US Supreme Court to hear Second Amendment case

kluge · December 11, 2007, 3:04pm

Which gives rise to the question, Ramius, what then does “bear arms” mean today, if it simply refers to “owning guns”? Is it limited to 18th century muskets, as existed at the time of the amendment? A modern version of same, such as a rifle? An AK-47? An RPG? A tank? A suitcase nuke? A howitzer? Some of those things didn’t exist - even in crude form - back then, but some did have an 18th century analog. Does understanding the reason for the amendment help in determining what its scope should be today? The Supreme Court ruled 60 years ago that the second amendment did not include personal possession of a sawed off shotgun, since it didn’t fit the whole 'militia" thing - should the right extend to more, or less deadly weapons now? To be an effective militia today you need much better weaponry - most of the fuss about guns in 2007 doesn’t even touch on militarily appropriate or effective weapons. Does it make sense to say that the second amendment does guarantee the right to own a Saturday night special, but not an AK-47? Or the other way around? Or neither, or both?

Sorry - Constitutional rights trump statutes. What if Congress defined “arms” to mean “broadswords?” Nope – if the second amendment bestows a Constitutional “right” Congress can’t “infringe” on it by passing a statute restricting its application any further than the constitution’s own terms allow. And as we know, the constitution says what the Supreme Court says it says. Welcome to “strict construction.”

Icarus · December 11, 2007, 3:52pm

I would say that it is the “keep” part of the amendment that refers to owning and possessing guns in your home. “bear” will have to refer to something else entirely.

ninja.of.love · December 11, 2007, 4:39pm

“Legislatures make laws and are checked by the courts, so the definition of “arms” can be left up to them.” - ‘them’ was meant to refer to courts AND legislatures, not just the legislatures. Sorry for the lack of clarity.

We have the courts to interpret the law, Kluge, that’s exactly my point. Unless the Miller decision, which upheld the NFA of 1934, is overturned, the legislatures and courts have the authority and ability work out what is reasonable and what constitutes “well-regulated.” From my research, I have not been able to find a single legal case that sought to overturn U.S.C. 2332, so I have a hard time believing there will be an impetus to allow RPGs and biological weapons among civilians. I also have a hard time believing that a court would overturn 18 U.S.C. 2332 as un-Constitutional. What the courts will define as “arms,” especially the feasibility of their use in a militia, is a bit of a mystery, but I believe semi-auto assault rifles, all classes of handguns, and many other military style weapons will be included in the definition, like bayonets and rail-mounted shotguns. Most of the fuss in the early 1990s was about militarily appropriate weapons, like the AR15 and AK-47.

Personally, I believe a challenge to (what is essentially) a federal ban on all fully automatic weapons would be the most likely. The courts would have to decide if the federal ban on them is a reasonable form of regulation, similar to how they view regulation of 1st Amendment rights. RPGs, tanks, nuclear weapons, and howitzers are all beyond the pale, both in terms of legal merit and political viability. Of those, only a shoulder mounted grenade launcher or missile would be economically feasible for individual ownership. A single Bradley APC costs more than $3 million. The M2001 Crusader 155mm howitzer costs more than $3 million as well. While their inclusion in arms would be interesting from a legal standpoint, they are impractical.

raimius · December 11, 2007, 4:57pm

The Miller case is interesting to me. The SCOTUS ruled that short barreled shotguns had no militia use…but the US Army used them to great effect in the trenches of WWI. If ONLY militarily useful weapons were allowed the NFA of 1934, the 1986 automatic weapons ban, and “assault weapon” bans would be invalid.

The heirarchy of law is one weakness of many of DC’s arguments in the Heller case. Several briefs to the court have argued that DC has the right ban handguns in order to protect its citizens, with little regard for higher statutes and the constitution.

On the tank, RPG, and pocket nuke tangent, there are people who own tanks and APCs. I have not heard of them commiting crimes with them. (The M60 from the much telivised California incident was stolen from a government armory…oops!)

Over the years anti-gunners have argued that various guns are too big, too small, too loud, too quiet, too powerful, not neccessary for military use, not neccessary for sporting or hunting use, had no practical use, fired too fast, had too many bullets, and a few other things. There are many who simply want more restrictions, but the largest lobbying groups (Handgun Control Inc. and the Brady group) have made repeated statements about their eventual aim to eliminate all guns…sometimes regardless of constitutional issues. That last part disturbs me the most!

kluge · December 11, 2007, 6:33pm

Raimius, we’re not talking about policy arguments here - we’re talking about what the constitution prohibits Congress (and probably the states - but that’s another question) from doing. To me they’re entirely separate issues, and this thread is about the constitutional issue.

Ninja - the reason no one has overturned the statute is that up until now the weight of judicial opinion - including Miller - was that the second amendment did not guarantee an individual right to own weaponry outside of a (true) militia context. If that is overturned by the current Supreme Court, the next question is “What is the scope of the individual right to own guns as guaranteed by the second amendment?” Unless you’re one of those devilish “activist judges” I keep hearing about, you’re not supposed to engage in policy considerations, you’re simply supposed to enforce the constitution as written. So the question becomes, what does the second amendment mean by an [individual] “right to keep and bear arms” - as written, not as you or the current supreme court think it “should” mean? If it’s not tied to the militia clause, what limits the kind of arms an individual has a right to “keep and bear” under the language of the constitution?

