Skip to comments.Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)
Posted on 07/06/2007 4:34:01 PM PDT by fight_truth_decay
This time, the Supreme Court may have to decide what the Second Amendment means. But how much will really change?
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. U.S. Constitution, Amendment II
Earlier this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the District of Columbias stringent gun-control regulations, ruling squarely that the Second Amendment protects an individuals right to bear arms.
In the cultural and legal battle over gun control, the decision was the proverbial shot heard round the world.
The rulingin Parker v. District of Columbiamarked the first time a gun law has been found unconstitutional based on the Second Amendment, and it set up a direct conflict among the circuits. Nine federal appeals courts around the nation have adopted the view that the amendment guarantees only the collective right of organized state militias to bear arms, not an individuals right. (A 5th Circuit panel found that individuals have gun rights but upheld the regulation in question, so both sides claim that ruling as a victory.)
In May, when the full D.C. Circuit Court refused to grant a rehearing en banc, the stage seemed set for a showdown in the Supreme Court, which has thus far managed to dodge the question of whether the Second Amendment guarantees an individuals right to bear arms.
According to HLS Professor Mark Tushnet, author of Out of Range: Why the Constitution Cant End the Battle Over Guns (Oxford University Press, 2007), earlier petitions were cluttered by issues that allowed the Court to decline review or avoid the Second Amendment question. But Parker is more straightforward, Tushnet says, and the Court will have a tougher time avoiding the issue.
If Parker is the long-awaited clean case, one reason may be that lawyers for the National Rifle Associationwho helped steer the legal strategy of the plaintiffs and backed them financiallyhave learned from earlier defeats, and crafted the case to maximize the chances of Supreme Court review. For one thing, it is a civil case, not a criminal one, and the six plaintiffs, in the words of NRA President Sandra Froman 74, are ordinary people whose lives are impacted by not having the right to protect themselves. They include a woman who lives in a high-crime area and has been threatened by drug dealers, a gay man assaulted because of his sexual orientation and a special police officer for the Federal Judicial Center.
In addition, the laws challenged in Parker are among the most stringent in the nation: Handguns cannot be registered in the district; those registered before a 1976 ban cannot be carried from one room to another without a license; and any firearm in a home must be kept unloaded and either locked or disassembled.
Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesnt involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendmenta question that clouded an earlier case involving one citys complete ban on handgun possession. He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one.
Pro-gun activists like Froman are confident that the Court will hear an appeal by the district in Parker, and they say that they couldnt have gotten this far without help from an unlikely quarter: liberal law professors. In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe 66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise American Constitutional Law, Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.
My conclusion came as something of a surprise to me, and an unwelcome surprise, Tribe said in a recent New York Times interview. I have always supported as a matter of policy very comprehensive gun control.
Froman says the fact that Tribe and others reversed their interpretation in recent years has had enormous influence. Indeed, the majority opinion in Parker, written by Judge Laurence H. Silberman 61, referred specifically to Tribes revised conclusion.
The 27 words of the Second Amendment may be the most hotly contested in the Constitution. Gun-control advocates and opponents read its tortured syntax entirely differently. Each side resorts to what Tushnet calls a simplified version of constitutional analysis to support its viewpoint, looking solely at the wording of the amendment and what the language meant in 1791 rather than at whether society has changed in the meantime and what judicial precedents offer guidance. In virtually no other area in constitutional law is analysis done that way, he says, although hes not sure why.
Theres very little guidance on what the actual meaning of the Second Amendment is, says Froman, a Tucson lawyer who was interviewed by the Bulletin when she returned to HLS in early April to speak on a panel. The courts have talked a lot about the Second Amendment but have always been nibbling around the periphery. Theres never really been Lets explain and elaborate on what it means.
For Anthony A. Williams 87, who served as mayor of the District of Columbia from 1999 until earlier this year and vigorously enforced the districts gun laws during his tenure, the meaning of the amendment is unambiguous, no matter what interpretive theory is used. Lets take [Justice Antonin] Scalias approach, he says. I think the framers intent was to see to it that [through] militias, states as sovereign entities had a right to arm themselves. To me, its not about individualsits about groups.
But Froman firmly reaches the opposite conclusion: A lot of people say that the prefatory clause of the Second Amendmentthe words A well regulated militia limits the active clause pertaining to bearing arms. They want to say that means you can only exercise the right to keep and bear arms as part of a militia, meaning as part of the National Guard, forgetting that the National Guard didnt exist then.
