Skip to comments.Gun Fight (analysis of Parker/Heller DC gun case)
Posted on 08/25/2007 3:09:54 PM PDT by Atlas Sneezed
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.
In July 1976, less than three years after the District of Columbia was granted the right to govern some of its own affairs, its newly elected city council asserted its new powers by passing one of the nations most controversial laws on one of its most controversial issues: gun control.
In direct defiance of Congress and the White House, the council outmaneuvered the National Rifle Association (NRA)then a million members strongand voted 121 to place an outright ban on almost all handguns.
The goal was to save the Districts citizens from a rising tide of violent crime. By the time the ban was enacted, the Bureau of Alcohol, Tobacco and Firearms or ATF (now known as the Bureau of Alcohol, Tobacco, Firearms and Explosives) had singled out the District as one of 11 cities for a crackdown on handgun violence. Guns were top of mind. In addition to the usual run of murders, rapes, and robberies, there had been two recent attempts to murder President Ford with a pistol (albeit in California), and in nearby Baltimore, a three-year-old had shot and killed a six-year-old.
Under the ban, known as the Firearms Control Regulations Act of 1975, all handguns in the District were declared illegal unless they were registered before the ban took effect. Registered guns were restricted, too: they were to be kept in the home, unloaded and disassembled, or if assembled, disabled by a trigger lock or some other means.
The ban further forbade District citizens from carrying their registered weapons, either openly or concealed, unless they were on their own property. (Later, the ban was amended to forbid the movement of guns on the owners property, too, which meant owners could not legally transport their registered guns from room to room within their homes.)
The ban was, and remains, the most stringent in the country. But it was daring for another reason, too: it tested the limits of the Districts newly granted autonomy.
Under the Home Rule Act, the Districts citizens were given the right to elect their own city council and mayor. The council was given the authority to legislate on local matters, subject to congressional approval. But it was not allowed to amend its own criminal code. As it turns out, that would remain the sole province of Congress until 1979.
On the advice of the staff of Rep. Walter Faunteroy, the famed civil rights activist who was then serving as the Districts first delegate to Congress, the council sidestepped this limit by declaring its gun ban to be part of its health code, not its criminal code.
When Congress held hearings on the legality of the ban, a freshly elected Texas Republican named Ron Paul testified the ban was flat-out illegal. He predicted, I dont think this law will hold up this law is going to be challenged and it is going to be thrown out.
Yet somehow, the Districts handgun ban has stood, almost entirely unchallenged, for three decades. Until now.
Parker v. District of Columbia In March 2007, a three-member panel of the United States Court of Appeals for the District of Columbia Circuit struck down the heart of the Districts ban on the grounds it violates the Second Amendment. In so doing, the court concluded the Second Amendment guarantees an individual right to keep and bear arms, not just a collective right that hinges upon service in a militia.
The case in question is Parker v. District of Columbia, which originally was filed in 2003 in the U.S. District Court for the District of Columbia Circuit.
In May 2007, the court declined to hear the case en banc, and the District petitioned for a 90-day stay of mandate, which was granted. That means the District may continue to enforce its handgun ban through Monday, August 6.
Between now and then, it is expected that the District will appeal the case to the United States Supreme Court. District of Columbia Mayor Adrian M. Fenty has said he would instruct his lawyers to explore every legal option that will uphold the citys gun ban, which implies an appeal to the Supreme Court. Indeed, the court said it granted the District a stay of mandate based on its expectation the District would seek certiorari. District of Columbia Solicitor General Todd Kim declined to comment on the Districts plan, but insiders confirm an appeal is likely.
Complicating matters, the National Rifle Associationwhich fears the possibility that the Parker decision will not be upheld by the Supreme Courtis backing congressional legislation that would repeal the Districts ban. The District of Columbia Personal Protection Act is being sponsored by Sen. Kay Bailey Hutchison (R-TX) and Rep. Mark E. Souder (R-IN). Nearly half the Senate has signed on to the Hutchison bill, and Souders cosponsors number 235.
Neither bill has seen congressional action since 2005, but the Parker team is worried. If the legislation were enacted, the Parker decision would be mooted and vacated. Frankly, that would be a disaster for the Second Amendment, says Alan Gura, lead counsel for the Parker plaintiffs and a partner at Gura & Possessky, P.L.L.C.
