Yes, the Second Amendment Guarantees an Individual Right to Bear Arms

realclearpolitics.com ^ | March 20, 2007 | Pierre Atlas

[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...

[robertpaulsen]

"They can do what they wish to protect yours, within the limits of their powers, but they can't restrict my right."

What do you mean, they "can't restrict your right"? You can be thrown in jail. I'd call that somewhat of a restriction.

[robertpaulsen]

The short-barrelled shotguns used in WWI (the Winchester Model 1897 Trench Gun, pictured) had a 20" barrel, bayonet lug, barrel shroud, and sling swivels.

My guess is that Mr. Miller's sawed-off shotgun had none of the above military-type features and would have been virtually worthless in a combat situation. The National Firearms Act of 1934 took the position that if a shotgun had a barrel less than 18", it was probably going to be carried concealed by criminals.

[dcwusmc]

"My guess is that Mr. Miller's sawed-off shotgun had none of the above military-type features and would have been virtually worthless in a combat situation."

Your guess would be quite wrong then. It would not be my primary weapon, but my preferred backup in close quarters would be a double-barreled 12 ga. about 15-17" bbl length and maybe 24" overall. Besides the actual effect of the shot on an enemy, the psychological aspects are enormous.

"The National Firearms Act of 1934 took the position that if a shotgun had a barrel less than 18", it was probably going to be carried concealed by criminals."

The NFA took the position that they could TAX ownership and possession out of existence where they could not lawfully out and out prohibit. That is what NFA '34 was about. NO ONE would pay $200.00 to transfer a $5.00 short barreled shotgun, so it was defacto banning. Same with machine guns. Except that a FEW were registered, maybe 100,000 out of well over a million in private hands at the time, most of which were war souvenirs.

Oh, and your trench gun, nice as it is, would be too hard to swing around in really crowded quarters. That's why a "sawed-off" 12 ga. is so valuable.

[tpaine]

JeffAtlanta:
Care to explain away the Twitchell case --- just cited?


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


According to one of our foremost scholars of this issue:

"--- Twitchell is in fact an embarrassing joker. --"


THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT
Address:http://www.saf.org/LawReviews/Amar1.html


See section:

3. Early Interpretations: In search of Reasons

Post-ratification discussions of the Fourteenth Amendment cannot change its meaning, but can cast light backwards. In examining early interpretations, we must not simply count noses, but weigh reasons: do any of the early interpretations of the Amendment deepen our understanding of the evidence we have seen thus far?

Here too, silence alone will prove relatively unhelpful. Consider, for example, the 1869 case of Twitchell v. Pennsylvania, where the Supreme Court brusquely dismissed claims that the state had violated various provisions of the Fifth and Sixth Amendments. [265]

Though neither counsel nor the Court even mentioned the newly ratified Fourteenth Amendment, various critics of Justice Black have argued that the silence alone is devastating to the incorporation thesis.
Thus, Felix Frankfurter wrote in his parting memorandum in the Harvard Law Review:

[Twitchell indicates that no one] even thought of proposing that these amendments had been newly brought to bear on the States by the Fourteenth. Yet the Fourteenth's formulation and adoption had been a subject of great interest, especially to lawyers and judges, only months prior to the decision of these cases. The significance of this contemporaneous understanding need not be labored. [266]

Raoul Berger agreed: "Oversight will not account for the omission; the Amendment had been widely discussed; bench and bar are alert to every new and relevant enactment; they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights." [267]

Fairman too thought Twitchell quite impressive evidence:
[I]t did not occur to counsel for the petitioner to suggest that the Fourteenth Amendment, adopted less than a year before, had worked any change in the law applicable to the case.... Even though counsel for the petitioner had failed to invoke the Fourteenth Amendment, one supposes that the Court, had it been stirred by the least uncertainty, would have suggested the question and heard argument before disposing of the petition of one sentenced to death. [268]

But had Fairman, Frankfurter, or Berger paused to examine their supposed trump card before playing it with such flourish, they might have realized that Twitchell is in fact an embarrassing joker.

Counsel explicitly argued, among other things, that Pennsylvania had violated "due process of law," but invoked only the Fifth Amendment-a (literally) fatal mistake, for the Court simply rejected the claim with a quick citation to Barron. [269]
But again, what does this prove? If Twitchell's silence is evidence that the Fourteenth Amendment does not incorporate earlier amendments, it is equally strong evidence that the Fourteenth does not require state due process.
But in light of the plain words of the Fourteenth Amendment, this latter claim is absurd.

Twitchell's silence thus proves too much-and therefore nothing at all. Or more precisely, it proves that, contrary to Berger and Fairman's glib assumptions, only "oversight will account for the omission;" "bench and bar are not alert to every new and relevant enactment;" and the Court did not pay careful attention "before disposing of the petition of one sentenced to death." [270]

Frankfurter notwithstanding, Twitchell's embarrassing silence shows no "contemporaneous understanding" and has no "significance" to the incorporation debate.

[El Gato]

Did you see something that said Congress cannot prohibit the interstate commerce of machine guns? They've been doing that for over 70 years

No they have not, they've been taxing commerce in machine guns for over 70 years, and the Supreme Court has never ruled on the practice, Miller being the only National Firearms Act case to reach the Supreme Court.

Actually they've been prohibiting the commerce for 21 years, but only for newly made weapons.

[El Gato]

I believe I said the U.S. Constitution. And my question was "why"

Not in the part I quoted, but you did earlier. However even that's not quite true. There is such a clause, although it doesn't have exactly the same format, in Art I, Section 8. I leave it as an exercise for the reader to find it.

