Skip to comments.Yes, the Second Amendment Guarantees an Individual Right to Bear Arms
Posted on 03/20/2007 4:04:15 PM PDT by neverdem
On March 9, the Circuit Court of Appeals for the District of Columbia issued a groundbreaking ruling. It declared in a 2-1 decision that the Washington, D.C. ban on handgun possession in private homes, in effect since 1976, is unconstitutional. The court reached this conclusion after stating unequivocally that the Second Amendment's right to keep and bear arms applies to individuals and not just "the militia."
It is quite likely that this ruling will be appealed to Supreme Court, which hasn't offered an interpretation of the Second Amendment since 1939.
Appalled by the District Court ruling, the Washington Post editorialized that it will "give a new and dangerous meaning to the Second Amendment" that, if applied nationally, could imperil "every gun control law on the books."
The Post accused the National Rifle Association and the Bush administration's Justice Department of trying "to broadly reinterpret the Constitution so as to give individuals Second Amendment rights."
But actually, to argue that the Second Amendment does not apply to individuals is a reinterpretation of the Constitution and the original intent of the founders.
One of the major concerns of the anti-Federalists during the debate over the Constitution in 1787 was the fact that the new document lacked a Bill of Rights. In order to get the Constitution ratified, the framers promised to pass a Bill of Rights during the First Congress as amendments to the Constitution. The Second Amendment with its right to keep and bear arms became part of that package.
What was the original intent of the Second Amendment? Was the right to bear arms a collective right for militias, or an individual right for all citizens? The "Dissent of the Pennsylvania Minority," from the debates of 1787, is telling. This document speaks...
(Excerpt) Read more at realclearpolitics.com ...
As you said, most states protect an individual RKBA in their state constitution -- I believe six states have no RKBA protection, however.
Gun laws passed by Congress are done so under the power of the Commerce Clause, regulating (prohibiting) the interstate commerce of certain guns. I'm not aware that these laws have recently been challenged as violating the second amendment -- the last time was 70 years ago in US v Miller.
I would think that since the right to keep and bear arms is an individual right,it would also indicate that the phrase refers to weapons that could be used by an individual,rather than a crew served weapons system.
The District is not a state.
Some Judges decided to get cute, but the language will be nuanced as ever, as it suits the leftist zanies.
Nothing will change.
There, fixed it.
Harassment by whom? If the right to bear arms were affirmed and the second amendment held to apply to state and local governments as well, the police would be sured, or worse, for deprivation of civil rights, or worse, if they harassed law abiding citizens exercising that right.
Now if it is fellow citizens (or illegal aliens for that matter" that are harassing you for openly bearing arms, well there are lots of remedies for that. The final one being the use of those arms to protect your person.
There is a long history of regulating the bearing of concealed weapons, that AFAIK, goes back to colonial times and continued right through the period of ratification of the Second Amendment, along with its counterparts in state constitutions. Pretty much the same argument that was used in "Miller", that the military or the militia don't bear arms concealed, that is the practice of highwaymen and other ner do wells. Of course the rulings in state courts that upheld those laws, there being no such federal law even today, were in states whose RKBA provision differed from that in the second amendment in various ways. Some had "for the common defense" or words to that effect, which by the "only criminals need to carry concealed" reasoning combined with the "not common defense" argument allowed for such rulings. In fact the federal Supreme Court cited one such ruling in the "Miller" decision, even though there is no such "common defense" limitation in the Second Amendment.
But I agree that a prohibition, or the requirement for a permit, to bear arms concealed is an infringement of the individual right to bear arms.
The paragraph I posted was cut directly out of the DC decision. It's about as clear and cut-and-dried as I have ever seen. Too bad for the hoplophobes ;)
Well, you're smashing two things together.
Article IV, Section 2 of the U.S. Constitution says that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Not "rights".
The 14th amendment created a small "c" -- "citizen of the United States" -- and extended to those citizens certain privileges and immunities that came with national citizenship. Not "rights".
The 14th then said that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Correct any misstatements of fact, but don't argue principals or rights with it.
however where does the limit fall, with the extreme being tactical nuclear weapons or 155mm Howitzers?
A bullet is discriminate in that it's trajectory has an intended target that is relatively small. A nuclear weapon is indiscriminate and the target area is a billion times larger. The howitzer falls in-between. Take each of the three weapons and suppose an accident happened in a building (a person's home). If each weapon accidentally fired what is the likely damage to neighbors? The gun is almost nil. The howitzer has some potential to explode beyond the house. The nuclear weapon would take out a couple dozen city blocks.
I'm on page 2. I keep getting interrupted by every FReeper on this board asking me every day if I've read it.
You're forgeting the Supremecy Article VI of the Constitution. Article VI Clause 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The states do not have the authority to overrule Constitutional privisions.
Many early gun cases involved concealed carry, which was illegal.
I can cite a number of post-14th amendment cases where the court said that specifically.
And you are here to argue that power is superior to any right, individual or collective, including the right to keep and bear arms.
We got along quite well with no limits, at the federal level anyway, from 1792 to 1934, actually longer since there were no "anti cannon" ordances under the Constitution before ratification of the Bill of Rights or under the Articles of Confederation before them.
People did own cannon, and ships armed with them, at the time the second amendment was written, how else could they be effective when issued a Letter of Marque by Congress (as Congress was empowered to do in the orginal body of the Constitution)?
The Cannon the British were after at Concord were not owned by the colony or the British government. The Revolutionary War started over Cannon Confiscation, or more properly attempted cannon confiscation. They did manage to spike one or two, but they were rather too hotly pursued by the local militias to try to haul them off.
So definnetly 155 Howitzers, or larger ones for that matter, are included in the term "arms", as are 16" Naval Rifles, if you can find any outside of a floating museum.
While an individual can't bear such a weapon, they can certainly keep them. They certainly did at the time of the formulation, passage and ratification of the Second Amendment. A naval gun crew, or a wheeled artillery piece would have a crew of about 5, depending on the exact weapon, although certainly a single person could operate a cannon, albeit at a very low rate of fire. That's not counting the support crew, such as the "powder monkeys" aboard ship, or the crew that handled the horses which moved the land based cannon around.
The second amendment protects this right from federal infringement only. The states are free to infringe, guided only by their state constitution. In Illinois, cities are allowed to actually prohinit the ownership of guns within city limits. Chicago, Wilmette, Morton Grove -- all prohibit handguns.
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