Our US Supreme Court this week takes up a question of great pitch and moment -- the question of the constitutionality of the Washington DC handgun ban. It appears the case has been structured to hinge on the question whetherthe second amendment protects an individual's right to keep and bear arms or a collective right, such as a right of a member of a militia -- and only as a member of such militia -- to keep and bear arms. It is possible the court may just take a very narrow line, avoid setting any precedents,and decide the case, but it looks otherwise to me.
The court could have avoided this case by simply declining to accept to hear the case. This would have left the lower court's decision -- 2-1 that the handgun ban was unconstitutional -- in place. It would appear the team of lawyers representing Washington DC especially posed the case in starkly constitutional terms to reduce the prospects of the court declining to hear the case (which they are incented to do, because they lose if the court declines to hear). There is no clear precedent for interpreting the second amendment, according to what I have read casually. This case does not lend itself to questions whether a limited second amendment right exists -- such as a limited first amendment right (you can't yell "FIRE!!!!" in a crowded theater, etc.). It is more stark. Very interesting.
For a minute imagine what the day after would be like if the court were to decide, just as a hypothetical, that the second amendment is a collective right, a right we hold only when we are considered as a member of a body of militia. This would be a strong precedent, difficult to overturn or navigate around. What would be the consequences for federal gun control legislation? What signal would this send to liberal states such as Illinois, California, Massachusetts, New York, Minnesota, etc.? What would be the impact on corporate intrusions into our private ownership of firearms (some large corporations outlaw employees from having firearms in their vehicles on company property, such as in a car parked at work)?
I don't think it will go down that way, or maybe I should say I hope it doesn't go down that way. But I can say that I feel much more comfortable for having the two supreme court justices that George W. Bush has appointed to the court in place. The news media makes precious little noise about appointment of judges and the slow, tedious actions of the courts, but this too is a vital role of the US president -- perhaps one of the most vital roles. The president appoints not only supreme court justices but also federal court judges, I believe. So give this a thought when the November election comes around. Who do you want appointing supreme court justices and federal judges for the next 4 or 8 years? McCain or Hillarobama?
As a post scriptum . . . . I understand the Bush administration has taken the position that (1) the second amendment protects a private right but (2) the handgun ban ought to be allowed to stand. I wonder if GW did not draft this self-contradictory position statement solo? I guess GW or his administration doesn't really understand how these things work. The city of Washington DC, should their ban be ruled unconstitutional, is free to draft a new law pertaining to handguns, so long as they draft this new law within the bounds of constitutional limits. It isn't like if the handgun ban is ruled unconstitutional that every crack-head, junkie, gansta' rappa', psycho killer, klansman, white supremicist, neo-nazi, etc. can go out the next day and load up on fully automatic pistols!!!
Location: land of the Lilliputians, In the state of insanity
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RE: Your government at work
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As a post scriptum . . . . I understand the Bush administration has taken the position that (1) the second amendment protects a private right but (2) the handgun ban ought to be allowed to stand. I wonder if GW did not draft this self-contradictory position statement solo?
Ill be honesst and say im ignorant when Bush took this stance, but believe it was during his first term. Along with his allowing the ARB to die. With that said, Id say he held onto the handgun ban as to keep from rocking the electorial boat too much. Didnt want to burn too many voters bridges before the second term election.
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kaafir mushrik
Unintended consequences and God have one thing in common: Liberals don’t believe in either of them.
I believe that IF the court rules BROADLY, the gun banners lose. Period. THere have already been rulings
pertaining to exactly who THE PEOPLE are in the various amendments (individuals, not collective ), and the meaning of the wording of the second amendment has been pretty much consolidated to mean all able-bodied males ARE the militia, and it is a disorganized militia, not something run by the Army or some branch of the military. There have even been rulings IN FAVOR OF weapons commonly issued by the military (U.S. vs Miller 1939) as opposed to those that are not.
