US Supreme Court to hear Second Amendment case

Parent Cafe
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<p>This will be a monumental event and just in time for the presidential election cycle! I am anxious to hear the various candidates support the personal right or state’s right view. They won’t be able to duck this issue this cycle.</p>

<p>I can hardly wait. :)</p>

<p>Here’s one article on the case: [High</a> court should unholster the 2nd Amendment – baltimoresun.com](<a href=“http://www.baltimoresun.com/news/opinion/oped/bal-op.proguns21nov21,0,6765483.story]High”>http://www.baltimoresun.com/news/opinion/oped/bal-op.proguns21nov21,0,6765483.story)</p>

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<p>With right leaning majority, I don’t expect them to be ‘brave’. They will dance around the issue.</p>

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<p>It seems to me that dancing would have meant not hearing the case and allowing the circuits to further be in conflict. By hearing the case…who knows?</p>

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<p>“Brave” would be affirming the individual liberties in the Second Amendment. Those who don’t like guns should work to appeal the second. I might even support that. As it stands, though, it’s really hard to argue that the Bill of Rights was meant to support the right of militias to be armed. I bet even the 9th District would find that a logical leap that is hard to make.</p>

5

<p>I too believe that if the Founders wanted to ensure that militias have weapons they’d simply have said “State militias will be properly armed”.</p>

<p>Even the most anti-gun person would pause at an effort to repeal the Second Amendment. No sane person would ever give up the right to resist tyranny. As has been said before, the Second Amendment makes the First Amendment possible.</p>

<p>This is why this will be so entertaining - there will inevitably be a clarification and restatement of what our Bill of Rights means to Americans.</p>

<p>I see one conclusion being the minimizing of differences between “liberals” and “conservatives” brought about initially by the abortion fight. Both sides will eventually agree on the personal right to firearms and we’ll be better off for it.</p>

6

<p>My American history is not that good, but in good old days wasn’t membership in ‘militas’ voluntary? So if militas were voluntary, it makes perfect sense that members have their own tools of the trade - killing machines.</p>

<p>There is a long history of militia in the United States, starting during the colonial era, with the colonial militias drawn from the body of adult male citizens of a community, town, or local region. Colonial militia served a vital role in the French and Indian Wars and to a lesser extent the United States Revolutionary War. Militia service shifted from colonial control to state control with the creation of the United States in 1776. Regulation of the militia was codified by the Second Continental Congress with the Articles of Confederation, in conjunction with the creation of a regular army. With the Constitutional Convention of 1787 and Article 1 Section 8 of the United States Constitution, control of the army and the power to direct the militia of the states was concurrently delegated to the federal Congress.[26] The Militia Clauses gave Congress authority for “organizing, arming, and disciplining” the militia, and “governing such Part of them as may be employed in the Service of the United States”, with the States retaining authority to appoint officers and to impose the training specified by Congress.</p>

<p>Proponents describe a key element in the concept of “militia” was that to be “genuine” it not be a “select militia”, composed of an unrepresentative subset of the population. This was an argument presented in the ratification debates.[27]</p>

<p>To ensure that the “militia could not be disarmed”, a right of the people to keep and bear arms was recognized in the Second Amendment.[28]</p>

<p>The first legislation on the subject was The Militia Act of 1792 which provided, in part:</p>

<pre><code>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, … “every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock…”
</code></pre>

<p>show me those militas and you can have your muskets (were hand guns invented?)</p>

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<p>Simba, legislation like the 2nd Amendment includes two parts, the reasons for the law (the “whereas’s”) and the active part of the resolution. The active part of the 2nd reads “the right of the people to keep and bear arms shall not be infringed.” You can argue the specifics of the “whereas” all you want, but it doesn’t change the second part.</p>

<p>Given how the Supreme Court has backed up endless federal involvement in what are manifestly states rights under the guise of “regulating interstate commerce” I wouldn’t be surprised at anything the Supremes do, but I doubt they will attempt to find something in the “penumbra” of the 2nd to allow local jurisdictions to infringe the right to own firearms. </p>