Guras faith that the Supreme Court will uphold Parker has put him at odds with the NRA; he finds himself in the odd position of urging gun ownership advocates to vote against the bills that would repeal the ban. Meanwhile, gun control advocates also are in a bind. Fighting for the D.C. gun ban means supporting an appeal to the Supreme Court. If the Court grants cert and then strikes down the ban, that would pave the way for challenges to gun control laws all over the country.
Parker was no accidental challenge. It was a test case that had been carefully crafted by Bob Levy, a senior fellow in constitutional studies at the libertarian think tank the Cato Institute.
Levy wasnt just looking to strike down the Districts handgun ban. He wants to get the case before the Supreme Court, where he hopes to convince the Court to adopt an individual rights view of the Second Amendment. Depending on which side is speaking, that would either be a reversal or a clarification of the only Second Amendment case the Supreme Court has ever decided, United States v. Miller, in 1939.
To David Gossett, who helped write a joint amicus brief in support of the Districts handgun ban, an individual rights reading would require a reversal of Miller. The Supreme Court in Miller made it quite clear that the Second Amendment, as far as Congress and the Founders were concerned, is about the right of people to band together in a militia, says Gossett, a partner at Mayer, Brown, Rowe & Maw LLP. The Second Amendment is the only amendment that has a prefatory clause, and that clause has a clear purpose.
Arguments that the Second Amendment rights extend beyond militia service are wrong, Gossett contends. Its losers history that theyre focused on.
Gura counters that Miller explains that when people are called to militia duty, they are expected to bring arms supplied by themselves. Clearly to the extent that the Founders were concerned about preserving the militia, they saw the right to keep and bear arms as essential to that purpose. Which is not to say thats the only purpose they had in mind.
United States v. Miller Miller involved two men who were indicted for crossing state borders with an unregistered sawed-off shotgun in violation of the National Firearms Act of 1934. The defendants counsel argued, among other things, the act was a violation of the Second Amendment.
The Court disagreed, saying the arms referred to by the Second Amendment must have some reasonable relationship to the preservation or efficiency of a well regulated militia. Without proof that a sawed-off shotgun fell in this category, the Court said it could not conclude that the Second Amendment guarantees the right to keep and bear such a weapon.
In its analysis, the Court declared the Second Amendments obvious purpose is related to the upkeep of a militia, in accordance with the amendments preamble, A well regulated Militia, being necessary to the security of a free State It did not state the amendments purpose was related to an individual right to bear arms outside of a militia.
Gun ownership advocates argue the preamble is an example of what the people may do with guns they keep and bear, not a limit. The Constitution contains three preambles: We the People, the preamble to the Copyright and Patents clause, and the one in the Second Amendment, Gura says. And what the courts have consistently held, quite logically, is that preambles are nice, flowery language, but they dont limit or contain the operative clause. The militia clause gives a reason, but it doesnt give the only reason. It cant negate completely the fact that the right of the people is to keep and bear arms.
Paul Rothstein, who teaches constitutional law at the Georgetown University Law Center, thinks Miller is confusing. It is being read different ways by different people and different courts. It wasnt clear whether Miller was saying, This is not an individual right. This is just a right of state militias. Or, whether it was saying, This particular type of gun was a sawed-off shotgun that wasnt ever used by militias. Individual people have the right to have guns that the militia would have used.
Dennis Hennigan, counsel for the Brady Center to Prevent Gun Violence, thinks Miller is hard to misunderstand. People get all involved in, Is the right collective? Or, is the right individual? Its actually much simpler than that. The Miller Court says, quite expressly, that the purpose of the Second Amendment is to ensure the continued viability of state militia and that the right guaranteed must be understood with that in mind. Nine other circuit courts have said thats what Miller said. The court of appeals panel said the Second Amendment is not limited to militia service, but that it also guarantees a right to possess guns for self-defense or huntingthat is private purposes. Those purposes are unrelated to militia service. So on the face of it, the Parker majority ruled in utter contradiction to the Miller holding.
How the Courts Read Miller For 68 years, courts interpreted Miller as the Supreme Courts definitive statement that Second Amendment rights are collective, not individual.
Then, about a decade ago, things changed. There was a concerted effort by a small group of right wing academics in the 1990s to create a question over the meaning of the Second Amendment, Gossett says.
