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Opening Shots - The striking down of the D.C. gun ban may be the beginning of a larger battle.
National Review Online ^ | March 29, 2007 | Jennifer Rubin

Posted on 03/29/2007 12:48:37 PM PDT by neverdem







Opening Shots
The striking down of the D.C. gun ban may be the beginning of a larger battle.

By Jennifer Rubin

It’s not every day a federal circuit court rocks the political, legal, and academic worlds. But on March 9, the U.S. Court of Appeals for the District of Columbia Circuit did just that, ruling in the biggest gun-control case in nearly 70 years and perhaps placing a Supreme Court case smack in the middle of the 2008 presidential race. Senior Judge Laurence Silberman wrote for a 2-1 majority in Parker v. District of Columbia, “The Second Amendment protects an individual right to keep and bear arms.” The court rejected the District of Columbia’s argument that the Second Amendment does not protect individual gun ownership rights but merely protects states’ rights to form armed militias, and the court invalidated the District’s ban on handgun ownership and registration (except for guns registered prior to 1977), its prohibition on carrying pistols in the home without a license, and its requirement that all guns, including rifles and shotguns, be unloaded and either disassembled or bound by a trigger lock.

At issue is the meaning of the oddly constructed text: “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.” As Stuart Taylor explained in National Journal, since the Supreme Court last ruled on the Second Amendment in 1939, most courts and legal scholars have held: “The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.” The D.C. Circuit Court essentially replied: “Wrong.” Having found an individual right of gun ownership for the plaintiffs, the court then struck down the ban as an obliteration of that right.

The case will almost certainly be appealed to the en banc panel of the D.C. Circuit and then to the Supreme Court. Attorneys for the parties, as well as other legal experts, rank the likelihood that the Supreme Court will hear this case as high, given that the case would entail invalidation of a statute, a conflict between federal circuit courts, and a constitutional issue of wide ranging importance — all weighty considerations when it comes to granting certiorari. The Supreme Court could well be deciding the issue in the thick of the 2008 presidential season. Georgetown Law Professor Paul Rothstein suggests that that may be just the beginning, explaining: “I do not think any of them [the Supreme Court justices] would take the view that there is an absolute right to bear arms.” In the end he predicts: “The likelihood is that it will be held that there is an individual right that gives way to a strong, specific state interest expressed in a relatively narrowly tailored legislative provision, under some type of ‘intermediate scrutiny’ test.”

Con and Pro
Among partisans, the reaction was fast, furious, and predictable. Mayor Fenty declared: “I am strongly opposed to the Court’s decision. District residents deserve every protection afforded to them under District law.” The Brady Campaign to Prevent Handgun Violence issued a statement that the decision was “judicial activism at its worst” and, echoing the conservative theme of judicial restraint, decried that “two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.” The Washington Post and New York Times editorial pages blasted the decision.

On the other side, gun supporters celebrated. The Cato Institute trumpeted the work of its senior fellow Robert Levy, co-counsel for the plaintiffs, in obtaining a ruling that Second Amendment rights “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.” The American Civil Rights Union (ACRU) and the NRA, which both filed amicus briefs, applauded the decision. The Second Amendment Foundation declared: “This is a huge victory for firearm civil rights. It shreds the so-called ‘collective right theory’ of gun control proponents, and squarely puts the Second Amendment where it has always belonged, as a protection of the individual citizen’s right to have a firearm for personal defense.”

In addition to dueling press releases, arguments soon broke out about the case’s prospects. David Gossett, representing the Violence Policy Center seeking to uphold the D.C. gun ban in the case, stated, “I think en banc review is quite likely; given the makeup of this panel, and the fact that Judge Henderson—a well-known conservative judge—dissented, I expect the full D.C. Circuit will be interested in the case. I also think the en banc court is reasonably likely to reverse the panel. Judge Silberman’s opinion is fundamentally inconsistent with Miller, the Supreme Court’s precedent in this area.” On the other hand, Robert Levy predicted that the plaintiff’s “very compelling argument” would be sustained by the Supreme Court, but cautioned that even if the personal right to gun ownership were upheld, most gun restrictions would need to meet the very tough “strict scrutiny” standard to pass muster. Depending on the individual circumstances of specific cases, he believes there would be “close calls” on waiting-time statutes and restrictions on multiple sales of weapons. Peter Ferrara, general counsel of ACRU, while confident of the gun owners’ prospects should the case reach the Supreme Court, agrees that the Supreme Court is highly unlikely to find an “absolute right” of gun ownership and that it is unrealistic to think there will be “no regulation of guns.” Certainly this decision could open years of ongoing litigation.

