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post #1 of 51 Old 09-08-2006, 8:01 PM Thread Starter
 
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Important Court Case Regarding the Second Amendment

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.




Last edited by luvtolean; 09-19-2006 at 8:29 PM.
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post #2 of 51 Old 09-08-2006, 11:43 PM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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! )
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post #3 of 51 Old 09-08-2006, 11:50 PM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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.
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post #4 of 51 Old 09-09-2006, 1:12 AM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

Quote:
Originally Posted by luvtolean View Post
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.
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post #5 of 51 Old 09-09-2006, 1:22 AM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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Originally Posted by luvtolean View Post

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.
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post #6 of 51 Old 09-09-2006, 11:13 AM Thread Starter
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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Originally Posted by navydevildoc View Post
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.




Last edited by luvtolean; 09-09-2006 at 11:40 AM.
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post #7 of 51 Old 09-09-2006, 11:15 AM Thread Starter
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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Originally Posted by navydevildoc View Post
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.



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post #8 of 51 Old 09-09-2006, 11:29 AM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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Originally Posted by navydevildoc View Post
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.
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post #9 of 51 Old 09-09-2006, 12:11 PM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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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.
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post #10 of 51 Old 09-09-2006, 4:41 PM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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.
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post #11 of 51 Old 09-09-2006, 7:51 PM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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.
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post #12 of 51 Old 09-14-2006, 4:35 AM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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.
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post #13 of 51 Old 09-14-2006, 10:12 AM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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
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post #14 of 51 Old 09-14-2006, 12:45 PM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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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.
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post #15 of 51 Old 09-15-2006, 3:46 AM
 
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Re: Important Supreme Court Case Regarding the Second Amendment

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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.
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