The NRAs campaigning on the subject so offended former Supreme Court Chief Justice Warren E. Burger that he declared the Second Amendment to be the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime. Burger declared the NRA had misled Americans and had far too much influence on the Congress of the United States than as a citizen I would like to seeand I am a gun man.
Gossett says the NRA was successful in recasting the meaning of the amendment in the minds of the judiciary. You then get judges who are active members of the Federalist Society to buy into it, which all leads up to the Fifth Circuits decision in Emerson.
With its 2001 decision in United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit broke ranks with Miller. Emerson presented the question of whether the Second Amendment protects the right of an individual under a domestic restraining order to keep and bear arms.
The case involved a man who was placed under a restraining order after having threatened his estranged wife and daughter. In its 77-page decision, the Fifth Circuit opined at length on the origins of the Second Amendment, and declared that it guarantees an individual right to bear arms. Among other cases, the majority cited the 1990 Supreme Court decision in United States v. Verdugo-Urquidez, in which the Court held that the people of the First, Second, Fourth, Ninth, and Tenth Amendments are individuals, not states.
While the Emerson court held that Second Amendment rights are individual, it also found they are not absolute. The court declined to extend those rights to people under domestic restraining orders.
In a special concurrence, Circuit Judge Robert M. Parker said the majority decision had gone beyond the scope of the case. Nothing in this case turns on the original meaning of the Second Amendment, so no court need follow what the majority has said in that regard, he wrote.
Gossett agrees. The Fifth Circuits decision in Emerson is pure dictum, he says.
Ashcroft Memo Dictum or not, Emerson gained immediate traction with the Executive Branch. On Nov. 9, 2001, three weeks after the Emerson decisionand just two months after the terrorist attacks of September 11Attorney General John Ashcroft issued a memo to all United States attorneys, endorsing the Fifth Circuits view that the Second Amendment protects an individual right to bear arms, with reasonable restrictions.
In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment, Ashcroft wrote.
Judge Karen LeCraft Henderson, in her dissent in Parker, observed that the Ashcroft memo is not a legal precedent, and neither are any of the federal judiciarys ruminations about what the framers intended when they wrote the Second Amendment. Federal judges found it irresistible to extemporize on meaning of the Second Amendment, she noted, belittling their treatises as page after page of dueling dicta.
No matter what others have said about Second Amendment rights, Henderson took view that, Millers label is the only one that matters. And unless and until the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow.
A Tale of Two Lawsuits Although many have assumed that Parker is backed by the gun lobby, that is not the case. In fact, due to disagreements over strategy, the NRA has tried to derail the Parker litigation to prevent it from getting to the Supreme Court. The tale, which is spelled out in court documents relating to the Parker case, is an amusing illustration of how politics make strange enemies.
Levys strategy was to file a test case that could only be decided on Second Amendment grounds, and that had the greatest chance of making its way to the Supreme Court.
He wanted his case to be as clean as possible, meaning that the plaintiffs would be citizens with no criminal records, and their complaint would be strictly limited to the meaning of the Second Amendment, so the case could not be decided on any other grounds.
All of the challenges that had been mounted in the past had been by criminals, seeking some excuse for felony charges, all of which were sort of absurd, Levy says. There hadnt been a good test in the courts before Parker.
The summer before Parker was filed, the NRA met with Levy to discuss the case. According to the Parker teams description of the exchange, the NRAs lawyers said they were worried Parker might prevail in appellate court but meet a more hostile reception at the Supreme Court based on the near-term composition of the Court. At that point, Justice Sandra Day OConnor was on the Court and was considered a majority maker, but her position on gun control was unclear.
The NRA counsel then encouraged Parker counsel either not to file the case, or, if the case were filed, to build in a trap door that would give the court a basis, if it chose, to avoid a four-square holding on the Second Amendment and thereby minimize the likelihood of the Supreme Court reaching that issue, according to court documents.
Levy was determined to maintain control over Parker, which Levywho once ran his own technology investment firmis personally funding, and which Gura is working on for below market rates. We didnt want Parker portrayed as litigation that the gun community was sponsoring. We wanted to retain complete control over plan of selection of the parties to file complaint and the arguments that they would present to the court and the timing and content of the briefs, Levy says.
