SCOTUS takes up the D.C. gun case
Yes. After waiting a week on pins and needles, the Supreme Court has decided to take up the D.C. handgun case:
The Supreme Court said Tuesday it will decide whether the District of Columbia can ban handguns, a case that could produce the most in-depth examination of the constitutional right to “keep and bear arms” in nearly 70 years.
The justices’ decision to hear the case could make the divisive debate over guns an issue in the 2008 presidential and congressional elections.
The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday’s announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.
The main issue before the justices is whether the Second Amendment of the Constitution protects an individual’s right to own guns or instead merely sets forth the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.
Gun-control advocates say the Second amendment was intended to insure that states could maintain militias, a response to 18th century fears of an all-powerful national government. Gun rights proponents contend the amendment gives individuals the right to keep guns for private uses, including self-defense.
Alan Gura, a lawyer for the D.C. residents who challenged the ban, said he was pleased that the justices were considering the case.
Allah: “Two hundred seventeen years after ratification, we finally get to find out what ‘well regulated militia’ means.”
After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?
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As we know, a “militia” does not exist without its individual members. It is the individual members’ right, therefore, to keep and bear arms.
I have confidence that SCOTUS will do the right thing here.
I’ve been hoping that the Supreme Court would take up this case. Now here’s to praying that some common sense legislation comes out of this.
My gut tells me that the court will side with gun owners in the end - but it will only breed cries of a “Right Wing Court” from the lefties and a hue and cry for a Democratic President to appoint “Progressive” Judges without an “Agenda” that presses for limiting rights of women and kow-tows to the NRA.
I can hear it now.
Finally!! I don’t think taking away guns from law-abiding citizens is the answer. Criminals don’t follow the law, that why their called criminals!!!
To think that the 2nd amendment is a collective right while amendments one and three through ten are individual rights would be completely insane.
Anyone reading the Federalist Papers would see that the people who owned guns were not owning them just to protect their government, but “to protect people from their government.”
Besides, “militias,” were individuals in their private homes.
There is nothing collective about this right.
Respectfully,
eric
http://www.blacktygrrrr.wordpress.com
The history of the Bill of Rights lies not with Federalist principles, but with Anti-Federalist principles. Hence, the core issue at the heart of this case is whether the individual’s right to own a firearm is a “fundamental” right incorporated by the 14th Amendment. The distinction between “the people” and a “well regulated militia” is a chimera used by the anti-gun crowd to confuse the issue.
There are several SCOTUS opinions clearly establishing that “the people,” as meant in the Bill of Rights is NOT the Government, but individuals. And, to bring up the infamous Dred Scott opinion, Chief Justice Taney’s list of “horribles” about rights being extended to freed slaves included his fear that they would be armed, and assemble in public. This would have been a very bad thing, in the eyes of a pre-Civil War Southern Justice.
WOO HOO, boys and girls. The fight is ON.
By the way, in all likelihood, the Supreme Court will probably apply reasonable time, place, and manner restrictions (like the ones applicable to the First Amendment) to the Second Amendment. And, if they are smart (which they purportedly are), they’ll study the history and draw the distinctions necessary between crew-served weapons (which traditionally belonged to the militia), and individual arms that individual citizens were intended to use for militia duties, which did NOT include “specialized” weapons such as grenades, etc.
Eric, that’s a tyrannical government. And a government that is more interested in protecting itself while taxing the heart and soul out of its citizens (think Kelo), etc., is a tyrannical government.
This is such good news. I pray that they will do the right thing and strike down our clearly unconstitutional gun laws. If they rule in favor of the gun laws, then our fate is sealed. It will just be a matter of time before the only people who have guns will be the government and the criminals (who are getting harder and harder to distinguish from each other).
I’ll be very cautious in my enthusiasm.
Kelo
McConnell vs. FEC
Roe
etc.
Although I’m ecstatic that the SCOTUS is finally going to hear this issue out, I am deeply concerned over their ability to make the correct decision. Nothing would be worse for this country’s conservative base than the hear that they have decided that the 2nd Amendment doesn’t apply to THE PEOPLE. God help us all and give the SCOTUS the wisdom and the understanding to do the right thing. Amen.
This is only one of the many reasons why all gun owners should join the NRA. Fortunately, Oklahoma is one of the last free states where the government actually supports the peoples right to keep and bear arms without requiring us to bend over backward and touch our nose to the ground for it.
