http://news.yahoo.com/s/ap/20071120/ap_on_go_su_co/scotus_guns;_ylt=Andz2rRIRIYGiBNstym4_52s0NUE
Let’s have at it. Does Washington D.C.'s gun ban violate the 2nd amendment? I’ll stand back and chime in later…
The Circuit Court had it right. There is no reasonable justification in the First, Fourth, Fifth, Sixth, and Eigth Amendments being read broadly, bending over backwards to find broad and far-reaching rights for individuals in the text, and then reading the Second Amendment narrowly, with an eye towards strictly and thinly discerning any rights guaranteed by it.
Now, this view does not address whether a ban is WISE. I am not commenting on that question. But the Court’s job is not to determine what laws are wise, what laws are best. That’s for the legislatures. The Court’s job is to determine if the supreme law of the land, the Constitution, permits the District government to pass a total gun ban. Since it does not, if it’s truly unwise to forbid such a ban, then the only proper avenue is to change the Constitution.
I’m sure it’ll surprise no one to hear that I feel that it does violate the Constitution. The Second seems fairly clearly worded to me, as does the First, each of them in place not to grant citizens permission to do something, but to ban the government from prohibiting things. “The people” in the First are the same people as “the people” in the Second.
Giving in slightly, I’ll admit that there are certain people for whom rights may be restricted (those convicted of violent crime & etc.), but a blanket policy that prohibits the majority of the people from exercising a clearly stated right rather than a targeted policy that focuses on those who have proven they are a danger to others is (while becoming more like normal lately) backwards.
So what do you think it means? That everyone in the US should be allowed unrestricted access to all types of firearms?
Other than the justification that the amendment itself says what its purpose and extent is, right there in the first clause, as the others do not. As, you’ll note, most existing federal rulings, both District and Supreme, other than this latest activist one have held.
It’s indeed odd that a proud textualist insists on dismissing the Constitutional text the Framers provided for the purpose of explaining themselves, and reading in other conveninent explanations instead. But then it’s only judicial activism if you don’t like the result, apparently.
Look for an activist ruling from the Roberts Court and its new Bush majority, as its desire to make a ruling shows already. Note the rewording of the question they’ve agreed to rule upon: “violate (the individual’s) Second Amendment rights” - that strongly implies that they take the individualist interpretation right up front, precedent and even English grammar be damned.
Now, how about the fillip that this isni’t about states’ rights, DC not being a state? It does have a National Guard nonetheless.
Well, upon re-reading the Second, I can’t find any reason to believe otherwise “…the right of the people to keep and bear arms, shall not be infringed”
Note that it doesn’t say “the right of the people to keep and bear hunting quality firearms with limited capacity”, and indeed the first part of the amendment seems to indicate that the people are to be relied upon for security, thus I conclude that the Second Amendment means exactly what it says - the right of the people to keep and bear arms shall not be infringed.
Try re-reading the *entire * Second, then.
OK, OP chiming in here.
So, do qualifying statements restrict the declaration in the main sentence. This seems to be the central question:
Are gun rights only allowed in connection to a “well regulated militia”?
Consider the following: “A well lit street, being necessary for the security of a town, the right of the people to keep and use light bulbs shall not be infringed”
Do we look at the the last part only, the independant clause meaning that people may keep and use lightbulbs, or only those lightbulbs that are capable of lighting a street;
And of those streetlight bulbs, does the town have to possess them, or can the people have them?
I was taught in grade school english class that in a sentence with a dependent and a independant clause, you could toss out the dependent clause entirely and still keep the meaning of the sentence. The dependent clause was just extra fluff to explain the true meat: the indepedant clause…
If they didn’t, they wouldn’t be qualifying. The words are in there for a purpose. That purpose needs to be understood, and, if dismissed or overruled, done so on a *substantive * basis. This is the Constitution we’re referring to, a declaration of our basic principles and procedures of government, not a contract whose terms can be parsed away and dismissed if inconvenient.
Then you learned wrong. Minus the dependent clause, the remainder is still grammatical and can be interpreted as having meaning, but that is not the same meaning as if the full sentence is read in its entirety. Dependent clauses exist for a purpose, and I’m quite sure you use them yourself thinking that you’re doing it for a meaning and not “extra fluff”. Dependent clauses add meaning in the same way that adjectives do - are they all “fluff” as well?
My W.A.G. is that the Supreme Court will find a way to sidestep the whole question of whether or not gun possession is a personal, uninfringable right. Possibly by ruling (1). that the Second Amendment was not “incorporated” by later amendments, and therefore refers only to action by the Federal government; and (2). that D.C. is not a state and therefore this is a special case that will not set precedent on the rest of the US.
DC being federal territory means the entire Constitution appllies to it without resorting to “incorporation” arguments at all.
Taking this particular case means Roberts, Alito, and Scalia can sidestep the *states’-rights * question. Their apparent purpose is to establish the personal-right interpretation, not sidestep it, and to do so without distraction by side issues - that’s the beauty of this case, its reason for being.
Elvis, there is truth in what you say, but not the one you seem to be drawing from it. In Federalist times, the militia was the citizenry at arms. Most people of mans or living rurally had a gun or guns for what use they needed to make of one, which would vary depending on where you lived, from recreational for-food hunting outside and by inhabitants of the larger cities to defense against wild animals and outlaws in the more frontier-y areas. This male citizenry, armed and able quickly to come together to resist invasion or domineering, comprised the militia.