Contenders Under the Gun
Aside from potentially opening a new chapter in constitutional jurisprudence, the case may reignite gun rights as a presidential political issue. Deemed to be a political loser for Democrats, John Kerry, aside from donning newly purchased hunting garb, tried his best to steer clear of the issue in 2004. Because of the Parker case, 2008 may be different. University of Virginia politics professor Larry Sabato observes: “The gun issue waxes and wanes like all the others, but it’s a tinderbox, ready to explode at any time.” He further notes: “The public may support gun control in theory, but the largest number of votes by far has been and continues to be on the antigun control side. Therefore, Democrats ought to be afraid of this one in terms of the general election”

Paul Helmke, former mayor of Fort Wayne and now president of the Brady Center Against Handgun Violence, suggests that “both sides have had it easy” in the gun debate, finding it politically safe to express general support for hunters and gun ownership but professing support for “reasonable restrictions” on gun ownership. Now candidates of both political parties may be forced, as they have been in the abortion arena, to take stands on specific issues.

Each of the candidates faces questions about his past and present views. Romney’s campaign, in response to an inquiry for this story, said that “the court correctly decided the D.C. gun case by upholding the right of individuals to keep and bear arms.” He now proudly sports an NRA membership. However, in 1994 he did support the NRA-opposed waiting period on gun sales and a ban on some types of assault weapons. Press accounts have since pointed out his statements in 1994 that this position was “not going to make me the hero of the NRA” and his comment in the gubernatorial debate in 2002: “We do have tough gun laws in Massachusetts; I support them. I won’t chip away at them; I believe they protect us and provide for our safety.” Spokesman Eric Fehrnstrom insisted in a written response that “the Governor’s views have not changed” on gun rights and explained “Governor Romney supported an extension of the state assault weapons ban in Massachusetts as part of comprehensive legislation that also loosened some of the state’s more onerous licensing restrictions.”

John McCain argues that he has been a staunch defender of Second Amendment rights. He voted against the Brady Bill in 1993 and the assault-weapons ban in 1994. He previously championed repeal of the now-invalidated D.C. gun ban. In the face of strong NRA opposition, however, McCain did sponsor legislation in 2001 and again in 2003 seeking to close the so-called “gun show loophole” requiring background checks at all gun shows where at least 75 guns were sold. (The issue of ad limitations in McCain-Feingold was further grounds for souring his relationship with the NRA.)

Rudy Giuliani faces the toughest challenge in reaching out to gun-rights advocates. As mayor of New York, he supported measures requiring trigger locks and banning guns within 1,000 feet of schools, and he sued two dozen major gun manufacturers and distributors in 2000. In the wake of the 1993 Long Island Rail Road shooting, he became one of the few prominent Republicans lobbying for a ban on many assault weapons. However, the Parker case may provide him with an opportunity to burnish his Second Amendment credentials. In a written response to an inquiry for this story he explained: “I believe the decision by United States Court of Appeals is correct. I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional. It is not a reasonable restriction. It clearly undercuts the Second Amendment, which protects the rights of law abiding individuals to keep and bear arms.” On March 22 on the Sean Hannity radio show, he again reiterated his agreement with Parker. He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated, and that gun regulations should be decided on “a state by state” basis.

Democratic Surprise
If none of the Republicans are perfect poster boys for the NRA, what about the Democrats? Charlie Cook notes that they “decided some time ago that if they wanted to win and hold a majority in Congress and the presidency, they were going to have to leave the gun issue alone. It was costing them too much support in the south and border south and among union members nationwide. All but a few Democrats in Congress agree with this strategy, which is why you can look at the Democratic issue agenda and find nothing about guns.” Their greatest fear may be escaping the primaries without inflicting damage on their hopes in November, as Sabato cautions: “If the liberals force Democratic candidates to the left on gun control next winter, then the eventual nominee may pay for it in the fall.” No less than Bill Clinton opined on The Charlie Rose Show after Al Gore’s loss that: “The NRA beat him in Arkansas. The NRA and Ralph Nader stand right behind the Supreme Court in their ability to claim that they put George Bush in the White House.... I think the NRA had enough votes in New Hampshire, in Arkansas, maybe in Tennessee and in Missouri to beat us. And they nearly whipped us in two or three other places.”

There is one Democrat who may be happy to talk about guns, should he manage to wrestle the nomination away from his three better known opponents: Bill Richardson. Last year in his reelection bid, Richardson obtained the NRA endorsement over his Republican challenger. Dwight Van Horn of the NRA said at the time: “He’s been a pretty solid guy on the gun issue.” In its press release the NRA was pleased to tout Richardson’s support for New Mexico’s law allowing residents to carry concealed handguns with a permit. Richardson in the past has proudly remarked that he personally has earned a concealed-carry permit himself. None of this is likely to endear him to the liberal base in the primaries, but it might prove a test of the NRA’s nonpartisanship should he face off in November against a Republican with a less stellar Second Amendment record.