509th Bob said,
Wouldn’t that be legislating from the bench? I thought there had to actually be a case in which that kind of determination would be appropriate. Is this such a case?
This is true. Especially considering that if they misinterpret it, they may end up with the people’s right to arm bears. Or something.
Now we wait.
Right_on,
It would not be “legislating from the bench,” because there are already a host of federal and state laws in place. Instead, it would be applying standards for “reasonable” application of existing laws. So, for example, would felons have the right to carry firearms. Answer: No. Alreadly illegal. 18 USC 922(g)(1). Would every firearm be allowed? Machineguns, mortars, rocket-propelled grenades? Nope. Handguns COULD be regulated on size (no Saturday-night specials for easy concealment), by the way. But the underlying principle at the time of the adoption of the Bill of Rights was that the average citizen should have available a weapon of equivalent function as a military-issue firearm (a musket, for example). The rationale was not the protection of hunting, it was that an armed citizenry posed a threat to a government that might become intent on imposing a tyranny, and that the regular or professional military’s loyalty would lie with the government. That is the purpose of the Second Amendment. It is the Anti-Federalist’s “check[s] and balance[s]” on the Federalist form of government that they feared was being created under the Constitution.
The right to bear arms is explicate, and constitutionally guaranteed, although the right to keep and bear other things is not. For example, there is no constitutional guarantee to keep and bear knives, pillows, rope, etc.
A knife is a tool, as is rope, but a pillow is a comfort item. All can be used to commit violent criminal acts. It would seem to me that the states should legislate the definition of what constitues a crime, regardless of what type of instrument is used, and leave constitutional interpretation of our rights to the SCOTUS.
There is only one logical way to rule on this issue, and I’m sure the ruling will make freedom-loving conservatives, like me, very happy.
I think I am going to pay my local gun store a visit within the next week. Several times probably.
Ditto. Probably best to be grandfathered in, just in case.
So when will they actually hear arguments/render the decision?
I am amazed that such thoughtful — and experienced — people are assuming SCOTUS will rule correctly on this issue.
My fear is that the liberal “greater good” theories will sway them. It has been proven that the Court wants what it wants, and cares less and less about what the Constitution really says.
Bob,
I understand your argument, but I still have a problem with laws limiting the 2nd Amendment standard. Where does that document state that felons cannot keep and bear arms? Now, if there was an amendment that stated “Only American citizens shall have the right to keep and bear arms, and those citizens convicted of felonies shall be stripped of their citizenship rights,” then I think I would have less of a problem with this issue.
The issue of machine guns, mortars, and RPG’s is a related, but different issue. There is no reason for to own any of those items, unless conflict, not personal defense is your goal.
I can’t see this SCOTUS taking away our gun rights.
Can you cite when that has happened since Roberts was appointed? I think we have 3 strick constuctionists on the court now, don’t we? I thought that’s what all the liberal whining was about during the most recent confirmation hearings.
I meant “strict”, not strick…sorry!
The legal stretch that “the people” referenced in the Second Amendment are a different class than that of the First Amendment is absurd.It would bring an end to the Bill of Rights for “the people”.
Militia:
1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
3 of the 4 definitions include the term ‘citizens’. The fourth uses the words “able-bodied males”.
So, three scenarios:
1. They muff this decision and limit gun ownership.
2. They decide, in my mind, correctly, and hold that ‘citizens’ refers to individual rights.
or 3. Only men can own guns - and only able-bodied ones at that. That means no more overweight beer-drinking deer hunters in the woods by my house.
Although liberals and most Dems believe that gun owners constitute a different, lower class of human, you are absolutely correct.
I still don’t think this court is so influenced by leftist thought that they will rule to take away our gun rights.
While I am cautiously optimistic, the SCOTUS has so many asinine rulings in place that my optimism is somewhat tenuous. This has the potential to either be the greatest strengthening of the 2nd Amendment in my (admittedly somewhat short) lifetime or the gravest blow dealt to it since the Bill of Rights was signed.
Arguments will be heard early next year. No word yet on when the decision will be announced.
Let’s hope the SCOTUS decides to support the Constitution…something courts haven’t done lately.
Just the fact that the current SCOTUS is willing to hear this gives me great hope!
