Wow, a trial court ruling? That surely trumps the nine (now ten) court of appeals decisions I cited. 
Besides, isn’t that just the trial court ruling that served as the basis for the Emerson appeal to the Fifth Circuit?
I always thought that the Second Amendment was all about INDIVIDUAL rights to bear arms, despite mentions of a “well armed militia”.
Has the “militia” phrase been given THAT much weight over the past 60 years or so? I can’t help but think that the American court system has severely twisted the original intent of this amendment. Not that that can be conclusively proven, but that’s my opinion.
Does the 9th Circuit hold that a state can grant individuals the right to bear arms within it’s boundaries? Is that the deal?
Uh … um …
Hey, look, over there! Isn’t that Marcel Marceau?
<runs away while minty isn’t looking>
Yes, Realhoops, the Supreme court has avoided the Second Amendment like the plague. That the Supreme Court has failed to personally resolve an issue hardly means that there is “no case law” on point. They’ve had multiple opportunities to correct Court of Appeals decisions that there is no individual right. They have refused to do so every time.
BTW, there are precisely 11 circuit court (i.e., U.S. Court of Appeals) decisions on point. 10 have held unambiguously that there is no individual right to bear arms under the Second Amendment. Only one (Emerson) states in interminably long dicta that there is an individual right to bear arms under the Second Amendment, but that the right is subject to reasonable restrictions. I don’t have the federal district court (i.e., trial court) cites available right now, but my clear recollection is that they also rule against the individual rights interpretation, with maybe one or two exceptions that got reversed on appeal anyway.
Like I said, the great weight of legal authority holds that there is no individual right to bear arms under the federal constitution.
And to add further fuel to the fire, I’d also like to remind everyone that the Second Amendment has never been held to apply against the states. It is, under current law, a restriction solely applicable to the federal government. The states can infringe the right to bear arms to their gun-grabbing hearts’ content. 
On preview: Gotcha, tracer. And it figures it would have been Sam Cummings who issued that ruling, so I still thank you for the link.
It appears that SCOTUS last touched Second Amendment issues in 1939 in the Miller case.
I’m still trying to figure out whether it supports an individual’s putative right to bear arms, comes down against it or has no relevance at all to the question!
Minty, I recognize that all the circuit and district court opinions demonstrate that there is hardly “no case law” out there. I was merely hypothesizing that when Boxcar said there was “no case law” he really meant to say “no case law from the Supreme Court.”
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BTW, I haven’t spent much time lurking around here in recent months… I’m aware (if I recall correctly) that Bricker is an attorney. Safe to assume that you are as well? Or are you just a concerned citizen who enjoys reading legal literature? 
FTR, I am also an attorney and work for an appellate court, so I’m relatively well-versed in the items that I choose to speak about. Just curious about some of you others’ backgrounds in this regard to give some context to our discussions… err… “debates.”
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Nice chatting with all of you on this stuff…
I guess might depend upon whether the italicized bit in “the right of the people to keep and bear arms” is taken to mean the people collectively or people individually.
That is the exact opposite of what I’ve always thought the Second Amendment entialed. The EXACT opposite.
IANAL. However, I believe the general tenor of cases has been that an individual can have a gun in his or her home without restriction. As soon as they take that gun out in public, though, a state has an interest in and a relatively unrestricted right to regulate what kind of a gun it is and pretty much everything about its use, transportation, etc., etc.
As minty green either says, or implies, this goes back a long way. New York has a long history of regulating guns and those regulations are upheld by courts.
Ack! It never crossed my mind that “the people” could mean anything but “each individual citizen”.
How does the Constitution have ANY meaning at all??? Spin it anyway you want … it can mean anything you want. Just jiggle around with the definitions of a few phrases here or there. Criminy.
Welcome to Constitutional law, bordelond. Try looking up “strict constructionist” sometime.
I figured you for a lawyer. Since most of the people 'round here are not, I often make basic points for their benefit that the lawyers in the audience would already know. Don’t worry, not trying to talk down to you!
FTR, I am also an attorney, predominantly in state appellate law. The Second Amendment stuff is a hobby I picked up 'round here when I realized how big many people’s misconceptions were about the state of Second Amendment law. One of these days, I swear I’m going to assemble a Second Amendment FAQ post so I can just link back to it in future debates with the notation to “See Question #4.”
Miller does not resolve the individual vs. collective rights dispute. However, it does lend some support to the collective rights interpretation in that it gives substantive effect to the introductory “militia” clause that so many gun rights folks would read as a nullity. That is, Miller limits the guarantee of the second clause by reading the milita lanaguage of the first clause as a limitation on the guarantee. Thus, the Court held that a firearm is only protected by the Second Amendment if it is of a type suitable for militia service. If you apply the militia clause to “the people” of the second clause, just as Miller does to the “arms,” you end up with a reading that the people = the militia.
bordelond, I assure you that the case law, though limited to a handful of cases, does indeed hold that the Second Amendment applies only against the federal government and not against the states. I’ll try to dig up some cites for you later. (It’s all going in the FAQ eventually!) Your own state’s constitution and/or statutes may, of course, assure an individual right to bear arms, but the Second Amendment does not.
Bordelund:… just curious about what you thought the part of the Second Amendment that talks about a “well regulated militia” meant? You seem surprised that the words “the people” are open to interpretation, but I’m guessing from your posts in this thread that you would also suggest “the militia” part of the amendment doesn’t really mean what it literally says?
Probably Unnecessary Legal Disclaimer: Again, not trying to start a debate in this thread about whether people do have the right to bear arms, arm bears, or anything else… just wondering what your thinking about “interpretation” is.
I understand that some have argued that the Emerson discussion of the Second Amendment is dicta, the courts have generally not construed to be dicta.
The Ninth Circuit case criticized the Emerson decision but did not say it is dicta. Other courts have discussed Emerson and approached it as the law of the Fifth Circuit and not dicta. Since courts view it as the holding of the Fifth Circuit, I don’t think it is properly referred to as dicta.
Do, however, keep in mind that “strict constructionist” is merely code for “political conservative.” I assure you, Cervaise, that William Rhenquist applies the language of the Constitution no more strictly than does Ruth Bader Ginsburg. They each merely apply it differently.
My unerstanding is that in 1789, a militia – even a “well-regulated” one – consisted simply of any and all able-bodied citizens. IOW, today’s ordinary citizen would have been tomorrow’s minuteman in Revolutionary times.
BTW, Minty, thank you for taking up the Second Amendment as a hobby.
Zoff: Judge Parker’s concurrence in Emerson does an admirable job of explaining why the individual rights discussion in that case is dicta. I also took a crack at it myself here. In a nutshell, since Emerson would lose in exactly the same way no matter whether it is a collective or individual right, the resolution of the colelctive/individual right issue was not necessary to the outcome of the case. That’s the very definition of obiter dictum:
Black’s Law Dictionary, Seventh Ed.
Anytime, Dangerosa.
I find this hard to believe. Let’s take Roe v. Wade as an example. This decision does not come from the language of the Constitution. However, SCOTUS has made it settled law, and IMHO it’s unlikely to ever be reversed.
However, if the possibility arose, I would think Rehnquist (or Scalia or Thomas) would be more likely than Ginsburg to reverse Roe v. Wade, because the decision itself doesn’t follow the language of the Constitution.
Yes indeed. Even Thomas Jefferson said quite clearly that the world belongs to the living and it is their right to interpret anything whatever in terms that suit their purpose. “Original intent” and “strict construction” seem to me to just be shorthand to either approve or disparage something without providing any justification for either stance.