Scope of 2nd Amendment Questioned

[satellite66]

Thursday, Dec. 7, 2006 9:08 p.m. EST

Scope of 2nd Amendment Questioned


In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday that the Second Amendment right to bear arms applies only to militias, not individuals.

The city defended as constitutional its long-standing ban on handguns, a law that some gun opponents have advocated elsewhere. Civil liberties groups and pro-gun organizations say the ban in unconstitutional.

At issue in the case before a federal appeals court is whether the Second Amendment right to "keep and bear arms" applies to all people or only to "a well regulated militia." The Bush administration has endorsed individual gun-ownership rights but the Supreme Court has never settled the issue.

If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the amendment's scope. The court disappointed gun owner groups in 2003 when it refused to take up a challenge to California's ban on assault weapons.



In the Washington, D.C., case, a lower-court judge told six city residents in 2004 that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who want guns for protection.

Courts have upheld bans on automatic weapons and sawed-off shotguns but this case is unusual because it involves a prohibition on all pistols. Voters passed a similar ban in San Francisco last year but a judge ruled it violated state law. The Washington case is not clouded by state law and hinges directly on the Constitution.

"We interpret the Second Amendment in military terms," said Todd Kim, the District's solicitor general, who told the U.S. Court of Appeals for the District of Columbia Circuit that the city would also have had the authority to ban all weapons.

"Show me anybody in the 19th century who interprets the Second Amendment the way you do," Judge Laurence Silberman said. "It doesn't appear until much later, the middle of the 20th century."

Of the three judges, Silberman was the most critical of Kim's argument and noted that, despite the law, handguns were common in the District.

Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment's language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

"That's quite a task for any court to decide that a right is no longer necessary," Alan Gura, an attorney for the plaintiffs, replied. "If we decide that it's no longer necessary, can we erase any part of the Constitution?"

Link

[pickenup]

Funny how ALL the other amendments are recognized to be INDIVIDUAL RIGHTS, but they want to single out the 2nd, as somehow meaning something different.

The supreme court will simply refuse to hear this case, as they have in the past.

[Marlin]

I believe that the entire Bill or Rights package was about INDIVIDUAL RIGHTS......

[armedandsafe]

Does a RIGHT cease to exist just because it is (at this moment) not necessary?

Case in point: I'm asleep in my own house, alone with only a cat or two within earshot. Do I need the right to speak freely?

Pops

[45Smashemflat]

I guess only the militia has the right to free speech, religion, freedom from unwarranted searches and seizures, etc. After all, if "the people" mentioned in the 2nd ammendment = milita then that must carry through to all aspects of the Constitution where it mentions "the people" doncha think?

[southernshooter]

Originally Posted by Pickenup

Funny how ALL the other amendments are recognized to be INDIVIDUAL RIGHTS, but they want to single out the 2nd, as somehow meaning something different.

I never have figured that out either
Funny ain't it

[Marlin T]

DC is going to lose, there are too many documents that just can't be overlooked.

In fact, I hope that it does make it to the Supreme court. Maybe all of the states will HAVE to revisit there own unconstitutional laws not to mention all of the unconstitutional federal laws.

This might make it easier on who to vote for, instead the way that I have to vote now. For those who support the constitution and those who don't. Easy choice for me, but limits the issues if you know what I mean.

[gmirsky]

Originally Posted by Marlin T

DC is going to lose, there are too many documents that just can't be overlooked.

I agree. This will be the first domino that starts a cascade. It will also shoot down the false assumptions many of the anti-gunnies spout from the Miller case. I also find it funny how a sawed off shotgun was not considered by the SCOTUS as a military weapon when they (sawed off shotguns) were modified in the field during WWI (in other words the stock sawed off) as trench bunker clearing weapons or in the Bannana Republic operations in Central America in the 1920's in jungle fighting.

[southernshooter]

Welcome Gmirsky

[armedandsafe]

I also find it funny how a sawed off shotgun was not considered by the SCOTUS as a military weapon when they (sawed off shotguns) were modified in the field during WWI (in other words the stock sawed off) as trench bunker clearing weapons or in the Bannana Republic operations in Central America in the 1920's in jungle fighting.

The Miller decision did not find that sawed off shotguns were not part of military armament. They found that they could not take "judicial notice" of whether they were or not, because nobody showed up to argue the case on the part of the defendant, Miller. In other words, "Since there are no arguments presented on behalf of the defendant, we can't render a judgement. Send this back to lower court to be looked at again."

Pops

[Shooter45]

I have a friend who thinks the Gov't is afraid "We The People" will eventually take up arms against them.

With all the Gov't corruption, stealing, giving away military secrets,destroying the Constitution and Bill of Rights, selling out our country,etc,......it sure makes you wonder.

[gmirsky]

Originally Posted by armedandsafe

The Miller decision did not find that sawed off shotguns were not part of military armament. ...we can't render a judgement. Send this back to lower court to be looked at again."

Not rendering a judgement is a decision of inaction. Ask any psychologist -- it is an act of procrastination. They passed the buck to the lower courts in an act of desperation.

The SCOTUS had full access to military records and accounts in WWI and in the Bannana Republic actions. The chose to disregard data that would influence an decision contrary of what their politcal masters wanted. The SCOTUS could have easily made a proper decision with the information on hand.

[gmirsky]

Originally Posted by southernshooter

Welcome Gmirsky

I am honored to join your esteemed ranks.

[Marlin]

Delighted to have you at TFF, gmirsky.

At this particular juncture, I sure wish we had just one more less liberal and activist Justice on the Court.....

[gmirsky]

Originally Posted by Marlin

At this particular juncture, I sure wish we had just one more less liberal and activist Justice on the Court.....

I just hope in 50 years or so they are teaching the kids in school these were the days of the resurgance of "Yellow Journalism" and "Renegade Judiciary".

It is sad that we must live through such times but our kind will eventually prevail since the other side is literaly and morally bankrupt of ideas.

I do have one prediction... If Hillary or another like her (Obama?) do get elected, expect a resurgence of Militia's. This time they will be more duly populated with people from the mainstream instead of the "so called" fringes. Then again, anyone who believes in true constitutional rights is a fringe element (Isn't that what Breyer said in his book in so many words?)

[EDavidq762]

This here answer the question rather well;

"2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness; that the right to property is before and higher than any constitutional sanction; that the free exercise and enjoyment of relgious profession and worship, without discrimination or preference, shall forever be allowed; that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defense of himself and of the state; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like."

- Thomas M. Cooley, LL.D, [A Treatise on the Constitutional Limitations Which Rest Upon The Legislative Power of the States of the American Union" 6th Edition, Little, Brown and Company 1890.] (Outline of Declaration of rights for the protection of individuals and minorities, expected from states when forming/amending a Constitution).

Mr. Cooley was Dean of the University of Michigan's Law School, Michigan Supreme Court justice, and a nationally recognized scholar.

And, if that's not good enough, the 1856 U.S. Senate answered even better -

"...That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment . . . nor shall the rights of the people to keep and bear arms be infringed...." - Journal of the Senate of the United States of America, July 8, 1856.

[FiveGunsPerYear]

I've never been able to understand why so many people - so many judges - are so anti-gun..... I just don't understand what the problem is with these judges...