Enjoying the Moment
For now, the NRA is clearly relishing this moment. Chris Cox, executive director of the NRA’s Institute for Legislative Action, is trying to focus public attention on the “human face” of the Parker decision, emphasizing that these D.C. residents were law-abiding citizens denied the right to self-defense in their own homes. He remarks that there is “no clearer indictment” of the theory that gun control will make cities safer than the fact that under the stringent gun ban, D.C. was the “murder capital” of the country in seven of the last nine years. To the chagrin of conservative lawyers, however, Cox indicates continued support of federal legislation to repeal the D.C. gun ban — legislation that would permanently secure home gun-ownership for D.C. residents, but render the Parker case effectively moot.

On a broader level, Second Amendment advocates are hoping to turn the tables in the court of public opinion. In recent years, gun-control advocates have changed the name of their organization (“Handgun Control, Inc.” was abandoned in 2001 in favor of “The Brady Campaign to Prevent Handgun Violence”) and focused on more limited items like waiting-period requirements and limits on multiple-gun sales. Cox argues that NRA should be seen as the “reasonable” group, supporting the right to self defense of law-abiding citizens, while the handgun advocates, despite their emphasis on incrementalist goals, nevertheless wholeheartedly supported the D.C. ban.

To some degree the NRA and its allies have already been winning the war outside the Beltway. Forty-eight states now have laws protecting individual rights to carry concealed weapons. Although each side offers its own polling data, even the January 2007 poll conducted for the Mayors Against Illegal Guns by the bipartisan team of Greenberg Quinlan Rosner Research and The Tarrance Group reveals a combined 58 percent of those polled favor either repealing some existing gun laws or simply enforcing current gun laws without passing new ones.

Conservative legal scholars see this case as potentially harkening a change in the way Americans view the courts and the Constitution. John Yoo of Boalt Law School doubts it will affect those with hardened views on each side but suggests that “the decision may sway moderates who are undecided about gun control, and remind them that the Founding Fathers understood the Bill of Rights to protect the individual right to bear arms.”

Peter Ferrara of the ACRU takes a more philosophical and historical view of the potential long-range implications of the case. He remarks that if Parker is upheld by the Supreme Court, it will “be a big shot in the arm for conservatives” and will demonstrate that “we have had an impact on the courts and on changing the judiciary.” He notes that the effort to achieve recognition of an individual right of gun ownership has been an undertaking of more than fifty years of research, scholarship, and support for conservative judges. He explains that what was once considered a “radical” position — recognition of an individual right to gun ownership — has now attracted support even from liberal scholars like Laurence Tribe and has been accepted by a prominent federal appeals court. Ferrara says that conservatives should remember that these jurisprudential efforts are “not short term fights.” As for the impact on 2008, he reminds conservatives that “this is no time to be discouraged” with at least two justices who could be potentially replaced by the next president.

In that respect, the Parker case may remind the wider conservative base exactly what is at stake in 2008.



TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: 2ndamendment; bang; banglist; rkba
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Here's Parker v. District of Columbia via HTML, courtesy of zeugma.
1 posted on 03/29/2007 12:48:39 PM PDT by neverdem
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To: zeugma
BANG!
2 posted on 03/29/2007 12:49:24 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem
Attorneys for the parties, as well as other legal experts, rank the likelihood that the Supreme Court will hear this case as high, given that the case would entail invalidation of a statute, a conflict between federal circuit courts, and a constitutional issue of wide ranging importance — all weighty considerations when it comes to granting certiorari.

The same three conditions, and others, prevailed in the Nordyke v. King petition for writ of certiorari, and it was still refused by the US Supreme Court.

3 posted on 03/29/2007 12:54:26 PM PDT by mvpel (Michael Pelletier)
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To: neverdem; pissant; airborne; Calpernia; AuntB; CharlesWayneCT; Joe Brower
“I believe the decision by United States Court of Appeals is correct. I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional. It is not a reasonable restriction. It clearly undercuts the Second Amendment, which protects the rights of law abiding individuals to keep and bear arms.” Do my eyes deceive me? Did Rudy just flip-flop/pander?

On March 22 on the Sean Hannity radio show, he again reiterated his agreement with Parker. He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated, and that gun regulations should be decided on “a state by state” basis.

Okay then.

This:

He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated

Is contradicted by THIS:

and that gun regulations should be decided on “a state by state” basis.

How utterly transparent.