[El Gato]

Does the average soldier carry a handgun issued to him by the military as part of his weaponry? No.

Depends on your definition of "average soldier" many Vehicle crews are issued handguns, virtually all officers are, as are aircrew. But the court ruling in Miller did not say "average" it said "ordinary military equipment", which the M-9 certainly is, and the 1911 certainly was before it. Calvary and other mounted troops were routinely issued handguns. In fact that was where the term "horse pistol" comes from, the early examples were so large that the "holster" was on the saddle not on the trooper. So yes indeed handguns were, are and are likely to continue to be "ordinary military equipment".

[El Gato]

I don't know the designation of the current issue, in my time it was called a "grease gun".

There is no current issue pistol caliber machine gun, the M-4 carbine pretty much fills that role. alt hough other armies issue the P-90 Personal Defense Weapon, and it's likely the US military may someday issue it or something similar, but it will mostly replace the handguns of support troops, some vehicle crews and so forth, not the M-4 carbine.

[El Gato]

America is not afraid

But I bet a whole bunch of young American men with less than honorable intentions are. Or at least they should be afraid, very, very afraid.

If not of her, of her father, mother and brother, (plus "Uncle" Humblegunner, who is of the shoot and shovel and shutup about it, school of thought).

[ken21]

i appreciate that people around me own guns, altho' i do not.

my concern is how tv subtly erodes american values and the u.s. constitution.

women that i know that sit around watching tv all day, especially the women's shows, are anti-2nd amendment. in fact, hostile to the 2nd amendment.

[El Gato]

The SCOTUS has ruled and the federal and state governments have governed for over 200 years that the constitution does not apply bill of rights protections to the States.

Except when it does via the 14th amendment. They only use the "due process clause" to maintain the legal fiction that they are not over ruling earlier Courts, but of course they are.

[El Gato]

Barron v Baltimore 1833.

Which had absolutely nothing to do with the 2nd amendment. It was "takings" case. It covered the 5th amendment. And in regards to "takings" it has indeed been overturned, gotten around or however you want to phrase it.

[El Gato]

My own take is that SCOTUS will ultimately rule in favor of the 2A, which then would launch an amendment process that would grant some level of regulation to the states.

Such amendments would set off the same sort of firestorm as a judical ruling that nullified the Second Amendment.

I don't believe any such amendments can be so narrowly cast as to allow some truly reasonable regulation but not infringement. Heck we have a rule now that says "shall not be infringed" which all agree applies to Congress, but that hasn't stopped them from infringing up storm, especially from '68 onwards, but also in '34.

[Chuck Dent]

Such amendments would set off the same sort of firestorm as a judicial ruling that nullified the Second Amendment.

You are absolutely correct, of course. And that's the point; this debate belongs in the civic square, not the courts.

[robertpaulsen]

"but my preferred backup in close quarters would be a double-barreled 12 ga."

Use whatever you want. But if you want the second amendment to protect your right to use it, then, according to the Miller court, it must have "some reasonable relationship to the preservation or efficiency of a well regulated militia".

The argument is not, and has never been, about what type of weapon can be used in combat. The argument is what "arms" the second amendment protects. If you're going to reference Miller in your arguments, then you'll have to accept their criteria, whether you agree with it or not.

[robertpaulsen]

So, by your definition, the second amendment would also protect the individual right to keep and bear flame throwers, shoulder-fired anti-tank weapons, hand grenades, and any other "ordinary" equipment.

"So yes indeed handguns were, are and are likely to continue to be "ordinary military equipment".

"Alternatively, they argue that handguns are military weapons. Our reading of Miller convinces us that it does not support either of these theories. Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment."
-- Quillici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982)

[Dead Corpse]

Yes. Things could be a bit "exciting" while the Law Abiding take out the trash. Consider it a "market correction" that is long over due.

Some times a tree is much healthier after a bit of "pruning".

[dcwusmc]

You STILL have not read the decision, have you? Otherwise you would have to stop this inane babbling. Oh, and since sawed-off shotguns HAVE BEEN used in combat, I guess that does, in fact, make them militia weapons.

[Chuck Dent]

Some times a tree is much healthier after a bit of "pruning".

In this case, the hedge is wildly overgrown.

As a strong 2A supporter, I can honestly see where Rudy is (was?) coming from. Cities like NYC have dramatically different demographics (density, income disparity, ethnic enclaves) than the rest of the country. As such, they were/are really penned in by a federally provided constitutional right (ie one that supersedes both state & regional laws).

However, the proper way to have gone about addressing the 2A was the way provided from in the Constitution itself: the amendment process. By using the courts as a surrogate for rapid legislative action, gun regulators have both retarded the debate & allowed potentially unsustainable trends (ie gov't growth, high density cities, welfare corrupting families, etc) to continue.

When the 2A is snapped back into place, all hell is gonna break loose. Then we'll have a real national debate on whether to amend/keep the 2A, which is where it ultimately belongs: with the people.

[robertpaulsen]

"You STILL have not read the decision, have you?"

Why do you ask? Is the decision the Holy Grail of court decisions? Is it the final word? Is this the way it will now be forever and ever? Game over? Put it in the bank?

I'm saying -- you either put this decision in perspective or we're gonna lose, big time.

"Oh, and since sawed-off shotguns HAVE BEEN used in combat, I guess that does, in fact, make them militia weapons."

So have spears. Doesn't mean they have some reasonable relationship to the preservation or efficiency of a well regulated militia.

I told you before, the argument is not, and has never been, about what type of weapon can or has been used in combat. The argument is what "arms" the second amendment protects.