<p>The spineless thing is that the Supreme Court has so rarely taken a gun control case. There’s nothing quite like the ability to pick and choose what Olympic decrees you would like to hand down.</p>

<p>EDITED: Who needs a King, or even an elected government when you have an unaccountable Supreme Court to decide everything for us all? In a lot of ways, the Supremes have become what the founding fathers worried about.</p>

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<p>…except it doesn’t say “whereas”, WashDad, and no other part of the Constitution or Bill of Rights is “surplus”. So why is the 2nd Amendment different? And the “whereas’s”, when they do exist in legislation, absolutely do affect how the rest of the legislation is interpreted - that’s why they’re there.</p>

<p>My solution? Simple. Anyone who wants a gun can have one. </p>

<p>As soon as they enlist in the National Guard.</p>

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<p>washdad: nice try, but you are picking and choosing.</p>

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<p>The right to bear arms is not unrestricted, as I know very few of even the most ardent gun nuts who would trust their fellow citizens with tanks, RPG’s, shoulder-mounted SAM’s, etc. So the question becomes where one draws the line. I have no problem with muzzle-loading rifles, muskets, and flintlock pistols since this is what was widely available at the time the Constitution was framed and I doubt very much that then you would have come up for support for privately-owned cannon.</p>

<p>From the standpoint of degree of lethality, one could make an argument for revolvers and magazine-fed non-automatic rifles with limited sized clips.</p>

<p>P2N, relying upon private ownership of guns as a bulwark against tyranny is laughable…the government’s major force these days is electronic. Hey, the Republicans in Congress have said that electronic surveillance is okay as long as it’s in the name of state security and enough feckless Democrats have sheeped along to at least temporarily make it law of the land. When the government can monitor your communications, track your finances, and track your physical position, all without your knowledge, your physical liberty is almost an afterthought.</p>

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<p>

I disagree. These are exactly what we need to keep the black helicopters at bay.</p>

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<p>I think drb is exactly correct. The well-organized militia was meant to protect against government depradations. In that regard, handguns are virtually useless (and hence perhaps unprotected - though they are often protected by state law). But tanks, RPGs, suitcase nukes, and private ownership of WMDs are precisely the sort of thing the 2nd Amendment was meant to protect.</p>

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<p>A common standard arm today would be an M16 or an AK-47 as the British Brown Bess was perhaps the best standard arm of its day. It is perfectly lawful to own an M16 if you go through the procedures available. The semi-auto equivalent to the M16 is perfectly lawful in most states except CA, MA, MD and other states.</p>

<p>I believe we’ll see a change in those laws when the SCOTUS rules in this case.</p>

<p>Federal law already defines tanks, nukes, RPGs and WMDs as “destructive devices” that do not qualify under Amendment #2. No one at the NRA or other firearms-sympathetic organization would ever tolerate suitcase nukes or other WMD as an “arm”.</p>

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<p>However, .50 cal machine guns would be ok?</p>

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<p>Only if you are a law abiding citizen. If not then you can only have .25 cal machine gun.</p>

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<p>With all the heat generated by the Second Amendment’s true meaning, I decided to go back and read the exact words. In the course of reading the amendment, I re-read all of the original ten amendments. They are as follows:</p>

<p>Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.</p>

<p>Amendment II
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. </p>

<p>Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. </p>

<p>Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. </p>

<p>Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. </p>

<p>Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. </p>

<p>Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. </p>

<p>Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. </p>

<p>Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. </p>

<p>Amendment X
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. </p>

<p>Reading all of the amendments as a “whole piece of cloth”, patterns emerge. Each amendment is a single sentence (some short, some long and convoluted). In Every case, the subject of the amendment appears at the beginning of the sentence.</p>

<p>The second, third, ninth and tenth amendments are “short” in comparison to the others. The eighth amendment is short as well, but stands out by being a comment regarding capital, criminal and civil cases mentioned in the fifth, sixth and seventh amendments. Disregarding the second amendment for a moment, can anyone argue that the subject of the third amendment is not “soldiers”? That the ninth amendment’s subject is “certain rights” as mentioned in the Constitution? That the tenth amendment’s subject is “powers” not delegated by the Constitution or prohibited to the states? </p>