4 posted on 03/29/2007 12:56:26 PM PDT by Ultra Sonic 007 (Vote for Duncan Hunter in 2008. Audio, Video, and Quotes in my profile.)
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To: Ultra Sonic 007
Ugh. Let me fix that.

“I believe the decision by United States Court of Appeals is correct. I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional. It is not a reasonable restriction. It clearly undercuts the Second Amendment, which protects the rights of law abiding individuals to keep and bear arms.”

Do my eyes deceive me? Did Rudy just flip-flop/pander?

On March 22 on the Sean Hannity radio show, he again reiterated his agreement with Parker. He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated, and that gun regulations should be decided on “a state by state” basis.

Okay then.

This:

He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated

Is contradicted by THIS:

and that gun regulations should be decided on “a state by state” basis.

How utterly transparent.

5 posted on 03/29/2007 12:58:11 PM PDT by Ultra Sonic 007 (Vote for Duncan Hunter in 2008. Audio, Video, and Quotes in my profile.)
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To: Duncan Hunter Ambassador

Has Mr. Hunter issued a statement on this ruling yet?


6 posted on 03/29/2007 12:59:38 PM PDT by Ultra Sonic 007 (Vote for Duncan Hunter in 2008. Audio, Video, and Quotes in my profile.)
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To: neverdem
"If none of the Republicans are perfect poster boys for the NRA, what about the Democrats?

They forget to mention that Hunter has a 100% rating from the NRA. But, no one in the media wants to give him any acknowledgment. Its a shame.

7 posted on 03/29/2007 1:01:47 PM PDT by chaos_5
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To: neverdem
As Stuart Taylor explained in National Journal, since the Supreme Court last ruled on the Second Amendment in 1939, most courts and legal scholars have held: “The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.”

First of all, in the 1939 Miller case, the defendant's lawyer didn't even show up. The Feds won by default.

Secondly, the vast majority of Law Reviews on the Second Amendment hold it to be an individual right, sometimes very reluctantly. The only ones that don't were funded by anti-gun benefactors. (If any global warming study funded by "Big Oil" is automatically invalid, than any 2nd Amendment study by "Big Disarmament" should likewise be deemed automatically invalid).

Comprehensive Bibliography Of The Second Amendment In Law Reviews

Thirdly, even Alan Dershowitz reluctantly admits the 2nd Amendment applies to individuals.

Analyzing The 2nd Amendment

8 posted on 03/29/2007 1:02:46 PM PDT by E. Pluribus Unum (Islam is a religion of peace, and Muslims reserve the right to kill anyone who says otherwise.)
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To: neverdem
The striking down of the D.C. gun ban may be the beginning of a larger battle.

LOL, Lefties are always late to the war...

In 1986, there were only 9 states that had "shall issue" laws for concealed-carry permits, and 15 states utterly forbade the practice... the NRA has been putting up a good fight since the 1980's.
In 2006, there were 39 states that were "shall issue" or unrestricted, and only 2 that do not issue concealed carry permits under any circumstances.

(EXPLANATION: "May Issue" laws said that if you apply for a permit, the local authority MIGHT allow you to get the permit... but he was not required to give you one. He also would not have to give any valid reason for the refusal. "Shall issue" laws mean that, unless you have a previous violent felony or a current psychological disorder, the locals MUST issue you the permit. "Unrestricted" means that you can carry concealed without a permit.)


9 posted on 03/29/2007 1:07:46 PM PDT by Teacher317 (Are you familiar with the writings of Shan Yu?)
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To: Teacher317

Strange that the US saw a decrease in violent crime rates starting in the late 1980's. Purely a coincidence, I'm sure.


10 posted on 03/29/2007 1:08:25 PM PDT by Teacher317 (Are you familiar with the writings of Shan Yu?)
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To: neverdem
“The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments"

OR

it was to guarantee each citizen the right to have arms to fight off State encroachments? It depends on how you read "free state" -- is that a state that is free, or is it a state of free people?

The C. says "the right of the people to keep and bear arms, shall not be infringed", not "the right of the States to keep a well armed militia."

Clearly, we individuals are expected to bear arms, and I happily comply.
11 posted on 03/29/2007 1:08:30 PM PDT by Born to Conserve
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To: neverdem
" No less than Bill Clinton opined on The Charlie Rose Show after Al Gore’s loss that: “The NRA beat him in Arkansas. The NRA and Ralph Nader stand right behind the Supreme Court in their ability to claim that they put George Bush in the White House.... I think the NRA had enough votes in New Hampshire, in Arkansas, maybe in Tennessee and in Missouri to beat us. And they nearly whipped us in two or three other places.”"