Remember, Froman adds, the Second Amendment guarantees a rightit does not confer a right. Its God-given. Its natural. The right of self-survival is a basic instinct of any organism. The Constitution acknowledges that.
Tushnet believes that if the Court grants certiorari, it will ultimately overturn the decision of the D.C. panel. My gut feeling is that there are not five votes to say the individual-rights position is correct, he says. [Justice Anthony] Kennedy comes from a segment of the Republican Party that is not rabidly pro-gun rights and indeed probably is sympathetic to hunters but not terribly sympathetic to handgun owners. Then the standard liberals will probably say collective rights.
But Tribe is less confident of that prediction. Should the case reach the Supreme Court, he told The New York Times, theres a really quite decent chance that it will be affirmed.
If that happens, Tushnet says, it is unlikely to end all gun regulation, because the Court would probably tailor its decision narrowly to reach consensus. The three-judge panel in Parker struck down only D.C.s tight laws. Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible, he says.
Tushnet says the gun-control debate is an intractable one in which neither side will move, and a constitutional answer from the Supreme Court will be something of a nonstarter. Like the arguments over abortion and stem-cell research, he says, the argument over guns is in truth another battle in the culture wars and cannot be solved by constitutional analysis because neither side can be persuaded.
No gun-control strategy with any chance of surviving the political process would have a significant effect on overall gun violence or crime, Tushnet believes. To say so publicly would be the boldest and most honest stand that a major politician or candidate could take, he adds.
The tragic shootings on the campus of Virginia Tech seem to have changed no ones position: People responded to it in exactly the way you would expect, Tushnet says. Supporters of gun control sought stricter laws and better enforcement, and the NRA advocated that teachers and others be armed to protect themselves.
Activists on both sides bear out that observation. Williams believes that the districts gun laws were having a demonstrable effect on gun-related violence. When I started as mayor, we had well over 200 homicides a year, he says. We brought that down to below 160, so we made serious inroads in reducing violent crime; but still, in many neighborhoods, the situation is horrific.
Says Froman: Statistically, the parts of the country with the greatest number of firearms have the lowest rates of violent crime with guns. Its easy to understand why. Lets say there were 30 people in this room, and this was a state that allowed people to carry concealed weapons for self-defense, and a criminal walked in. At least half the people in the room would draw down on the criminal. That would be the end of it.
Froman had nothing to do with guns until, some 25 years ago, someone tried to break into her Los Angeles home. I was terrified, she says. It was a real epiphany for me, for someone who had never been a victim of crime, who never thought I needed to protect myself. The next day, she walked into a gun shop to purchase a weapon. She has been a staunch gun advocate ever since.
Does Froman ever worry about repercussions, given that shes at the center of such a heated issue? I live in a very rural area, at the end of a long driveway, she says. People ask me, Dont you get scared? I say, Are you kidding? I have a clear shot all the way to the road.'
''A well-regulated militia, being necessary to the security of a free state, the right of the militia to keep and bear arms, shall not be infringed.''
2nd Amendment PING
I could do without the SCOTUS review. I don’t think we’d get the votes due to Kennedy. Combine a ruling against 2A with the possibility of a dem controlled congress and presidency in ‘09 and I’d prefer to just take a pass.
Hard to believe that Republicans have had the presidency for 19 of the past 27 years and we cant get 5 pro-2A votes on the Supreme Court. Even harder to believe that we still debate this collective right BS.
On the other hand, maybe the people will define to the government the meaning of the second amendment.
I continue to think that “well regulated” means adequately organized and equipped. Also, I think that the militia is everyone able to fight in a crisis.
To do that, they need to be able to bring a gun.
The above is an exact picture of late 1700’s America. Calling forth the militia is essentially telling the farmers to put down their hoes and to pick up their guns.
The 2d amendment points out both the individual and the national interest in having armed citizens. Self-defense is a God-given right, AND it is useful for free nations.
Agree with everything you said.
My concern is that if SCOTUS rules against the decision using the “collective right” argument then the floodgates of gun control will be open as every anti-2A dem in govt will be yelling that we have no need for private ownership as we already have a National Guard.
There are a number of reasons why the National Guard cannot be the militia, but the one that strikes me is that they are permanently under the DOD. It is permanently provisioned by the DOD....states don’t buy tanks, jets, and missiles. Congress has it in the budget, so it is part of the standing army.