After all, the NRA had 26 years to do it, and the fact that they didnt suggest it was time for other people to step in, Levy says. (Twenty-six years refers to the time between the passage of the Districts handgun ban, and 2002, when Parker was being researched.)
Parker was filed on Feb. 10, 2003. The NRA responded by filing its own test case, Seegars v. Ashcroft on April 4, 2003. Seegars was filed in the same court, and has since been renamed Seegars v. Gonzales. The lead counsel for Seegars had conducted some early research for the Parker case. Gura derides Seegars as a copycat case.
In a messy courtroom battle, the NRA tried and failed to have Seegars combined with Parker. Seegars moved through the court more quickly than Parker, but it eventually was rendered moot when all five of its plaintiffs were denied standing.
Though Parker prevailed in the D.C. Court of Appeals, that court denied standing to five of its six plaintiffs, including the cases namesake. Parker now has only one plaintiff, Dick Anthony Heller, a District police officer who is licensed to carry a handgun as part of his job protecting the federal judiciary at the Thurgood Marshall Federal Judiciary Building in the District.
Standing In both Seegars and Parker, plaintiffs lost their standing because they did not meet the standing doctrine, as set forth in the highly controversial 1997 decision in Navegar, Inc. v. United States.
In Navegar, the U.S. Court of Appeals for the D.C. Circuit ruled a Miami-based maker of a top-selling semiautomatic assault gun could not challenge the federal assault weapons ban unless its products were specifically named in the ban, which they are not.
Since Navegar, D.C. plaintiffs who wish to challenge laws that they have not yet broken must first prove the District has singled them out for enforcement. All of the plaintiffs in Seegars and Parker mounted pre-enforcement challenges to the law, but none could prove the District had singled them out for enforcement.
The only reason Parker plaintiff Heller still has standing is that, unlike the others, he tried to register a handgun he planned to keep in his District home, and his application was denied. The denial of registration is considered sufficient cause to grant standing.
In both Seegars and Parker, the appellate court applied Navegar grudgingly. In Seegars, the court noted that although it was faithfully applying Navegar, Navegar was not consistent with the Supreme Courts 1979 decision in Babbitt v. United Farm Workers National Union. In Babbitt, the Court ruled a person could challenge a law that affects a constitutional interest without breaking that law, as long as he could show that he was likely to be prosecuted if he did.
Theres been a lot of criticism of Navegar because its fairly apparent that Navegar is wrong, Gura says.
Writing for the majority in Parker, Judge Laurence Silberman signaled as much: unless and until this court en banc overrules these recent precedents [Navegar and Seegars], we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar, he wrote.
Gura does not think the Navegar precedent will last. Navegar is a dead case walking, he says. At some point in time, in the very near future, the D.C. Circuit will address it and get rid of it. I cant imagine that with two panels within three years saying its inconsistent with Supreme Court precedent, that theyre going to allow it to fester and make problems. Personally my opinion is Navegar is gone. Its just a question of when and how theyre going to bury that precedent.
Crystal Ball Hennigan believes the Supreme Court is likely to grant cert in Parker. They need four votes to take it up. And its certainly possible to count four votes for taking that up. I would think most likely four would probably be Scalia, Thomas, Roberts, and Alito. But you never know, he says.
Jonathan Katz, a Second Amendment lawyer who is a partner at Marks & Katz, LLC, is not sure the Supreme Court will take the case. It seems that the Supreme Court has been very successful in avoiding this issue and will probably find a way to sidestep it here. One of the reasons for review is that there is a split in the circuits. The Supreme Court can always decide that just one circuit following a different path from the rest of them is not enough.
Rothstein agrees, for different reasons. Although the Court did take up cases on partial-birth abortion and greenhouse gases, in general, he says, I think this Court has indicated they want to steer away from the major social issues. I see them as deciding more mundane cases like commercial construction. They may not want to reach out and get this.
The Justices If the Supreme Court does grant cert, the District will find it toughest to win over the four justices noted by Hennigan.
In his confirmation hearings in 2005, Chief Justice John G. Roberts Jr. indicated he did not think Miller had settled the issue of what the Second Amendment means. Thats still very much an open issue, he testified. He also said Emerson alone (Parker would not be decided for another year and a half) constituted a split among the circuits.