The Rooty-Tooters better take note of what would happen to him in the Red states.
12 posted on 03/29/2007 1:18:25 PM PDT by Beagle8U (FreeRepublic -- One stop shopping ....... Its the Conservative Super Walmart for news .)
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To: neverdem

My worst nightmare? The Supremes deciding on RKBA like they did in RvW.


13 posted on 03/29/2007 1:21:19 PM PDT by DBrow
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To: E. Pluribus Unum

Thanks for the links.


14 posted on 03/29/2007 1:22:16 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem
Georgetown Law Professor Paul Rothstein suggests that that may be just the beginning, explaining: “I do not think any of them [the Supreme Court justices] would take the view that there is an absolute right to bear arms.” In the end he predicts: “The likelihood is that it will be held that there is an individual right that gives way to a strong, specific state interest expressed in a relatively narrowly tailored legislative provision, under some type of ‘intermediate scrutiny’ test.”

What the Hell does That mean?

15 posted on 03/29/2007 1:24:03 PM PDT by Petruchio (Single, Available, Easy)
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To: Petruchio
What the Hell does That mean?

Weasel words to infringe?

16 posted on 03/29/2007 1:32:19 PM PDT by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem

There's a couple things wrong in this article.

First, everyone who is a RKBA supporter should understand that the NRA was, at best, a bystander in this court case, and at worst, no help and only a hinder to winning this case. This case was won because, as Don Kates was fond of telling me in 1994, the lawyers finally found the right plaintiffs -- people who were law-abiding, and had not been arrested for violation of one or more laws, one of which was a gun ban. Instead, these were people who were being denied their civil liberties.

Second, the blither-blather than somehow, the SCOTUS ruling in Miller was the "last word" on the individual vs. state's rights interpretation of the Second Amendment is false. People should go read Miller, and in so doing, they will find out that the Second Amendment was largely a tangent to the central issue of "was Mr. Miller in violation of the 1934 act when he possessed a sawed-off shotgun?" The court then digressed into whether a sawed-down shotgun was a "militia weapon" and therefore, was there an individual right to own such a weapon?

The SCOTUS has never ruled dead-square-center on the Second Amendment, and it has never been "incorporated" via the Fourteenth into state-level rights for individuals, the way the First, Fourth, etc have been.


17 posted on 03/29/2007 1:35:20 PM PDT by NVDave
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To: E. Pluribus Unum
"First of all, in the 1939 Miller case, the defendant's lawyer didn't even show up. The Feds won by default."

The Miller court made no ruling. The case was remanded to the lower court. No one "won" or "lost".

"Secondly, the vast majority of Law Reviews on the Second Amendment hold it to be an individual right"

Which means diddley-squat. The vast majority of lower federal courts and lower federal court decisions hold it to be a collective right. If the U.S. Supreme Court takes this case, what will they consider -- law reviews or lower federal court decisions?

"Thirdly, even Alan Dershowitz reluctantly admits the 2nd Amendment applies to individuals.

He said, "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."

I would not conclude, from that statement, that Alan Dershowitz admits the 2nd Amendment applies to individuals. And even if he did, who is Alan Dershowitz? If he said it was a collective right would that mean anything to you?

18 posted on 03/29/2007 1:38:46 PM PDT by robertpaulsen
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To: neverdem
In a written response to an inquiry for this story [Giuliani] explained: “I believe the decision by United States Court of Appeals is correct. I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional. It is not a reasonable restriction. It clearly undercuts the Second Amendment, which protects the rights of law abiding individuals to keep and bear arms.”

I KNEW it. I predicted here on FR the day this decision came out that Rudy would use it as an opportunity to recast his position on the Second Amendment, and distance himself from the city-centric views he has previously espoused on this issue.

19 posted on 03/29/2007 1:41:15 PM PDT by GovernmentShrinker
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To: Born to Conserve
"The C. says "the right of the people to keep and bear arms, shall not be infringed"

When that was written, who were "the people"?

20 posted on 03/29/2007 1:41:54 PM PDT by robertpaulsen
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To: neverdem

I love this...


21 posted on 03/29/2007 1:43:56 PM PDT by Edgerunner (I am here to learn...)
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To: neverdem
Here's Parker v. District of Columbia via HTML, courtesy of zeugma.

Thanks for the ping and plug! 

22 posted on 03/29/2007 1:48:25 PM PDT by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
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To: Born to Conserve

Until the 14th amendment, it could easily be said that the 2nd amendment only proscribed the federal government, NOT the state governments, and therefore states could do whatever they wanted with gun laws.