The court will rule narrowly. I believe they will maintain:
a: refinement to the rights acknowledged under Amendment II are legal
b: 'states rights' allows for the conditional exercise of such rights as regulated by local governments
c: Outright Bans are unconstitutional, as would be restrictions so narrowly defined as to make the
exercise of these rights impossible.
d: the final decision will hinge on whether the city of Washington D.C. is afforded the same rights
as a state in restricting civil liberties or if it's subject federal law.
In any case, the ban will be overturned. Don't look for anything earth-shattering, and don't expect anything remotely resembling a federal pre-emption or nullification of state firearms laws. Not gonna happen.....
As a post scriptum . . . . I understand the Bush administration has taken the position that (1) the second amendment protects a private right but (2) the handgun ban ought to be allowed to stand. I wonder if GW did not draft this self-contradictory position statement solo?
Ill be honesst and say im ignorant when Bush took this stance, but believe it was during his first term. Along with his allowing the ARB to die. With that said, Id say he held onto the handgun ban as to keep from rocking the electorial boat too much. Didnt want to burn too many voters bridges before the second term election.
Burnie: The information I read about the Bush administration sounded like it was of recent origin, but maybe it is a "mash-up" of different statements from the past produced by the media. I liked very much a position paper produced by the DOJ on individual right versus collective right view of the second amendment published in December 2004, I believe. That position paper was a solidly argued, based on fundamental and comprehensive analysis extending back before the Articles of the Confederation, to British common law. A good read for those who are true believers in the second amendment.
Bergall: I hope you are wrong and the court rules broadly. Unfortunately, you sound like you know more about and understand these matters better than I do, so you are probably a better predictor of what will be in this case. I do draw hope from your post in that you didn't suggest there were prospects for the court to set precedent forrestricting the second amendment to acollective right.
As a post scriptum . . . . I understand the Bush administration has taken the position that (1) the second amendment protects a private right but (2) the handgun ban ought to be allowed to stand. I wonder if GW did not draft this self-contradictory position statement solo?
Ill be honesst and say im ignorant when Bush took this stance, but believe it was during his first term. Along with his allowing the ARB to die. With that said, Id say he held onto the handgun ban as to keep from rocking the electorial boat too much. Didnt want to burn too many voters bridges before the second term election.
Burnie: The information I read about the Bush administration sounded like it was of recent origin, but maybe it is a "mash-up" of different statements from the past produced by the media. I liked very much a position paper produced by the DOJ on individual right versus collective right view of the second amendment published in December 2004, I believe. That position paper was a solidly argued, based on fundamental and comprehensive analysis extending back before the Articles of the Confederation, to British common law. A good read for those who are true believers in the second amendment.
Bergall: I hope you are wrong and the court rules broadly. Unfortunately, you sound like you know more about and understand these matters better than I do, so you are probably a better predictor of what will be in this case. I do draw hope from your post in that you didn't suggest there were prospects for the court to set precedent forrestricting the second amendment to acollective right.
It's already been stated to be an individual right, because the phrase "THE PEOPLE" is an individual right
in Amendment I, Amendment II, Amendment IV, Amendment IX, Amendment X. The idea that some amendments were collective rights and some individual rights has been disproven and is only held by gun-banners in criticism of Amendment II.
I hope the court rules broadly too, but it will only rule in the case of gun bans, I would think. So, any state imposing a ban in handguns by law, will need to be 'corrected' as these will be deemed unconstitutional. The idea of 'gun control' as allowable is dependent on the States' Rights issue...the states can limit civil rights and the people who live there can make corrections at the voting booth. But states cannot impose outright bans unless a constitutional congress repeals Amendment II...not gonna happen either.
Personally, I'd love to see 1 single all-encompassing pre-emptive law on the Federal level regarding firearms and their use, posession and disposition. Many states I feel have shown themselves to be inept, incapable, and malicious in their efforts to control this right at the expense of the people they govern so it's time for a uniform law to replace the 20,000 of the ones on the books. Even the FOPA of 1986, which was supposed to pre-empt this sort of thing, has been abrogated by states posting costly and inconvenient limitations on travel with firearms. It's time....