In extrajudicial writing, Justice Antonin Scalia has espoused an individual rights view. In his book, A Matter of Interpretation: Federal Courts and the Law, he wrote the Founders considered the right of self-defense to be absolutely fundamental.
Justice Clarence Thomas has signaled a similar outlook. In a concurring decision in Printz v. United States (the Courts 1997 decision that struck down the background check requirement of the Brady Act), he said scholarship shows the right to keep and bear arms is a personal right. He also said he would welcome a chance to review a Second Amendment case.
Justice Samuel Anthony Jr. Alito hasnt written on the Second Amendment. But when he was on the U.S. Court of Appeals for the Third Circuit he wrote, in a minority opinion (United States v. Rybar, 1996), he favored striking the federal machine gun ban on commerce clause grounds. At the Brady Center, Hennigan says, We felt very strongly that he had shown a right wing-activist tilt in his judging. He was the first nominee to the Supreme Court that our organization has ever opposed.
Justice Anthony M. Kennedy may be the swing vote, Hennigan believes, but he is not aware of Kennedys thinking on the issue.
In her confirmation hearings in 1993, Justice Ruth Bader Ginsburg declined to answer questions on her view of the Second Amendment.
In his confirmation hearings in 1994, Justice Stephen G. Breyer said in 14 years, I have never heard anyone seriously argue that any [gun control legislation] was unconstitutional in a serious way. Asked about Miller, Breyer said the decision was fairly limited and narrow. Asked if he would attach special significance to the capitalization of certain first letters in the amendment, Breyer said he would consider it.
Justice David Hackett Souter hasnt written or spoken on his interpretation of the Second Amendment, but he most often votes with Justice Ginsburg. Justice John Paul Stevens hasnt declared himself on the Second Amendment, either.
Of course, past statements by the justices are no indication of future votes. Its difficult for one to predict the outcome of a case based on what a judge has said or done, Hennigan says.
Effect on the District As the appeals process grinds on, the Districts handgun ban hangs in the balance. For decades, the District has said the ban has reduced murder and suicide rates. Its view was supported by a 1991 study published by the peer-reviewed medical journal, New England Journal of Medicine, that examined homicides and suicides in the District, starting almost a decade before the ban, and ending almost a decade after. The study compared these rates with corresponding data for nearby metropolitan areas in Maryland and Virginia, where there is no ban.
The authors concluded that the adoption of the handgun ban coincided with a 25 percent decline in gun-related murders and a 23 percent decline in gun-related suicides in the District. The study didnt find a similar drop in neighboring Maryland or Virginia, and it didnt find an increase in District murders and suicides that did not involve guns.
The ban prevented an average of 47 deaths each year after the law was implemented, the study concluded.
Critics of the study have questioned its methodology and noted the last data it considers is from 1987. They note that in 1988, the Districts overall murder rate jumped 64 percent, and it continued climbing through 1993.
Levy believes the ban is the reason the Districts crime rate is so high. His logic: only criminals have handguns, and that honest citizens are denied the right to self-defense.
Levy knows many disagree, but in Parker, he says, it is not up to his team to prove the ban causes or encourages crime. The rule is if the government wants to violate or truncate your constitutional rights, its the governments burden, first, to prove that it has a compelling need to do so; second, that what it proposes to do will be effective; and third, that there is no less invasive way.
So, its not up to me to show that the ban creates the crime. Its up to the government to show that gun control improves the situation, and theres no evidence to suggest that. All the evidence seems to point the other way.
Rothstein agrees the Court is not likely to find the ban an effective solution. Guns can come in from outside D.C. because criminals can get guns. It is only the law-abiding people that are restricted by the handgun ban. The Court may hold that the ban is not effective in promoting this compelling state interest, Rothstein says. (There is no question that handguns flow into the District, despite the ban. Last year, D.C. police confiscated 2,655 unregistered firearms.)
Who Is the Militia? One of the gun control policies that would seem to fit the text of the Second Amendment is in force across the Atlantic, in Switzerland. There, every able-bodied man between the ages of 20 and 42 must keep in his home a military firearman assault rifle or a semiautomatic pistoland ammunition. The point: to participate in compulsory service in the Swiss militia, which includes mandatory target practice.
The practice came under attack in 2001, after a man took his military-issued assault rifle into the Parliament building in the canton of Zug and shot dead 14 people before killing himself. The shooter was said to have been upset with transportation officials, based on a fight he had had with a bus driver two years earlier.