The “militia” would be more like the “draft.” (Incidentally, I support the draft, and think all this foolishness about “individual rights violated by a draft” is so much hogwash. If the situation is so dire that the militia must be called forth, then it’s our free nation or Donnie Draftdodger’s individual rights that’s the choice. I’ll choose a free nation any day.)
Bottom Line: How is the phrase “the people” defined in any OTHER amendments in which it appears?
A liberal professor is surprised his preconceptions about something are not supported by the facts? I assume before this he was content in having an opinion without any basis. These folks teach our young adults?
Which group of people were the Bill of Rights for again? I forget.
The meaning of the second amendment is a mystery only to lawyers for whom the meaning of the word “is” was equally mysterious.
Tribe is at least intellectually honest enough to admit his position does not line up with that of the FRamers, which puts him ahead of 98% of liberals.
I am glad to see that Professor Tribe has endorsed the plain reading of the Second Amendment.
Now I would very much like to see the 1934 NFA and the 1968 GCA struck down as unconstitutional infringements on the rights guaranteed by the Second Amendment.
"Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible," he says.
My concern is that if SCOTUS rules against the decision using the 'collective right' argument then the floodgates of gun control will be open -
The Court is not that politically stupid. Such a 'collective' decision would incite massive civil disobedience, akin to booze prohibition.
They will settle instead for the idiotic theory that 'regulations' can prohibit, - supposedly without infringing.
Then the work shifts, as Tushnet says, to proving that legislators in the USA have no delegated power to prohibit.
"The Second Amendment is one of the clearest statements of right in the Constitution. We've had decades of sort of intellectual gymnastics to try to make those words not mean what they say."
-- Benjamin Wittes, legal affairs analyst and guest scholar, Brookings Institution
"-- Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesn't involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendment a question that clouded an earlier case involving one city's complete ban on handgun possession.
He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one. --"
If our individual right is acnowledged, States like California are SOL with their unconstitutional prohibitions/infrigements. - Bet on it.
And, - bet that there will be a massive behind the scenes fight urging the Court not to hear Parker.
THE SECOND AMENDMENT IS ALREADY DEAD
By David Brownlow
July 19, 2005
Brownlow writes in part:
“Once we allowed our government to arbitrarily define the term arms as strictly limited to a few select types of rifles and pistols, we cleared the way for the regulation of gun style, gun size, gun caliber, gun rate of fire, barrel length, magazine capacity, as well as the explosive power of the shells, the type of projectile that can be launched from our arms, and on and on. In other words, we gave up any chance of a putting up a real fight against our occupiers when we allowed the occupiers to make up the rules. “
“But that is only half the problem. While we have permission to keep and bear what is essentially a 21st Century version of a muzzle loader, our federal and local police forces have been arming themselves to the teeth with the most advanced weapons and technologies our money can buy.”
“Sure, most of us can still hang onto our rifles, shotguns, and depending on where we live, our handguns which gives the false impression that we have a 2nd Amendment that actually protects our right to keep and bear arms. But, if we are only allowed to keep the guns they tell us we can keep, and if we are only allowed to carry them the way they tell us we can carry them, then, that is not a right, that is not a guarantee - that is a favor.”
“It would be more accurate to call it, The permission to keep and bear the arms. (2nd Amendment, Rev. A)”
Food for thought...
('cuz we have the guns!)
Perhaps, a coupla hundred million people with handguns, shotguns, and rifles can inflict a lot of damage.
Notice it doesn't say that a "the right of the people to keep and bear arms shall be established"
It recognizes an existing right, without which the militia could not exist. The militia is dependent on that right, the right is not dependent on having a militia.
The Right to Keep and Bear Arms
SUBCOMMITTEE ON THE CONSTITUTION
UNITED STATES SENATE
Printed for the use of the Committee on the Judiciary
Samuel Adams, a handgun owner who pressed for an amendment stating that the “Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms,” would be shocked to hear that his native state today imposes a year’s sentence, without probation or parole, for carrying a firearm without a police permit.
“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)
“The great object is that every man be armed . . . Everyone who is able may have a gun.” (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)
Orrin G. Hatch, Chairman
In 1511, Henry VIII increased the property requirement to 300 marks. He also expanded the requirement of longbow ownership, requiring all citizens to “use and exercyse shootyng in longbowes, and also have a bowe and arrowes contynually” in the house. 10 Fathers were required by law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them in longbow use.