IMHO, previous liberal SCOTUS panels didn’t want to touch this issue with a ten foot pole, because they knew how they would have to rule.
Hey, I resemble that remark! Nyuk, nyuk, nyuk.
Outstanding news. While I am aware that many on the pro-individual rights side of this argument fear a decision against us, I personally welcome the fight. It has been far too long in coming. Decades of incremental anti-gun legislation have choked what is an essential right down to a “privilege” granted at the whim of bureaucrats and self-serving, corrupt politicians. A determination of this issue by SCOTUS will at minimum define clear battle lines for both sides. Win or lose, at least we finally know where we stand.
Bring it on.
Sorry - didn’t mean to implicate anyone specific…. lol
And by the way - point away from my horse pasture.
Right_on,
I understand your concerns. You are a strict constructionist (as am I, mostly). However, as to felons, all 13 colonies had laws against gun ownership for what are now considered “prohibited person.” Some of those original laws were clearly and indisputably racially-inspired. The federal government adopted that historical line of reasoning and nobody challenged it (at least not successfully).
As to a “reasonableness” standard, however, it is the usual common sense adaptation to reality. Hence, incitement to riot (screaming “fire” in a theater), treason, threats, and other verbal communications can be prohibited, even though the First Amendment explicitly says that “Congress shall make no law…”
As to crew-served weapons, those always belonged to the militia. Specialized weapons, in the 1700s, consisted of grenades and weapons which were only borne by trained regulars. Given the Anti-Federalist viewpoint (which is the source of the Bill of Rights), the Anti-Federalists were not trying to create a competing army, just an implied threat to keep the Government honest. Some legal commentators poo-poo the theory that the Framers would embrace “insurrectionist theory,” but the fact was that the Framers had just completed a Revolution, and they understood how (for lack of a better term) “Revolutionary theory” was, indeed, applicable to their society.
Expect a decision sometime after June…just in time for the elections.
Amen to that!
Thanks for your insight, Bob!!
I agree with Allahpundit at HotAir on this one, this is likely to have a bad outcome. The situation is somewhat akin to our illegal immigration problem. Our current system, flawed and broken as it is, is much more preferable to the ‘reform’ that was attempted. Anytime SCOTUS gets involved, one cannot be assured of the outcome.
Roberts and Alito. Right up there with just about anything this administration has managed to do.
But think of the recent eminent domain ruling. Some of those justices are very scary.
Political correctness is the supreme law of the land.
I’m a bit leery of our Supreme Court these days. As with affirmative action, when you appoint people on the basis of skin color instead of competence, you get a Dr. Rice, so also is competence in question when appointments are made primarily on the basis of Catholicism and the abortion issue.
By the way, if you haven’t already, it’s time to renew your NRA membership (and pay your yearly dues!). Now would be a good time to also enroll your wife, son, daughter…your pet goldfish…
Also, I’ve been thinking about this a lot today. And while I do acknowldge that there’s always the chance the SCOTUS will go and do something really, really stupid (like striking down the TRUE meaning of the 2nd Amendment), I know A LOT of people that wouldn’t had over their arms no matter what. “From my cold, dead hands…”
FREEEEEEDOMMMMMMMM!
Molon Labe. It’s tattooed on my arm for a reason.
This should be interesting. If the decision is the individual’s right, which it should be, then I am going to love watching Shrillary talk about this during the general election debates. This will be very entertaining. You think she’ll have her hunter’s permit by then?
Our family stands with the Molon Labe group to include my younger brothers. Most of my neighbors in Idaho feel the same way too. With the eminent domain ruling the SCOTUS made allowing the big land grab I am a little nervous about which way this could go
We have been inching our way to secular socialism for quite some time now. The Supreme Court is a political body that is evolving in accordance with secular socialism. Individual rights have been increasingly restricted in virtually every area. This agreement by the Supreme Court to interpret the 2nd amendment must be viewed with great concern.
OK, Here I go showing my abysmal ignorance again. Just what is Molon Labe? Someone please educate me.
Molon Labe is Greek. It is credited to the Spartan King Leonidas at the battle of Thermopolaye. When ordered by King Xerxes to lay down his arms, Leonidas responded with “Molon Labe”. It means, “Come and get them.” And it looks cool written in ink in Greek.
