[luvtolean]

Since poor Dreamryder's thread showed a lot of interest in the Second Amendment, I thought I'd point you guys to what is possibly the most important bit of jurisprudence in the history of the Second Amendment.

There are currently two similar lawsuits going, and at least one is being heard by the Supreme Court, regarding the Second Amendment.

This specific case challenges the 1976 law in DC disallowing any new handguns to be registered in the district (or kept at your house), disallowing the use of a pre-1976 registered handgun being used in self defense even when registered to your home (or even keeping it in a different room in the house! ), and mandating that all long guns and shotguns be stored in such a way that they are disabled and thus not useful in self defense.

Parker et al brought suit that this law infringed on their Constitutional rights.

In district court, Parker v. District of Columbia, et al. was judged in favor of the defendants, meaning, law abiders still aren't allowed firearms in DC.

It is now being heard by the Supreme Court. As you can imagine, it is a huge battle, and the NRA and Cato, and Brady (San Francisco tax payers) and co are pouring millions into this fight.

Here's a link with most of the documents from the case. It's lots of reading, but if you're interested, it's fascinating.

Gura & Possessky, PLLC

It's particularly interesting to me as a Californian for two reasons:

1) San Francisco recently passed an ordnance banning handguns. This is being vigorously fought out in court, for now, San Franciscans are allowed their pistols. Not surprisingly, SF tax dollars are being shipped into this case on the side of the defendants.

2) States that do not contain the right to bear arms in their state constitutions (like CA) are also significantly impacted by this. At least one of the cases that challenged the AWB in Cali was shot down with the lack of a state guaranteed right to bear arms cited.

AFAIK, the SC has only had one case where they really laid down any direct interpretation of the Second. It was in the case of sawn off shotguns, and in that case, they ruled sawn off shotguns were illegal as they had no military application. The fact that this implies military style arms are afforded more protection than non-military type arms by the Constitution, and thus things like the AWB seem to be less Constitutional than a ban on .22 rimfire rifles would be, has not really been a useful argument, despite its validity.

For the 2000 AWB, the Supreme Court denied hearing the case challenging it.

[ccwilli3]

It is unconstitutional IMO... If you are an american citizen and not a felon, certain rights are guaranteed to you by the constitution. So yes, unconstitutional, but so are a lot of things in DC. it almost seems surreal in that some rights are protected there, but not others.

DC is not allowed representation, even their license plates say 'taxation without representation'... They have a rep, but she can't vote. (in which steven colbert totally NAILED her on his show! )

[BDA116]

Interesting timing on this brings me to point out that the Utah Supremes just ruled on a gun rights issue.
The University of Utah had banned all legal holders of CCW permits to carry on campus. The Utah S.C. just told them to pound sand as the ban is blatantly against the law.

[navydevildoc]

Originally Posted by luvtolean

It is now being heard by the Supreme Court. As you can imagine, it is a huge battle, and the NRA and Cato, and Brady (San Francisco tax payers) and co are pouring millions into this fight.

...

It's particularly interesting to me as a Californian for two reasons:

1) San Francisco recently passed an ordnance banning handguns. This is being vigorously fought out in court, for now, San Franciscans are allowed their pistols. Not surprisingly, SF tax dollars are being shipped into this case on the side of the defendants.

I know you have a hatred for a certain San Franciscan Senator... but let's be fair. The voters voted on it. It passed. That would seem to give the Board of Supervisors the green light to fight for it legally, with taxpayer money. If the voters didn't want it in the first place, they wouldn't be fighting in court for it.

[navydevildoc]

Originally Posted by luvtolean

AFAIK, the SC has only had one case where they really laid down any direct interpretation of the Second. It was in the case of sawn off shotguns, and in that case, they ruled sawn off shotguns were illegal as they had no military application. The fact that this implies military style arms are afforded more protection than non-military type arms by the Constitution, and thus things like the AWB seem to be less Constitutional than a ban on .22 rimfire rifles would be, has not really been a useful argument, despite its validity.

For the 2000 AWB, the Supreme Court denied hearing the case challenging it.

This is a constant state of debate in the military. Should the populace be armed with the same weaponry as the military? I personally think they should. My personal view of the 2nd ammendment is to not only provide for a citizen militia for national defense, but also to ensure the government, via the military, could not create a military-ruled regime in which the people could not hope to rise up against.

Congress also wanted to ensure this way back in 1878 when they passed Posse Comitatus.

It's like V says in V for Vendetta... People should not be afraid of their Governments... Governments should be afraid of their People.

The founding fathers had just come out of a bloody battle against a well armed nation's military. The second ammendment is one of the results of that.