In 1514 the ban on crossbows was extended to include firearms. 11 But in 1533, Henry reduced the property qualification to 100 pounds per year; in 1541 he limited it to possession of small firearms (”of the length of one hole yard” for some firearms and “thre quarters of a yarde” for others)12and eventually he repealed the entire statute by proclamation.13 The later Tudor monarchs continued the system and Elizabeth added to it by creating what came to be known as “train bands”, selected portions of the citizenry chosen for special training. These trained bands were distinguished from the “militia”, which term was first used during the Spanish Armada crisis to designate the entire of the armed citizenry. 14
The militia continued to be a pivotal force in the English political system. The British historian Charles Oman considers the existence of the armed citizenry to be a major reason for the moderation of monarchical rule in Great Britain; “More than once he [Henry VIII] had to restrain himself, when he discovered that the general feeling of his subjects was against him... His ‘gentlemen pensioners’ and yeomen of the guard were but a handful, and bills or bows were in every farm and cottage”. 15
History: Second Amendment Right to “Keep and Bear Arms”
"No free man shall ever be debarred the use of arms." ~Thomas Jefferson, 1776
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe." ~Noah Webster, 1787
"To disarm the people is the best and most effectual way to enslave them."
"What is the militia? It is the whole people, except for a few public officials." ~George Mason, 1788
"The said Constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms." ~Samuel Adams, 1788
"The militia is our ultimate safety. We can have no security without it. The great object is that every man be armed." ~Patrick Henry
"Necessity is the plea of every infringement of human freedom. It is the argument of tyrants, it is the creed of slaves." ~William Pitt, 1783
But then when has Harvard Law ever let a little think like the facts confuse them.
Parker v. Washington D.C. in HTML courtesy of zeugma.
We also note that at least three current members (and one former member) of the Supreme Court have read "bear Arms" in the Second Amendment to have meaning beyond mere soldiering: "Surely a most familiar meaning [of 'carries a firearm'] is, as the Constitution's Second Amendment ('keepand bear Arms') and Black's Law Dictionary . . . indicate: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for"bear Arms."
If Ginsburg and Souter maintain their previous opinions, that will be enough to give Kennedy what he needs to go with an originalist interpretation of the 2A.
-- Benjamin Wittes, legal affairs analyst and guest scholar, Brookings Institution
Worth repeating. Good one, EdReform.
One of my favorite Samuel Adams quotes was "How strangely will the tyrant pervert the plain meaning of words!" Some truths are indeed perennial.
Dunno what his BUIS is; there are so many to choose from. I use the ARMS #40L myself.
From my FR home page, an item I picked up from another FReeper:
The term “regulated” applied to clocks means “accurate in keeping time”. It made sense, particularly in 18th Century armies, to have to pay a lot of attention to how well soldiers could operate in massed formations. Soldiers had to be drilled to load, aim, and fire as one unit. You do NOT want the rifle next to you to be firing (and emitting a shower of sparks) while you are pouring gunpowder into your musket. Everybody had to do every step together with no screwups.
The problem is elitists like this harvard professor (including some harvard grad republicans too I might add) seem to quietly favor “colective rights” in the second amendment.
a “collective right” rewriting of the consittution will terminate not just the second. ALL the bill of rights would suddenly become open to “collective right” revisionism.
No more “personal” 5th amendment right, just a “collective 5th amendment.
Then I'll assume Ms. Froman has never read Judge Reinhardt's 70-page collective right opinion in Silveira v. Lockyer (2002) written in response to Judge Garwood's 33-page individual right opinion in U.S. v Emerson (2001).
Perhaps Ms. Froman meant the courts have never agreed on what it means. But if a 70-page and a 33-page opinion does not "explain and elaborate" what it means in the eyes of the court, then I don't know what does.
Perhaps because liberals have been appointing judges who legislate from the bench, instead of interpret the Founders' intent?
Not according to the Militia Act of 1792. Only white, male citizens between the ages of 18 and 45 need apply. And they had six months to come up with a gun once notified.
"The people" referenced in the second amendment addressed a very narrow group. Plus, the second amendment protected the RKBA of those people from federal infringement only.
