Supreme Court settled it; wrongly in my opinion. Also those who run for local office set the tone for future transgressions at the state level as they advance through the system and become more powerful. So be careful who you support and elect to the city council or country commission.

amr on March 19, 2008 at 7:56 AM