[luvtolean]

Originally Posted by navydevildoc

I know you have a hatred for a certain San Franciscan Senator... but let's be fair. The voters voted on it. It passed. That would seem to give the Board of Supervisors the green light to fight for it legally, with taxpayer money. If the voters didn't want it in the first place, they wouldn't be fighting in court for it.

I hear you. But according to a certain lawyer wannabe taking Conlaw this semester, the state can only pass laws giving citizens additional rights to federal law, not laws that take away rights specifically granted by Fed law, especially rights spelled out in the Constitution. (think about the Civil War....)

The debate, as always, hinges on the "militia" term in the Second. Does the Second, like the first and third apply to all citizens? Or only those in the National Guard?

At the district level, the Court opinion said, even after stating the plaintiffs provided some very interesting historical arguments to the contrary, that these people were not part of a militia, and therefore not afforded Constitutional protection to bear arms.

I think this interpretation is patently wrong. I think reading through some of the citations put forth in the appelant's brief (like the Federalist papers) will show you the Second is a right for everyman. And that the framers intended for all citizens to have the right to bear arms.

Why does Miller test, the shotgun case, apply to a citizen, who was clearly not a member of a militia (he was a criminal as well), apply when we say he has no right to bear a sawed off shotgun as it has no militia purpose, but not to a law abiding citizen who wants to protect themself from criminals?

It will be truly fascinating to see how this plays out.

The opinion of the SC on this case could make some pretty serious differences in laws going forward, and the validity of current law.

I'm both scared and hopeful.

[luvtolean]

Originally Posted by navydevildoc

This is a constant state of debate in the military. Should the populace be armed with the same weaponry as the military? I personally think they should. My personal view of the 2nd ammendment is to not only provide for a citizen militia for national defense, but also to ensure the government, via the military, could not create a military-ruled regime in which the people could not hope to rise up against.

Congress also wanted to ensure this way back in 1878 when they passed Posse Comitatus.

It's like V says in V for Vendetta... People should not be afraid of their Governments... Governments should be afraid of their People.

The founding fathers had just come out of a bloody battle against a well armed nation's military. The second ammendment is one of the results of that.

Totally. As I said before, I think my right to own an AR-15, or a Beretta 92, is more assured by the Constitution than my right to own a single shot shotgun or .22 rimfire rifle.

[nhfirefighter13]

Originally Posted by navydevildoc

This is a constant state of debate in the military. Should the populace be armed with the same weaponry as the military? I personally think they should.

I've always wanted my own tank.

[navydevildoc]

Originally Posted by nhfirefighter13

I've always wanted my own tank.

I worked with a guy at Balboa who always maintained that if the military could have nuclear weapons, he should be able to have them too.

[nhfirefighter13]

I kinda draw the line there. Having some moron accidentily shoot himself while cleaning a firearm or possibly crushing somebody's Civic with their own personal M1A1 is a lot different than Joe Schmoe accidently pushing the button on a nuke.

[steingar]

While I tend to agree with the interpretation of the second ammendment militia-based, I'm no judge, and they will be the final adjucators. However, even if the Constitutional guarantee is overturned, I doubt any Federal or State govenment could successfully pass a gun ban in a democracy; there are just too many gun owners and I have discovered at least some to be a passionate bunch.

I am actually glad lots of people other than me own guns. Although its expensive (society foots most of the bill for all the wounded) I agree with luvtolean that it is essentially a good thing that the govenment have some reasonable fear of its population. Checks on gevernment are a very good thing, as the founders knew.

[jaim]

Man, this thread just died. It is a good thread too. This part of the second amendment: "...the right of the people to keep and bear arms, shall not be infringed." Says it all. The people does not mean just militia's but every citizen.
And yes people should have access to the same weapons the military has. Citizens should have the ability to protect themselves from their own government.

[Purpdust]

In the USA you have the right to have guns and even carry them on you if you have the right permit, Right?

So that being said, any Laws that prevent you from doing so on your own or Public property would therefore be against the law. Keep in mind, Private property owners are allow to make by-laws or site specific rules that can restrict your right to have guns on their property. For this very reason you can not carry a gun in an Airport, School etc.

With the UoU example, if they are a Private Organization they can make a location specific law that no guns are allowed. If you do not like the law then don't live in that area. (Assuming you are not grandfathered by the new rule/law)

Just my thoughts
Purp

[navydevildoc]

Originally Posted by jaim

Man, this thread just died. It is a good thread too. This part of the second amendment: "...the right of the people to keep and bear arms, shall not be infringed." Says it all. The people does not mean just militia's but every citizen.
And yes people should have access to the same weapons the military has. Citizens should have the ability to protect themselves from their own government.