Here you go…
Thanks Archon and PBoilermaker. Maybe this is what David Koresh said to Janet Reno. Her response was about the same as Xerxes, only he spared the children.
right_on…
Reasonableness has always been a standard applied to SCOTUS decisions. The problem comes to down to who’s reasonablness is used to determine reasonablness. Will it be the Roberts, Alito, Scalia, and Thomas standard or will it be the “other” side.
Think back to the 5th ammendment case of Miranda and the 4th ammendment case of Terry vs Ohio. The first was skewed to the “other” standard while Terry leaned to the “Right” standard.
I too am cautiously optimistic. If I am wrong, my firearms will not be turned over to anyone, however, I could easily be convinced to give the invaders my ammo as long they don’t mind the method of delivery.
#49
One quibble: Beta was pronounced as a labial stop in the 5th century BC. The proper pronounciation is “mo-lone lah-beh.”
I think I may buy myself one of those new-fangled cartridge guns to supplement my flintlocks, just in case…
The real question is not of individual ownership or not. The question is what constitutes a militia. If a militia is the people then the people have the right under the 2nd amendment to posses firearms. If as many antigun activists claim, a militia is a government organization, or the national guard. Then only memebers of thses units may posses firearms. The loop hole then is that any and all who want to be in the guard cannot be denied, hence then under liberal thinking all persons again have the right to posses firearms.
(please excuse any poor spelling in my comments as I am a victem of public education)
It doesn’t matter how they rule unless they plan to try and disarm about 200 million of us. One possible benefit…if they rule for D.C., Hillary is toast. A Liberal may not get elected again for 50 years.
I am really concerned that SCOTUS will be hearing this and what exactly they will decide. I’ve read all major SCOTUS rulings since its conception and have been shocked at how many times they made a poor ruling.
As a layperson who has spent a lot of time studying the Constitution (I’m a stay at home mom and sometimes I get bored and need to seriously engage my brain), I believe that you can’t possibly look at the 2nd amendment as not having anything to do with individual rights when the other amendments do. I can only hope that the justices look at it this way as well, as it should be looked at. But let’s be honest - justices personal opinions are a big part of the rulings, even when it gets in the way of what the Constitution really says.
As for me and my husband, we live in Oklahoma, and I can tell you that there is no way (if the ruling were to somehow go against the individual rights to bear arms) that we will hand over our guns to anyone!
Time to make sure our NRA membership is renewed and watch how this unfolds next year.
vickisoup, it’s not -just- that a militia is made up of it’s individual members, at the time of the writing there was no form of standing army. The national guard, that the control nuts like to pass off as analogous to the “militia” of the so called militia clause would not have been allowed to exist then. This was a right of the people plain and simple (and the entire militia clause is just one reason for it).
I’m glad the SC will hear the case and hoping for the best. We’re not going to get a better SC any time soon, I just hope that it’s good enough. bk425
I, too, am uneasy about the verdict in this case from a Court that gave us the Kelo decision in direct violation of the Bill of Rights. I have proposed a few months ago (at AtlasShrugs) that the US Constitution (and similarly the states’ constitutions) should be amended as follows:
The Congress shall have the power, by a two-thirds vote of each House, to nullify any decision by any Federal court.
With such an amendment, it is possible that the Kelo decision could have been overturned, for example. With the threshold at 2/3, legislative nullification would be virtually impossible without wide bipartisan support.
We are taught in school that the three branches of government have checks and balances over each other. That’s not really true. The only check on the judiciary is impeachment, which is a rarity. There should be something like the veto-override process for court decisions. I think my amendment is a good way to start.
Any takers?
Haven’t had a gun in years, guess it’s time…
They can’t deal with 20 million illegal aliens, how will they deal with 200 million armed citizens?
I am not so optimistic about this. If the court rules to overturn the ban the local authorities will still be able to regulate who is “entitled” to this right and that will of course be the privileged & well connected.
If the court upholds the ban it will be used as a precedent for other bans… I fear nothing good can come of this.
John Jay the first chief justice of the Supreme Court left that branch. He felt that it did not have enough POWER to help his fellow citizens in these United States. Now it has TOOOO much power thanks to the whimpy folks in
Congress who are so afraid of losing thier money and power base that they will not stand up for the honorable decisons that they should be making to lift up this great country and her people. A quick look at a recent decison on eminent domain will show the SC at its worst.