As for “reasonable regulation”, that only comes into play when your exercise of your constitutional rights infringes on someone else - like when you shout fire in a crowded theater, or hold a demonstration which blocks traffic. You can say anything you want in your own home (although you can be sued for what you say if it’s libelous and you communicate it to a third party, just as the second amendment won’t help you if you shoot someone.) So what kind of “reasonable regulation” would prevent a [very rich] man from obtaining virtually any sort of munitions he wants, unless or until he actually uses them is some way which harms someone (which would still be illegal, regardless of the outcome of the supreme court case.)

I understand that the pro-gun crown wants to have that “thumb on the scales” that a second amendment victory in the supreme court would give them, but when you start to probe the consequences of declaring the second amendment as a constitutionally guaranteed individual right to keep and bear “arms” with no tether to the militia clause, you guys all start getting happy feet and coming up with excuses to limit that right to one extent or another - whatever you’re most comfortable with.

esmitty01 · December 11, 2007, 7:13pm

The liberal tyrants have started with the 2nd amendment what they plan to do to all of our rights. I think the constitution is quite explicit our right as citizens to own guns. Its not for the purpose hunting and sport shooting, although it covers that basis too (I am a huge hunter/gun owner–in case you couldn’t tell), it is for our protection, as citizens, against the government (and evil tyrants like Hillary Clinton). Where do they stop? Is freedom of speech next? When will the day come when we won’t be able to have arguments such as this one simply because freedom of speech is considered outdated or dangerous by tyrants. Whether or not you own guns, or believe people are responsible enough to do so, you should be scared by the fact that people are trying to take your rights away. BTW Mike Huckabee for president 08!

ninja.of.love · December 11, 2007, 7:26pm

I was trying to predict the future in my last post, not really express my own opinion. I would favor individual ownership of numerous weapons that are not firearms. Those weren’t excuses to limit the right, but what I believe could happen.

I do not know what Constitutional basis for gun rights limitation there is beyond the militia interpretation, which I still think is very flawed. The idea of the “well-regulated militia” likely affords the government some leeway in the matter, but I am not legally educated enough to know whether that regulation is a substantial infringement on the right to keep and bear arms. The declaration of the individual right to keep and bear arms would not eliminate the militia as an organized group of armed citizens. According to the lawyer for the plaintiff in the Heller case, only laws like the DC ban would be struck down, while waiting periods and background checks would not.

What limitations do you see that are Constitutionally justified except for the “well-regulated militia” portion of the 2nd Amendment? I don’t believe I know everything and I try to stay open-minded.

If SCOTUS rules for the individual right, I tend to believe that the courts would eventually shake down federal law to the point that semiautomatic and automatic weapons are legal, bayonets and under barrel grenade launchers are legal (but explosive grenades are not), .50 caliber sniper rifles are legal, and various design elements, like folding stocks and pistol grips, are also legal. The next question is one that deserves asking and I hope we get to the point where it’s the major topic of debate in the gun rights discussion.

parent2noles · December 20, 2007, 10:31pm

The SCOTUS has already ruled that A2 articulates a preexisting personal right.

In Miller [FindLaw</a> for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code](<a href=“http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=307&invol=174]FindLaw”>http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=307&invol=174) we find that the SCOTUS said:

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out ‘that king Alfred first settled a national militia in this kingdom’ and traces the subsequent development and use of such forces.

Adam Smith’s Wealth of Nations, Book V. Ch. 1, contains an extended account of the Militia. It is there said: ‘Men of republican principles have been jealous of a standing army as dangerous to liberty.’ ‘In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.’

Here we find in Miller who is the Militia, what the Militia is supposed to do and where arms for the Militia originate. We also note that Miller plainly states that the arms are to be that in common use at that time.

It would be very reasonable to assume that periodic training would be required for everyone owning firearms. Personally, I don’t find that a bad idea.

kluge · December 20, 2007, 10:44pm

…which scrupulously avoids the question of what the Amendment means in an era when we actually do not have such a militia. You can say (or define) “militia” is anything you want, but the bald fact remains: we don’t have a “militia” as that term was used in the Constitution any more. You can say I’m part of the “Militia” as you define it - but I’m not. I’m not the guy the framers of the constitution had in mind; giving me a gun doesn’t serve the purpose they wrote the second amendment for. (You either, but I know you’ll argue that.)

Add the fact that the Supreme Court held that a personal right to “keep and bear” a sawed off shotgun was not guaranteed by the second amendment (notwithstanding it’s superiority over a Saturday night special for militia purposes) and you’ve got a conundrum.

Sorry, P2N: no magic answers to this one.

parent2noles · December 20, 2007, 11:02pm

Actually kluge you and I, being older ducks, are part of the “alarm list”: “The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should ‘contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, …’ Also, ‘That every non-commissioned officer and private soldier of the said militia not under the controul of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm, &c.’”. But neither of us live in MA…

Here we find in U S v. CRUIKSHANK, 92 U.S. 542 (1875) [FindLaw</a> for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code](<a href=“http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=92&invol=542]FindLaw”>http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=92&invol=542) the preexisting nature of the right.