But that's the problem with the 2nd ammendment... it is worded very poorly for today's english. You are not quoting the whole thing:

"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."

Those first 4 words are the problem. It could have been done sooooo much better:

"The People's right to keep and bear arms shall not be infringed"

They seemed to get wordy on this one ammendment. All of the others are straight to the point. The 5th ammendment also shows that they were counting the Militia as an organized entity:

"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..."

The "militia" is quite clearly something special.

[jaim]

Originally Posted by navydevildoc

But that's the problem with the 2nd ammendment... it is worded very poorly for today's english. You are not quoting the whole thing:

"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."

Those first 4 words are the problem. It could have been done sooooo much better:

"The People's right to keep and bear arms shall not be infringed"

They seemed to get wordy on this one ammendment. All of the others are straight to the point. The 5th ammendment also shows that they were counting the Militia as an organized entity:

"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..."

The "militia" is quite clearly something special.

True, it is worded poorly by current common english standards. But by legal 177x standards it was just fine. If you look at any of the amendments you will see that they tried to pack in all of the cases they could think of under one common amendment. Just look at the first amendment:

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

A whole lot of stuff packed into that one. Each phrase could have and on hind sight should have been a separate line in the Bill of rights.

The arguements for and against the second amendment will go on for a while until some administration declares marshal law and then all amendments will be off.

If you think about the times back then and what the colonists had to over come to break free of the English you can interpret the 2nd amendment pretty easily. But to me the 2nd amendment says the people have the right to form a militia and the right to keep and bear arms. They can be exclusive or inclusive but both are allowed. Plus these rights shall not be infringed. And the reason, unlike the other amendments, is right in the amendment. "being necessary to the security of a free state". Since it isn't worded for today's average english speaker it gets debated over and over. But to me it seems very straight forward.

Now if you think is says that the people can only keep and bear arms to form a militia then people can still keep and bear arms. They just have to form a militia to retain that right. But then what is considered a militia? So now if you use some historical reference you discover that a lot of the colonists used their own arms to fight the British and when forming the militias they had to use their own weapons. So now go back to the part of the 2nd amendment that says, "being necessary to the security of a free state" you could conclude that, bearing arms so at some future time you might need to form a militia is the right that is stated. Which again is fine, but wrong, it still lets the people keep and bear arms. The whole keeping and bearing arms part of the second amendment is about as simple as it gets.

[seamus]

Originally Posted by jaim

...If you think about the times back then and what the colonists had to over come to break free of the English you can interpret the 2nd amendment pretty easily. But to me the 2nd amendment says the people have the right to form a militia and the right to keep and bear arms. They can be exclusive or inclusive but both are allowed. Plus these rights shall not be infringed. And the reason, unlike the other amendments, is right in the amendment. "being necessary to the security of a free state". Since it isn't worded for today's average english speaker it gets debated over and over. But to me it seems very straight forward...

That's fine, but the government being for the people, of the people and by the people would make the government (and the militia) "the people". The militia is, in my mind, what the active military and national guard are now.

Originally Posted by jaim

Now if you think is says that the people can only keep and bear arms to form a militia then people can still keep and bear arms. They just have to form a militia to retain that right. But then what is considered a militia? So now if you use some historical reference you discover that a lot of the colonists used their own arms to fight the British and when forming the militias they had to use their own weapons. So now go back to the part of the 2nd amendment that says, "being necessary to the security of a free state" you could conclude that, bearing arms so at some future time you might need to form a militia is the right that is stated. Which again is fine, but wrong, it still lets the people keep and bear arms. The whole keeping and bearing arms part of the second amendment is about as simple as it gets.

Again, it's 20th century English and experiences. At the time this was written, there was no real regular Army, national or state run. The people's militia, formed and disbanded as required, supplied with their own personally owned firearms was the only way to quickly defend the nation. With a well run military that is already supplied with weapons that can defend its citizenry, what use is there for guns outside of it except to cause mischief and mayhem and possibly do some huntin'? The second amendment doesn't say anything about personal protection.

If you go with your definition, then the people's right to own guns also comes with the responsibility to serve in the armed forces when the nation deems it necessary to preserve itself. The draft was discontinued back in the 70s and the fully funded and supplied military both negate that necessity.

I'm not for or against gun ownership since, in general, legal gun owners aren't a problem and I don't see a problem with it. I own two myself

It would be nice to see this argument come to a legal conclusion. That would take a rewrite for clarification and an ratification by the states.