The 14th amendment gave the "rights" of people of the united states to all people regardless of the states they lived in, but it wasn't originally interpreted to mean that the restrictions on the actions of the federal government applied to the states, only that whatever rights were conferred upon a person by the basis of being a citizen of the united states could not be infringed by a state.

Later, the 14th amendment was interpreted as appending the U.S. constitution to the constitutions of each state -- at that point, if the federal government was not allowed to infringe upon gun ownership, neither should the state be allowed to do so.


I do not think the founders intended to dictate to the states that citizens must be allowed to own guns. I think they only intended to prevent the federal government from taking away anybody's guns. The reason was that states didn't want to give up power to the federal government to defend themselves, but the amendment clearly specifies that individuals cannot be restricted from gun ownership by the federal government.

So I could buy the argument that each state has a right to restrict gun ownership, for their own citizens, in keeping with their own state constitutions.

The federal government could require states to honor the rules of other states for those other state's citizens (like carry rules).

But the federal government should NEVER have been allowed to enact an assault weapons ban. The 2nd amendment CLEARLY prohibits the federal government from infringing in any way with the rights of the people. A STATE could ban assault weapons under that interpretation, but not the federal government.

Rudy Giuliani supported the federal assault weapons ban, which directly contradicts his statement now that it is a "state" thing.

And he said that he supports this appeals court ruling, which directly contradicts his claim that it is a state thing, because this appeals court said the district had no right to make a law for it's own people.


23 posted on 03/29/2007 1:48:26 PM PDT by CharlesWayneCT
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To: GovernmentShrinker; TitansAFC; Kevmo
I KNEW it. I predicted here on FR the day this decision came out that Rudy would use it as an opportunity to recast his position on the Second Amendment, and distance himself from the city-centric views he has previously espoused on this issue.

I know. Disgusting, ain't it? Does he take us for fools?

24 posted on 03/29/2007 1:49:02 PM PDT by Ultra Sonic 007 (Vote for Duncan Hunter in 2008. Audio, Video, and Quotes in my profile.)
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To: Teacher317

So has DC imploded in violence and bloodshed since the gun ban was struck down? The way liberals talk, you'd think there wouldn't be any living human beings left there by now.


25 posted on 03/29/2007 1:50:28 PM PDT by ukie55
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To: Petruchio
What the Hell does That mean?

It is a little vague - I interpret it as referring to a decision in favor of individual rights in the matter that still leaves a loophole for whatever legislation Congress cares to propose. Having one's cake and eating it too, in essence.

The real difficulty is what happens to the considerable body of existing law should its underlying premise be stricken down. For example, does a gun store operator still have to keep his paperwork in this case? What if he doesn't? And who will decide?

Even under the best of circumstances, a ringing endorsement of the Second as a fundamental individual right, the fight will not be over. We're in this for the long run.

26 posted on 03/29/2007 1:58:41 PM PDT by Billthedrill
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To: DBrow
My worst nightmare? The Supremes deciding on RKBA like they did in RvW.

Yeah. I'm not so sure that I want the Supreme Court going there right now. I think the article is right: best case scenario, we get some sort of watered-down individual right, and I don't really think that's in our best interest right now.

We've been making a lot of progress in state legislatures over the past couple decades and I think I'd just rather see that trend continue for the time being.

27 posted on 03/29/2007 2:05:14 PM PDT by Publius Valerius
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To: harpseal; TexasCowboy; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ...
The "beginning of a larger battle"? Let's hope so. It's already long overdue. And for those of us who still remember what it means to be an American, it's a battle that we intend to win.

Click the Gadsden flag for pro-gun resources!

28 posted on 03/29/2007 2:05:19 PM PDT by Joe Brower (Sheep have two speeds: "graze" and "stampede".)
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To: chaos_5
If none of the Republicans are perfect poster boys for the NRA, what about the Democrats?

Fred Thompson isn't mentioned - even though not a candidate YET, he's looking increasingly likely to be one, and he's very strongly pro-gun. That'd change the calculus quite a bit.

29 posted on 03/29/2007 2:05:25 PM PDT by Ancesthntr
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To: Ancesthntr
I find the ground swell of support for Fred Thompson to be surprising. He's not my choice for the Primary, but I hold no reservations about pulling the handle for him in a General.

If he is going to run, I hope he throws in soon, because if he doesn't I fear all he will do is take away valuable time and attention from the current pool.
30 posted on 03/29/2007 2:16:21 PM PDT by chaos_5
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To: robertpaulsen
Which means diddley-squat. The vast majority of lower federal courts and lower federal court decisions hold it to be a collective right. If the U.S. Supreme Court takes this case, what will they consider -- law reviews or lower federal court decisions?