<p>If these observations are correct, the subject of the Second Amendment must be “militia” (“a well regulated” one). If the intent of the Framers was simply the freedom to own fire arms, why make any references to a “militia” or “state”? </p>

<p>Following the sentence structure of the other nine amendments, the Second Amendment should then read: “[T]he right of the people to keep and bear arms, shall not be infringed”. Simple and unambiguous (if that’s what the Framers intended)…</p>

<p>The second amendment consists of twenty-seven words to form one sentence. I find it hard to believe that the first thirteen words (as written by the Framers) have absolutely no meaning and that only the last fourteen words have consequences.</p>

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<p>The efficacy of this measure has been absolutely ignored. A person willing to commit murder, possibly involved in drugs or gangs as many DC murders are, is going to find a straw buyer or a second-hand gun and buy it illegally. If they’re a convicted felon already, this is how they’ll arm themselves regardless of the ban. The DC ban, aside from being illegal, is an ineffective restriction. The city’s crime rate is very high and has mirrored national trends, suggesting that the city’s crime fluctuates independent of gun legislation. </p>

<p>The single most effective piece of legislation as far as crime in the United States is concerned would be decriminalization of illegal drugs. Just as alcohol’s prohibition in the first part of the 20th century fueled gangs, illegal drugs provide the financial backbone of gang life in America. Using the law to steal the economic motivation for gangs will do more to stop gang violence (blamed on half of all homicides in LA) than disarming citizens who CHOOSE to obey gun laws. The tax revenue from recreational drugs could be used to finance new police units, more officers, and better equipment. There are 200 million guns on the street in this country and you can’t take them all back.</p>

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<p>All machine guns are required to be registered with the federal government. This is regarded, to date, as a “reasonable regulation” of a person’s right under A2.</p>

<p>The phrasing of A2 is not unusual. Here’s one analysis: [The</a> Commonplace Second Amendment](<a href=“http://www.law.ucla.edu/volokh/common.htm]The”>The Commonplace Second Amendment)</p>

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<p>“Federal law already defines tanks, nukes, RPGs and WMDs as “destructive devices” that do not qualify under Amendment #2.”</p>

<p>And those laws are likely unconstitutional under the Second Amendment. (If they are not “destructive”, they are hardly likely be useful in defense against government depradations.)</p>

<p>The intent of the framers is somewhat difficult to determine, because those people we call “framers” had very different opinions in 1776, in 1789-1791, and then later in 1800. As concerns religion for example, the authors of the Declaration come across as some kind of deists, nominally Christian in some cases, but relatively freethinking believers. Those same folks, when it came to the Constitution, and knowing that every single charter and constitution in the 13 colonies appealed to a Supreme Being, intentional and conspicuously (and with full knowledge of Thomas Paine’s work) left all appeal to such a being as author of the State entirely out, and the only reference to religion is a negative one (no religious tests). By 1801, with first major religious revival, these same folks often come across as relatively conservative Protestants. The period we call the “Constitutional Period” (1787-1791) is about as close to a radical atheist period we find in American history. </p>

<p>Similarly in this regard, when the Continental Army was disbanded, many of the framers fervently hoped (and expected) that there would never be a standing army again. The idea of the 2nd Amendment may have been to enable citizens to protect themselves against the depradations of a future one. But not two years after the Bill of Rights, after major defeats of state militia and U.S. volunteers by Indians in Ohio, Washington felt called upon to reconstitute a standing army. The point being that, even in a short period, in 1787, 1791, and 1795, the very same people might have had very different intentions.</p>

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<p>From the May 6, 2007 edition of the New York Times: <a href=“http://www.nytimes.com/2007/05/06/us/06firearms.html?hp=&pagewanted=all[/url]”>http://www.nytimes.com/2007/05/06/us/06firearms.html?hp=&pagewanted=all&lt;/a&gt;&lt;/p&gt;

<p>*The decision in Parker has been stayed while the full appeals court decides whether to rehear the case.</p>

<p>Should the case reach the Supreme Court, Professor Tribe said, “there’s a really quite decent chance that it will be affirmed.”*</p>