[djice929]

"The Militia is composed of free Citizens. There is therefore no Danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them." Samuel Adams. III S. Adams, Writings 251.

"When governments fear the people there is liberty. When the people fear the government there is tyranny."
— Thomas Jefferson

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
— Thomas Jefferson

"On every question of construction [of the Constitution], let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
— Thomas Jefferson

"No Free man shall ever be debarred the use of arms." Thomas Jefferson

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." Tench Coxe in "Remarks on the First Part of the Amendments to the Federal Constitution." Under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1. Coxe sent a copy of his essay to James Madison along with a letter of the same date. Madison wrote back and the quote follows.

"Accept my acknowledgments for your favor of the 18th. instant. The printed remarks inclosed in it are already I find in the Gazettes here [New York] ... The amendments ... will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen." James Madison in a response letter to Tench Coxe above supporting the interpretation of the Second Amendment as an individual right.

"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms;…" Samuel Adams, Debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87 (February 6, 1788).

"The people are not to be disarmed of their weapons. They are left in full possession of them." Zachariah Johnson, 3 Elliot, Debates at 646 (June 25, 1788).

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops…" Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787) in Pamphlets on the Constitution of the United States (P. Ford, 1888)

"To disarm the people [is] the best and most effectual way to enslave them …" George Mason, 3 Elliot, Debates at 380 (June 14, 1788).

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation,... in the several kingdoms of Europe,... the governments are afraid to trust the people with arms." James Madison, The Federalist Papers # 46.

"The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us." Patrick Henry, "Give Me Liberty Or Give Me Death" speech delivered on March 23, 1775.

"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." Patrick Henry, 3 Elliot, Debates at 45 (Virginia Convention, June 5, 1788).

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair." Alexander Hamilton, The Federalist Papers # 28.

The great object is that every man be armed ... Everyone who is able may have a gun." Patrick Henry, 3 Elliot, Debates at 386

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks." Thomas Jefferson, Encyclopedia of T. Jefferson, 318 (Foley, Ed., reissued 1967). (Letter to Peter Carr, his 15-year-old nephew, August 19, 1785)

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside … Horrid mischief would ensue were one half the world deprived of the use of them …" Thomas Paine, Thoughts on Defensive War, 1775. I Writings of Thomas Paine at 56 (1894).

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes....Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. Thomas Jefferson's "Commonplace Book," 1774-1776, quoting 18th century criminologist Cesare Beccaria in Chapter 40 of "On Crimes and Punishment", 1764. Chapter. Whole Book.

"Arms in the hands of citizens [may] be used at individual discretion… in private self-defense …" John Adams, A Defense of the Constitutions of the Government of the USA, 471 (1788)

"A militia, when properly formed, are in fact the people themselves …" Richard Henry Lee, writing in Letters from the Federal Farmer to the Republic, Letter XVIII, January 25, 1788

"First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always by kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided." Richard Henry Lee writing in Letters from the Federal Farmer to the Republic, Letter XVIII, January 25, 1788.

"I ask, Who are the militia? They consist now of the whole people, except a few public officers." George Mason, 3 Elliot, Debates at 425-426, June 16, 1788.

"An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, or real and natural strength, destroyed." George Mason, 3 Elliot, Debates at 425-426, June 16, 1788.

"That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided..." George Mason, Draft proposal, 3 Elliot, Debates at 659.

"That a well regulated militia, composed of the body of the people, trained to arms, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty: and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." Draft Amendment, Virginia Convention on June 16, 1788.

That the people have a right to keep and bear arms; that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in eases of necessity; and that at all times, the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house, without the consent of the owner, and in time of war, only by the civil magistrate, in such manner as the law directs." Letter on Rights from the state of Rhode Island and Providence Plantations as contained in the Journal of the Senate, June 9, 1790.

"What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty." Rep. Elbridge Gerry of Massachusetts, I Annals of Congress at 750 (August 17, 1789).

"Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution." Rep. Elbridge Gerry of Massachusetts, I Annals of Congress at 750 (August 17, 1789).

"A militia law, requiring all men, or with very few exceptions besides cases of conscience, to be provided with arms and ammunition... is always a wise institution, and, in the present circumstances of our country, indispensable." John Adams, Thoughts on Government, 1776.

"In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part in the use of arms for the purposes of war. Their civil occupations are not relinquished, except while they are actually in the field, and the inconvenience of withdrawing them from their accustomed labours, abridges the time required for military instruction. Militia therefore never amount to perfect soldiers, unless the public exigencies shall have kept them so long together as to absorb the civil, in the military character." William Rawle, A View of the Co