You are preaching to the choir on the reading of the second amendment. I can't imagine any fair reading of the language interpreting that text any other way. I'm just saying some weasels -- specifically the law team for Washington DC -- want to hold that the second amendment is restricted, unlike the other sacrosanct "Bill of Rights" amendments, to not be a people's right but rather a collective right of members of a militia.
I'm still somewhat sanguine that the court may rule broadly. If nothing else, the case has been set up directly to confront the individual versus collective right question. I can't see a decision being taken without speaking to that question. For my part, a solid stand by the court that the second amendment is an individual right would seem to be a broad and important precedent. On the other hand, I'm not an attorney, and maybe a marginal decision -- a 5-4 decision supporting individual right -- may not be conisdered a precedent?
At any rate, this has some import for owners of firearms.
You are preaching to the choir on the reading of the second amendment. I can't imagine any fair reading of the language interpreting that text any other way. I'm just saying some weasels -- specifically the law team for Washington DC -- want to hold that the second amendment is restricted, unlike the other sacrosanct "Bill of Rights" amendments, to not be a people's right but rather a collective right of members of a militia.
I'm still somewhat sanguine that the court may rule broadly. If nothing else, the case has been set up directly to confront the individual versus collective right question. I can't see a decision being taken without speaking to that question. For my part, a solid stand by the court that the second amendment is an individual right would seem to be a broad and important precedent. On the other hand, I'm not an attorney, and maybe a marginal decision -- a 5-4 decision supporting individual right -- may not be conisdered a precedent?
At any rate, this has some import for owners of firearms.
I know I'm preaching to the choir...I know you from your salient and sapient responses and postings. You are educated and literate which I respect. As far as getting a decision, I will take a 5-4 decision upholding the previous court's ruling. I do not believe they will rule Amendment II as a collective right...there's absolutely no evidence in previous rulings, in the historical writings of the framers of the constitution, nothing. The collective right theory is a modern construct of constitutional revisionists intent on looking at one thing, and calling it another. I don't see how even a D.C. lawyer can argue against the historical record in this matter.
In the matter of pre-emption, we can look at the Roe v Wade case which struck down what can be considered "states rights" positions forbidding abortion (specifically Texas) and mandated the availability of abortion to women nationwide, so we could possibly see a decision of import coming from this court which could invalidate many gun-control laws currently on the books. Would that it were true !
I don't want to be too optimistic, but I don't want to be too pessimistic either.
What will the Supremes do with this case? Well as far as states rights are concerned, they ruled in Roe v. Wade that state laws banning abortion violated privacy rights protected by the Constitution. Mostly they got away with it because, as folks now don't realize, many if not most states already allowed abortion with some conditions.
Could the Supremes pull another Roe v. Wade with the D.C. gun ban? I wouldn't rule it out. Would the decision create nationwide havoc? Well, most states allow gun ownership and even issue concealed carry permits. Many, if not most, are actually "shall issue" with regard to concealed carry. So a decision by the Supremes would only affect some cities with rigid gun bans, Chicago, New York, D.C. of course. Maybe Denver and San Francisco?
Would there be political fallout? Sure just like with Roe v. Wade, a lot of people will p*** and moan. But it will only be a minority. The Supremes are brainy enough to know that a right to own a gun is not going to increase crime. They can put some public policy limits on it like criminal background checks, but we already have that.
Keep in mind also that the case only tests the right to "keep" not to "bear" arms. So the effect would actually be negligible. Of course the anti-gun crowd will predict that America's family rooms will be flowing with blood. But there are already 60-70 million gun owners in the country already so nothing will really change. So don't be surprised if the anti-gun crowd loses on this one.
We have four conservative justices who are likely to support our interpretation of the second amendment. Justice Kennedy is a libertarian and they tend to be second amendment supporters. So I'm cautiously optimistic.
I'm looking forward to the opening of this case. The fact that Hellerwon in the Appeals Court sits well with me. I think his legal team has a lot of support, and they have alsodeveloped a number of rational arguments for striking down the ban. Finally, and perhaps most importantly, I think this is about as good a Supreme Court as we realistically can get for this issue.
If a Democrat were to win the presidential election and this case hadn't already made it to court, there would be no hope of a victory.
Your government at work