Don't be so sure. Scholarship on an issue is often important in Supreme Court decisions. You're right about Dershowitz; he's not a constitutional scholar. But when people like Tribe or the folks at Boalt Hall speak on a constitutional issue--as this article mentions--that is the type of stuff that can make the Supreme Court listen.

Don't pooh-pooh legal scholarship. Books and law review articles can absolutely change the way the law is viewed. Bork's Antitrust Paradox comes immediately to mind, along with John Hart Ely's Democracy and Distrust.

31 posted on 03/29/2007 2:16:26 PM PDT by Publius Valerius
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To: Ike

That's what I always laughed at about the gun grabbers' idea that guns somehow cause crime. All you need to do is go on one hunting trip to see prodigious numbers of heavily armed people, mostly grubby men, occupying every motel room and camping space in and around small towns in places like Colorado, Wisconsin, and Pennsylvania. By the gun grabbers' "logic" each of those little towns should be a bullet-pocked wasteland, occupied only by the dead and mortally wounded. Strangely, that's not the case now and never has been.


32 posted on 03/29/2007 2:17:08 PM PDT by libstripper (AS)
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To: GovernmentShrinker

Rudy had to kiss the NRA ring if he wanted the nomination; now he's done it.


33 posted on 03/29/2007 2:18:14 PM PDT by libstripper (AS)
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To: neverdem

You can't form an ad-hoc militia of unarmed people.


34 posted on 03/29/2007 2:19:17 PM PDT by Bernard (The price used to be 30 pieces of silver; now it's a spinach subsidy.)
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To: Publius Valerius
Don't forget all the work the justice dept. under John Ashcroft did in defining the 2nd as an individual right at the start of President Bush's first term.

I'm sure the SC will look at all that research as well.
35 posted on 03/29/2007 2:22:11 PM PDT by Beagle8U (FreeRepublic -- One stop shopping ....... Its the Conservative Super Walmart for news .)
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To: libstripper

Or Switzerland.

A gun in practically every home, and guess what? Crime is about non-existent.


36 posted on 03/29/2007 2:24:56 PM PDT by Ultra Sonic 007 (Vote for Duncan Hunter in 2008. Audio, Video, and Quotes in my profile.)
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To: Joe Brower
"And for those of us who still remember what it means to be an American, it's a battle that we intend to win.

Roget that ~ Bravo Zulu!!

37 posted on 03/29/2007 2:27:00 PM PDT by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: robertpaulsen
The Miller court made no ruling. The case was remanded to the lower court. No one "won" or "lost".

Au Contraire!

http://www.jpfo.org/miller.htm

Only once in the Twentieth Century has the U.S. Supreme Court interpreted any part of the Second Amendment. That case was U.S. v. Miller, which the Court heard and decided in 1939.1 The Court held that the National FirearmsAct – under which machineguns, shotguns with barrels under 18" in length, short-barreled rifles, and firearms silencers had to be registered and a $200/item tax paid was constitutional. Few who discuss this decision have actually read it, and so know that the Court heard only one side of the matter, the Government's. Fewer still have read the entire record, and so know that the Court rejected most of the Government's claims about the Second Amendment

United States vs. Miller (1938)

If the U.S. Supreme Court takes this case, what will they consider -- law reviews or lower federal court decisions?

The Constitution.

The USSC makes precedent for the lower courts, not vice-versa.

I predict that DC will not appeal this case to the USSC precisely because an affirmative ruling would invalidate ALL gun control laws throughout the country.

Sarah Brady and Company can't afford that.

38 posted on 03/29/2007 2:28:18 PM PDT by E. Pluribus Unum (Islam is a religion of peace, and Muslims reserve the right to kill anyone who says otherwise.)
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To: NVDave
The SCOTUS has never ruled dead-square-center on the Second Amendment, and it has never been "incorporated" via the Fourteenth into state-level rights for individuals, the way the First, Fourth, etc have been.

Yes, but SCOTUS heard Miller on its merits, rather than stating that Miller the man had no standing. As such, it is an individual right. Further, all of the discussion regarding the particulars of the shotgun in the case had to do with the issue of which weapons are protected for individuals to own. The Supremes (wrongly, IMHO) said that it was basically weapons suitable for increasing the efficiency/effectiveness of the militia (which they identified as all citizens and residents from 17-45). Since there was no "judicial notice" that a sawed-off shotgun was suitable (i.e. since Miller had no attorney representing him), they ruled against Miller and his shotgun.