“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.”

While A2’s original use may appear to be obsolete, it has not been removed nor constrained. The SCOTUS in Heller will freshen things up a bit. ;)

I do agree that the logic in Miller is flawed.

kluge · December 20, 2007, 11:32pm

It will be hard to craft a response to the second amendment in the twenty-first century without using “flawed logic.” If we still had an actual militia which we used for the defense of the nation (manned by gun totin’ civilians like you and me, only younger ) then the answer would be easy, and logically consistent. Once you remove the fact of an extant militia, but posit an unfettered individual right to engage in activities - which might otherwise be regulated or restricted - specifically for the purpose of facilitating participation in a militia, you have a dilemma.

There is no easy or “logically correct” answer.

drb · December 21, 2007, 3:30am

This does clarify one point - the gun ownership permitted by the 2nd amendment should be limited to males.

parent2noles · December 21, 2007, 5:56am

Good point…the vote should as well. ;)

parent2noles · December 21, 2007, 6:03am

I don’t think so, kluge. The militia may be revived at any time. The fact the US has tolerated a standing army for some time does not nullify the existence of the militia - which is the people exercising their right to keep and bear arms. We should re-impose the regular training requirements, however. I find that aspect most appealing.

I will go out on a limb and say that women have the right as well. Kluge, do you agree women have the right, too? Its not specifically articulated in these old cases.

I would suggest it would be constitutional that all people with firearms have to:

<ol>
<li>Enroll for periodic training</li>
<li>Participate in drills</li>
<li>Have to buy their own M-16 rifle, ammo and associated equipment</li>
<li>Have to maintain that equipment in good order</li>
<li>Could receive a financial penalty if they do not comply</li>
<li>Reasonable accommodations will be made for folks with infirmities.</li>
</ol>

kluge · December 21, 2007, 10:27am

I’d go along with that on Constitutional grounds, P2N. (And yes, I’d include women.) Of course, anyone objecting to service could opt out - and not own a gun or serve in the militia.

drb · December 21, 2007, 6:26pm

P2N, do I understand you correctly? You would agree to limitations on gun ownership - e.g. training requirement, registration in some time-limited fashion (otherwise how could training and readiness be monitored), equipment inspection?

Sorta like what we do with driver’s licenses?

parent2noles · December 21, 2007, 9:22pm

A driver’s license represents a privilege allowed to a person by the state.

A2 recognizes the right to keep and bear arms - even apart from the militia. (See post # 310)

I see nothing wrong with training and enrollment for those that wish to buy, keep and use their own M-16 rifle and perhaps all firearms. Frankly I see periodic militia training beneficial for our country. Competency of use would be enhanced, which includes firearms safety training. Criminals would certainly think twice about bad acts when a majority of the population is trained to use arms competently. Sense of duty and country would be increased.

kluge · December 21, 2007, 9:41pm

There’s actually a lot of intellectual coherency to P2N’s position, as I see it. (I came to the same conclusion from the opposite direction as P2N, so I have to say that ) Regardless of whether you choose to view the second amendment as stating a personal right, with an “explanation” for why that right exists, or a - for lack of a better term - “collective” right to maintain militias, P2N’s formulation works.

Anyone who wanted a gun, but wasn’t willing to commit to the Militia obligation (which was assumed in 1789) could opt out - but by doing so would waive their personal right of gun ownership, and only have such a privilege as might be conferred, under such regulation as the governing body saw fit to impose. That solves the constitutional issue, and “merely” leaves the policy issue.

drb · December 21, 2007, 10:45pm

But P2N is now suggesting A2 may be a conditional right - conditional on being trained, being monitored for proficiency, being inspected - that is very different than the “you will take my gun when you pry it out of my cold dead hands” philosophy.

parent2noles · December 22, 2007, 7:19pm

I have never said any right is without restrictions - including A2.

I will say that some of the gun rights hyperbole merely articulates how seriously those advocates take A2. That conviction should not be underestimated. Gun rights advocates will fight for an unconditional right subject to commonly understood limitations such as no felons, drug abusers, etc. This is probably the correct position and I suspect this will be affirmed by the SCOTUS.

A2 is not conditional; as if you enroll you get to keep your M-16. I simply find service to the US in the form of national militia service appealing and constitutional. Further, I find such linkage purposeful and would increase safety of firearms handling and sense of duty to country. Plus, were there a hurricane or other natural disaster there’d be no widespread looting as members of the militia would be everywhere.

Lest I start you to think you’re dreaming that I’ve changed my position note that I said “M-16” which by definition is a fully automatic rifle. I do believe that enrollment and participation in the militia to keep and bear an M-16 is reasonable, since currently there is a law (the National Firearms Act) that says machine guns must be registered. Enrollment in the militia would be a form of registration.

I would find this a reasonable restriction on A2. Kluge’s deer rifle and Glock pistol would not have to be registered subject to the current national restrictions (not 9th Circuit).

US Supreme Court to hear Second Amendment case

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