The purpose of the second at the time was to guarantee the individual citizen the right to arms, so that a well regulated militia might easily be raised. IMO, it still is.
There are amazingly good arguments why the sale, possession, and use of firearms in urban areas ought to be restricted. But they are not legal arguments, but social and moral ones.
Just as you don’t interpret the First Amendment to say that a Christian group can impose its creeds and symbols all over others so long as it isn’t formally established as a national religion (despite some Religious Rightists’ arguments that this is a valid interpretation), you don’t interpret the Second to mean what you feel is socially appropriate and needed for public safety.
If what it’s guaranteeing includes things contrary to the public safety, you amend it. Or you play the non-incorporation game and say that the Brady Law is unconstitutional but the states can regulate the hell out of the supposed right to own and bear weapons, because it’s not ‘a fundamental right of citizens of the United States’ guaranteed by the Fourteenth.
Perhaps you missed
But let’s go over it again -
“A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed.”
Which part of this, exactly, leads one to believe that a total ban on arms is in any way supportable? (Remember that we’re not talking about the reasonable restrictions imposed in many states, only the complete ban in D.C.)
“Well regulated militia”? A well regulated militia is made of all able-bodied citizens, IIRC, but that doesn’t matter (imho) because nowhere does it say that the right of the militia to KABA shall not be infringed, it’s the right of the people.
Again, not everyone should be allowed to purchase guns, but the prohibition should be earned by misdeeds. The people of D.C. are all currently deemed untrustworthy (rather than just the politicians).
As a wise man once said
“… it’s silly to think the framers would guarantee a right in one half of the Second Amendment only to allow the government to unguarantee it in the other half.”
A-men. When Polycarp and Bricker agree, you listen, folks.
This does not, however, cover ordnance. As in, heavy weapons and artillery. However, I believe it covers anything your average or superior fighting man may personally carry.
Yes, logically, that would cover Squad Automatic Weapons. Sad, but true. That’s my dividing line, at least, on a personal evaluation of the 2nd.
If you limit the meaning of “arms” to include only the arms you want to have in your neighborhood, you must first define the meaning of “not infringed.” What you effectively do is to say that you want the State to protect itself from the people, but not have the State protect the people from you.
It may be hard to face, but the fact is that when the Bill of Rights was written, the actual intent was to keep the government from being the only one with military levels of force available. Rifles were the preeminent form of weapon in the world, and were in the hands of private citizens. Cannons were really not that big an element of warfare, except at sea. The founders wanted the people armed, because they considered themselves people, and did not trust the State enough to give up the possibility of armed rebellion.
The world has changed, and weapons have changed more than most things. But, the nature of power has remained the same. Power desires more power above all things. The Second Amendment is really ineffective. Not enough people can afford helicopters, artillery, and satellite support, not to mention nukes to even entertain the thought of military revolution against the United States Government. So the Founders failed.
The irony of it all is that one half the current political spectrum finds the Second Amendment to be the most important bit of antique law to protect, but elect leaders that blithely limit the other nine. Even if the State had only swords and pikes, without Habeas Corpus, I am helpless before their strength. Protecting my sensibilities from the crudities of my neighbors tastes in art costs me the ability to speak against tyranny, although it may not seem so. But, the desire of the common man to order the lives of his fellows is the great failure of democracy.
TrisWhile I personally think the Second Amendment is a bad idea based on antiquated technology and I would love to see it abolished, I also believe its intent is clear - gun ownership is a constitutional right and the gun ban being discussed is unconstitutional.
I agree. I always found that argument rather facile. The obvious evidence is that each amendment is individual in character, so to argue that Amendments X, Y and Z have a certain form, and certain words have certain specific meanings, therefore Amendment 2 can’t vary from the form of these other ones, doesn’t make sense. There is certainly precedent for an Amendment having a narrow meaning, as we see in the 3rd. And just on it’s face, it’s quite obvious that the 2nd IS different, as it has that opening clause. The pro-gun side argues that this clause is only explanatory and doesn’t narrow the right being enumerated, yet none of the other amendments contain opening explanatory clauses. Consistency in language between the amendments is insisted upon when interpreting the meaning, but inconsistency is shrugged off as meaningless when it doesn’t support the argument. We are expected to believe that the exceedingly terse language employed by the Founding Fathers in all the other amendments suddenly became florid just for the 2nd Amendment. Doesn’t work for me.
I’m definitely hoping that this will be a chance to finally affirm that the 2A guarantees an individual right. Any other interpretation, IMHO, is just weaseling around with tortured grammar. It says “the right of the people”, not the right of the states or of the militia itself. It states the necessity of a militia as the justification for guaranteeing a right to the people, but that’s about as far as you can go.
But you’re ignoring the historical context. People were expected to provide their own weapons for the militia. So yes they were expected to own guns, but the reason was in order to use them in the militia. I don’t think it’s a correct reading to isolate 5 words and interpret them without the rest of the amendment.
Are a bunch of criminals with guns well regulated?
Mostly that’s who you run into in a city.