That, however, raises a really interesting point - SCOTUS effectively said that you've got to have a military weapon or something that functions in an essentially identical manner - and banning such weapons is unconstitutional. So what does that say for Title 18, Section 922(o) (the 1986 ban on additions to the NFA list of civilian held full autos)? It says that it is unconstitutional. Who could deny the utility of an M-16, an M-4 or even an M14 (since it never officially left service, and is now being brought back for the DM's for longer-range engagements)? Heck, I think that you could make a powerful argument that any hand-held firearm ever used by the military was a "militia" weapon, thereby protecting Tommyguns, revolving cylinder shotguns, etc.

I'd like to see Parker get to SCOTUS, and for it to affirm the decision - at least insofar as the 2nd being protection for an individual right...because if it does this, then 922(o) is not long for this world, and we'll be able to buy new full autos for reasonable prices.

39 posted on 03/29/2007 2:28:38 PM PDT by Ancesthntr
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To: Ultra Sonic 007
Or Switzerland.

A gun in practically every home, and guess what? Crime is about non-existent.

Keep in mind that the gun that the Swiss militia of the present day is armed with is a full auto weapon - and that they're required to keep ammo with the weapon. If guns caused crime, there'd be no one in Switzerland.

40 posted on 03/29/2007 2:32:14 PM PDT by Ancesthntr
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To: DBrow
My worst nightmare? The Supremes deciding on RKBA like they did in RvW.
If they did that, everyone would be REQUIRED to own a gun!
41 posted on 03/29/2007 2:32:46 PM PDT by wjcsux (There is no end to the good, that do-gooders will do, with other people's money.)
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To: E. Pluribus Unum

"I predict that DC will not appeal this case to the USSC precisely because an affirmative ruling would invalidate ALL gun control laws throughout the country."

You nailed it : )


42 posted on 03/29/2007 2:33:49 PM PDT by stephenjohnbanker (Misery loves miserable company.......ask any liberal. Hunter in 08!)
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To: Teacher317
Now if you could also post a map with violent crime rates so that we could compare it with the 2006 map.
43 posted on 03/29/2007 2:34:45 PM PDT by fireforeffect (A kind word and a 2x4, gets you more than just a kind word.)
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To: wjcsux
I know you're joking, but consider if they put out "guidelines" (wrote new law) that made the RKBA process uniform across the states, with lots of reasonable common-sense gun safety rules to follow like training, storage, locks, and areas where civilians could not carry, plus perhaps registration and liability insurance?

I was thinking more of the process they followed in RvW rather than the details, with umbras and emanations and Vodun dolls and chanting.
44 posted on 03/29/2007 2:41:40 PM PDT by DBrow
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To: neverdem
The battle has been underway for quite some time....

http://www.youtube.com/watch?v=K73pWPAYg0g

Best regards,

45 posted on 03/29/2007 2:44:06 PM PDT by Copernicus (A Constitutional Republic revolves around Sovereign Citizens, not citizens around government.)
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To: chaos_5
He's not my choice for the Primary, but I hold no reservations about pulling the handle for him in a General.

If he is going to run, I hope he throws in soon,...

He IS my choice, at least vs. the 3 guys who've declared so far. McStain hates free speech and guns, and may have mental stability problems; Rudy is anti-gun and a social liberal, and Romney is anti-gun and too much of an empty suit to beat the likes of Hitlery (though he'd make a great Secretary of the Treasury with his business background). I might choose Hunter over Thompson in a primary, but part of my consideration in the primary is "can the guy win in November?" Thompson can, and I can't say that about Hunter. Ron Paul would get about 10 million votes and go down in flames. Who else is there?

46 posted on 03/29/2007 2:50:03 PM PDT by Ancesthntr
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To: Copernicus
I almost forgot this:

From Mary Carpenter's letter to the NC General Assembly:

All the gun laws you can imagine cannot change the heart of a killer and you know it.

Until man's heart is changed, we will be like sheep led to the slaughter without our weapons of defense.

May you stand before God and man as my two precious grandchildren's killer if you pass any more gun legislation that will make me a felon should I own a handgun or any other gun for that matter.

Best regards,

47 posted on 03/29/2007 2:53:06 PM PDT by Copernicus (A Constitutional Republic revolves around Sovereign Citizens, not citizens around government.)
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To: robertpaulsen
When that was written, who were "the people"?

The people who wrote "WE the People... establish this Constitution?"

-PJ

48 posted on 03/29/2007 2:56:48 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: neverdem
The striking down of the D.C. gun ban may be the beginning of a larger battle.

Beginning???  Let me guess -- Jennifer Rubin just awoke from a long, long, long sleep.

49 posted on 03/29/2007 2:57:55 PM PDT by Celtman (It's never right to do wrong to do right.)
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To: neverdem

bookmark


50 posted on 03/29/2007 3:09:09 PM PDT by traviskicks (http://www.neoperspectives.com/Ron_Paul_2008.htm)
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