We are not weak if we make a proper use of those means which the God of Nature has placed in our power... the battle, sir, is not to the strong alone it is to the vigilant, the active, the brave. Patrick Henry
It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace -- but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death! Patrick Henry
There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law. George Mason. Objections to the Constitution
Mr. George Mason, still thought that there ought to be some express declaration in the constitution, asserting that rights not given to the general government, were retained by the states. He apprehended that unless this was done, many valuable and important rights would be concluded to be given up by implication. All governments were drawn from the people, though many were perverted to their oppression. The government of Virginia, he remarked, was drawn from the people; yet there were certain great and important rights, which the people by their bill of rights declared to be paramount to the power of the legislature. He asked, why should it not be so in this constitution? Was it because we were more substantially represented in it, than in the state government? If in the state government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should be secure from the enc[r]oachments of the legislature; he asked, if it was not more necessary in this government, where they were but inadequately represented? He declared, that artful sophistry and evasions could not satisfy him. He could see no clear distinction between rights relinquished by a positive grant, and lost by implication. Unless there were a bill of rights, implication might swallow up all our rights. George Mason. Founders Constitution. 16 June 1788 Papers 3:1084--85 Volume 1, Chapter 14, Document 42
People who state that "shall not be infringed" means anything other than an ABSOLUTE protection for an Individual Right to Keep and Bear Arms are either too stupid to read what the Founders wrote or are Traitors.
Plain and simple.
I agree. But even if they did rule, they may end up not incorporating the second amendment -- meaning the ruling (either individual or collective) would only apply to federal laws.
~~~~ We, as a society, decide which rights we will protect --- We can choose not to protect your rights --- . If and when a majority of the people decide that we should, then we will. Given that we're a self-governing nation, there's nothing to stop the majority from deciding this. ~~~
That may be, but the militia were not what you’d call “well regulated” in the manner that you are referring to.
Actually, at the time of writing of the BOR, the term "regulated" had a much broader meaning, which in modern language means something much closer to "smoothly functioning".
Remember, we were at the very beginning of the industrial revolution. Mechanisms which seem commonplace to us today, were just beginning to be seen.
Pendulum clocks had regulators, and so did steam engines. The purpose of the regulator on a steam engine was to keep it running at a constant speed.
Whom among us is willing to put forth the proposition that challenges God?
~~~ California can ban all guns if they so chose. There's nothing in the state constitution (one of six states, I believe) about the right to keep and bear arms. ~~~~
Some communitarians here agree. -- They claim:
~~~ California can ban all guns if they so chose. There's nothing in the state constitution (one of six states, I believe) about the right to keep and bear arms. ~~~~
The definition of "the people" differs, depending on the subject -- the Founders used the phrase to mean "the particular group".
If they meant every individual they would use the term "citizens", or "persons" or "he/him".
As an example, Article I, Section 2 of the U.S. Constitution reads (in part): "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."
There, "the people" only referred to white, male, citizen landowners -- not everyone.
The fifth amendment refers to "person", protecting the individual right of everyone.
f Parker is the long-awaited clean case, one reason may be that lawyers for the National Rifle Associationwho helped steer the legal strategy of the plaintiffs and backed them financiallyhave learned from earlier defeats, and crafted the case to maximize the chances of Supreme Court review.Stuff and nonsense. Parker is a "clean" case because the lawyers from CATO worked hard to make it such. The NRA has done everything possible to keep it from being heard - from trying to take over the case, to filing parallel cases that include stacks of irrelevant issues that seem to have been intentionally designed to give the courts a reason to dismiss on other grounds, to trying to get Congress to repeal the ban rendering the case moot. The NRA does, finally, seem to have gotten on board with Parker, but the streng6h of the case has nothing to do with the NRA.
Actually, at the time of writing of the BOR, the term 'regulated' had a much broader meaning, which in modern language means something much closer to 'smoothly functioning'.
"-- A "well-regulated" militia is not a prohibited militia but one that is well drilled.
Even those who read the Second Amendment as a "collective" rather than an individual right on the basis of this preface concede--indeed their theory requires them to insist--that the power to regulate the militia that the Constitution elsewhere confers upon Congress does not include the power to forbid or prohibit the militia. --"
The power to regulate v. the power to prohibit
I’ve never understood why there is any question in the wording of the 2nd Amendment.
This is in a document known as “The Bill of Rights,” which was designed by the founders to protect state and individual rights from encroachment by the federal government.
There are 2 parts to the amendment. Only one of those 2 parts directly addresses a right. So that it the “main” part of the amendment.
The words “people” and “state” are used in the Bill of Rights. They are NOT interchangeable. If they were, there would be no reason to use both words, or to make a distinction between the two, as can be seen in the 10th Amendment.
“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.”
The first part of the Amendment is a justification for the second. It’s that simple.
Unfortunately, the SCOTUS decided that “Congress shall make no law” doesn’t really mean “Congress shall make no law” either...
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