That would be their and decision! (-:
What is the Militia? That’s easy–it’s defined in the law! US Code Title 10, Section 311:
Let’s say the decision goes against the “individual”. Are all the chest thumping gun owners really going to resist such a ruling or is it all mindless bravado. Guess in time we will see just how well so many appreciated the Founding Father’s purposes for putting the 2nd Amendment in the Bill of Rights. By the way, the “right” to keep and bear arms is NOT granted by the Constitution, it was presumed to be an ‘inalienable right’ and the 2nd simply instructs the government to not “infringe” on that “right” that preexisted the Constitution.
There is a difference between owning a handgun for self defense and carrying around a machine gun. Assault weapons aren’t needed on the street and need to be controlled as best as possible.
That’s all I will say on the subject. This has been debated enough.
You’re absolutely right. A handgun should only be used to fight your way to the rifle you should have been carrying in the first place.
Last I checked, it was a Bill of Rights, not a Bill of Needs. Do I need a 10.5 inch barreled, fully automatic AR15? No, I don’t. But it sure would be fun to own one without paying an arm and a leg for taxes and markups.
Beyond that, what is the definition of an assault weapon? Any weapon can be used to perform an assault (kind of the point of the weapon actually). But let’s think about the purpose of the Second Amendment for a minute. The Founding Fathers didn’t put the 2nd in the Bill of Rights so people could hunt. They didn’t even do it so that people could protect themselves from street crime. It was put in there so the people (who formed the militia, America did not have a standing army in the 18th century) could defend themselves from a tyrannical government. The Founding Fathers knew that power corrupts, and that absolute power is actually pretty nice. In the 18th century, it was expected that every memeber of the militia (defined above) provide their own musket, flintlock pistol, and hatchet. This was the standard for the day, and was the same thing that soldiers in the Nation Guard (remember, no standing army) were armed with. Larger pieces of equipment, things that required a pack animal to move or a crew to operate, were to be provided by the government in case of call up of the militia.
To be analagous with that, it should be expected that every person who wishes to be a member of the militia to provide their own personal weapons which are comparable to the weapons used by the US Military. That means select fire AR15s, submachine guns, handguns, and all of it with no limitation on magazine size.
Anyway, that’s my take on it. I don’t have a law degree, and I study history for fun. Take it for what it’s worth.
The US Army was founded in 1792, so we did actually have a standing army in the 18th century. However, we didn’t have a standing army at the time that the Bill of Rights was ratified, so Archon’s point still stands.
Don’t argue based on guessing–read the pleadings at Gura & Possessky, P.L.L.C. I especially like the conclusion in the amici for the cross-petition by Donald E. J. Kilmer, Jr.. Brilliant; just absolutely brilliant!
This is the intent of the second amendment.
The fact that the Founders feared “The Man on the Horse,” or a dictator backed up by a permanent standing army, lead directly to the idea of the universal Militia. Though some favored the idea of a “select” or “elite” militia, Madison’s idea of a universal Militia carried the delegates.
Here’s why:
and
Congress made good on the militia via the Militia Act of 1792. That act stated:
In both fact and law, the concept of a Militia consisting of all hale male citizens of military age (which now includes females as well) who report armed with their own personal weapons has been unbroken since 1792. Even after the Dick Act (1903) was passed creating the National Guard, the US Code contained this language.
The Militia fought in 1812, the Civil War, the Spanish-American War, and was called out to guard certain installations and as “coast watchers” immediately after Pearl Harbor.
The fact that there are 85 million *ARMED* Americans is a factor that any adversary must take into consideration in their calculations for war against the United States.
The fact that there are so many of us is the reason why “gun control” has stalled in Congress and why since 1986, 48 out of 50 states now allow their law abiding, licensed, citizens to carry concealed weapons.
georgej-
Great post!
If I recall the 46 out of 50 states permit concealed carry. Il, NY, NE, and WI don’t permit it at all.
Even liberal CA permits concealed carry if you are of the elite (hint madame pelosi)
GSP
That’s about right. I am a certified NRA Instructor (though that’s not what I do for a living), and have had extensive firearms training. I looked into a CCW permit, and the process is daunting, not to mention expensive. You will spend at least $400 to do this, fill out a 22 page form, and get at least 2 letters of “good character” and wait. That still doesn’t guarantee you will get your CCW permit.