Posted on 07/19/2007 5:46:33 PM PDT by neverdem
For the past 31 years, criminals and thugs in Washington, D.C., seem to have had little problem acquiring inexpensive firearms -- the city has one of the worst records in the nation for violent crime.
But for law-abiding citizens, the situation has been very different.
The District's 31-year-old handgun law bars most residents from owning handguns and requires all legally owned firearms to be kept unloaded and either disassembled or under trigger lock, rendering them ineffective if a bad guy broke in.
Six district residents recently challenged the law in court, some saying they want to keep handguns in their homes for self-defense purposes.
In March, the U.S. Court of Appeals for the D.C. Circuit, voting 2-1, said the district can't ban all handgun possession in the home. The appeals court said the Second Amendment protects a right that "existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense."
The ruling has been widely reported to mark the first time a federal appeals court has struck down a gun-control measure on Second Amendment grounds.
But on Oct. 16, 2001, the 5th U.S. Circuit Court of Appeals, sitting in New Orleans, ruled in United States v. Emerson: "We find that the history of the Second Amendment reinforces the plain meaning of the text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are members of a select militia or performing military service or training."
Now, the District of Columbia will ask the U.S. Supreme Court to revive the city's ban on handguns, in a case that could allow the high court to rule for the first time in 68 years whether the Constitution guarantees an individual's right to own firearms.
"We are willing to take our case to the highest court in the land to protect the city's residents," said Washington Mayor Adrian Fenty said in a press release.
Good.
The justices last considered the question directly in 1939, ruling in the Miller case that the National Firearms Act -- which requires payment of a $200 tax and registration of any sawed-off shotgun -- is constitutional because sawed-off shotguns were not used in combat during World War I and are thus not the kind of "weapons of militia usefulness" whose private ownership the Second Amendment protects.
At no point, it's worth noting, did any party to the Miller case operate under the presumption that Mr. Miller was, at the time of his arrest, a member of the National Guard or any other uniformed military service. The court did not hold the Second Amendment applies only to such persons, because no such persons were involved in the case, and that suggestion was never raised.
Furthermore, in the 2001 Emerson decision, the New Orleans appeals court specifically rejected any reading of the Second Amendment's preamble -- "A well-regulated militia, being necessary to the security of a free state" -- as meaning anything other than a simple directive that the entire body of the people, capable of bearing arms, must continue to be allowed to bear arms of current military usefulness, "such as the pistol involved here," without regard to membership in any uniformed government unit or service.
The appeals court even cited James Madison, who wrote in Federalist No. 46 that the proposed power of the Congress "to raise and support armies" posed no threat to liberty, since any such army, if misused, "would be opposed (by) a militia amounting to near half a million of citizens with arms in their hands."
By all means, let the U.S. Supreme Court convene and read the Second Amendment for its meaning, aloud, for all to hear.
There is much corruption in the capital, no doubt. Let us see if it has spread so high that the plain English of the founders can now be made to mean something other than what it clearly says, all in the name of the desired convenience of the ruling class.
Freedom-loving Americans should not fear this case. They should welcome it. Let's find out if the judiciary is on the side of the common man and his most basic freedoms ... or not.
There. Fixed it.
If crime is so bad a militia could be organised, but what good is an unarmed militia?
Close, but no cigar.
The court ruled that
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
The syllabus (summary), more often quoted than the above, put it slightly differently:
The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."
Since there was no evidence presented, one way or the other, at the pre-trial hearing where the motion to dismiss the charges because the law in question was in violation of the Constitution, the judge could be said to have "taken judicial notice", when he should not have. At the Supreme Court, no evidence or arguments were presented by the appellees, Miller and Layton, at all, they were not represented in that Kangaroo Court proceeding.
None the less the Court rejected most of the Government's arguments, and fixed on the language of a state court decision, Aymette v. State, 2 Humphreys (Tenn.) 154, 158, which did not concern the second amendment at all, but rather a state Constitutional provision which protected the RKBA *for the common defense", language that was specifically rejected for inclusion in what became the second amendment during debates in the Senate. Still even that week reed was never fully tested, because the "further proceedings", which could have seen such evidence presented, were never held. Miller was dead and Layton copped a plea in exchange for probation, which he successfully served out. Such evidence could easily have been presented, as short barreled shotguns had been in use for centuries as weapons of war. The Texas Calvary, during the Late Unpleasantness of the 1860s, was particularly fond of them.
BTW, the Court's decision did not mention WW-I or even the "Great War" as it was then known. The author could have at least read the decision, it's easy to find on the internet. Such as this copy from Cornell's Legal Information Institute.
Thanks for the text & link.
Much of what the author says is true. But the prosecution did include in their brief the following: "Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law."
The author is correct that the Supreme Court concerned itself solely with the nature of the weapon, and no basis was established to deny Miller his right to have any weapon that WAS suitable for militia use.
Freedom-loving Americans should not fear this case. They should welcome it. Let’s find out if the judiciary is on the side of the common man and his most basic freedoms ... or not.
. But the prosecution did include in their brief the following: “Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law.”
“Let’s find out if the judiciary is on the side of the common man and his most basic freedoms ... or not.”
They showee us where they stood - the leftist branch anyway, in the Court decision regarding eminent domain.
We need at least one more conservative on that court to counter Kennedy and the leftists and prop up Alitto, of whom I am still suspicious.
I am nervous after the Kelo decision but I would rather know for sure now while I am still young. I suspect a negative ruling will finally lay the cards on the table. Enough dancing around.
Yes, indeed. Let us find out now, and then we can either rejoice or fix things.
Why drag it out any longer?
A headline in this morning’s Washington Post reports 11 people injured in shootings in the Northeast part of DC. That DC gun ban that Boy Mayor Fenty is so anxious to preserve doesn’t seem to be working very well.
Here’s a great site with all of the filings and briefs of the Miller case, along with a good analysis:
http://www.rkba.org/research/miller/Miller.html
Absolutely. You can't claim that the idea never occurred to the Supreme Court, because it was right in front of their eyes. If the Miller Court wished to rule that only members of a militia were protected, that was their chance. The didn't. Their ruling would have resulted in an acquittal for Miller solely based on the nature of the weapon.
It needs a slight change to bring it in line with the truth
... protect the city'sNow it says what he means.residentsbureaucrats and politicians
That is a good site, but in this case I wanted to use a "neutral" site, one which a reporter, or other gun grabber, might trust.
That's exactly how I read the second ammendment. If the militia consists of 'we the people', we ought to have access to militia style (military style) arms.
Color me member of the un-standing Army.[Laying down, watching MSNBC, but ready to respond at a moment's notice]
I am a Veteran. I served in Vietnam and the Middle East. I am the master of my weapon. Militia, hell! I am an ARMY OF ONE.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.