Hennigan does not think the Swiss system would ever be welcome here, not even by the NRA. Thats not something that the NRA would want. This is kind of the contradiction in their position. A true militia, he says, is subject to rule by government. According to Congress, a militia is controlled by the state. But, to the NRA, gun ownership is a private, individual right, Hennigan says. The idea of any government controlling the guns is anathema to the NRA. So the NRA doesnt believe in a militia.
That contrasts with the gun lobbys occasional position on how to read the militia clause of the Second Amendment. They say that if the militia is the issue, were all the militia. Youre in the militia; Im in the militia. So we all have the right to bear arms, Hennigan says.
Shadow of Virginia Tech The debate over gun control always has been highly emotional, but it took on a renewed urgency in April, when a mentally ill English major named Seung-Hui Cho used two semiautomatic handguns to methodically execute 32 Virginia Tech teachers and students before killing himself.
Virginia Tech is one more example of why guns are the scourge of America, Gossett says.
Levy predicted Virginia Tech will impact Parker insofar as it has invoked the usual cries from the usual suspects for more gun control. But I think the more rational view is the controls that are now in effect are the cause of the problem, not the solution. After all, it takes a long time to kill 32 people. Why the hell didnt someone step in sooner and stop this guy? Because nobody could carry a weapon on the Virginia Tech campus, Levy says, referring to the fact the university is a gun-free zone.
If the Supreme Court grants Parker cert, Levy believes the justices will consider the case on the facts, even though they are affected as humans by the horrors at Virginia Tech. These stories have a short shelf life. What counts is that the justices read this from a matter of law. And thats the way one would hope that is how the justices look at this case. Parker is not talking about concealed carry. Its not talking about outdoor use. Were talking about a gun in your home for use in the home. That has nothing to do with Virginia Tech.
And there was a reason the founders placed the capitol in a neutral city that was not part of any state. It was meant to prevent a state or local jurisdiction from exercising arbitrary control over the capitol, federal goverment, and its employees. I think Congress and federal empolyees should be exempted from all the local DC gun control laws.
No, Mr. Gossett, the real scourge is feel-good, do-nothing victim disarmament zones like Virginia Tech. (Actually, 'do-nothing' is not quite correct. Perhaps 'evil-enabling' is a better term.)
Why does anyone have such trouble with the language of 2A? To refer to the right of the people, means the people have a right. And we well know the Founders’ position on the source of rights: it is NOT convenience, security or practicality.
The militia depends on the right, not the right on the militia.
Guns are not for hunting Bambi. They are for keeping the despot at bay. There are millions of would be despots waiting in line for the day guns are outlawed.
The real problem with Virginia Tech is that the only person with balls was a 75 year old man.
The NRA’s backing of a legislative fix of the DC gun ban before the case can be heard by SCOTUS may be related to the NRA’s understanding that a win by pro-2A forces in court would serve to reduce the NRA’s raison d’etre, at least as a political entity.
Excellent post with cogent points from both sides compared and contrasted to expose the gunphobes for what they are.
The money paragraph: “Rothstein agrees the Court is not likely to find the ban an effective solution. Guns can come in from outside D.C. because criminals can get guns. It is only the law-abiding people that are restricted by the handgun ban. The Court may hold that the ban is not effective in promoting this compelling state interest, Rothstein says. (There is no question that handguns flow into the District, despite the ban. Last year, D.C. police confiscated 2,655 unregistered firearms.)”
In a nutshell and boiled down to molasses, as they say.
Well they say the “Pen is Mightier Than the Sword “
So the bans etc should be on the radio and TV which can reach millions with any manner of rumors lies etc that cause riots wars etc
I can think of one...Hillary.
With regret, I cannot take any article seriously which misquotes the 2nd Amendment in the very first line.
A well regulated Militia being necessary to the security of a free State, (ONE COMMA)the right of the people to keep and bear Arms shall not be infringed.
This is the first I've heard of capitalization of words in the second amendment having "special significance". I recall all the discussion of clauses and commas, but nothing about use of upper case...
On another thread, I offered some of the Founders own words to illustrate their simple 2nd A dictum: [emphasis added]
"Americans have the right and advantage of being armed -- unlike the citizens of other countries whose governments are afraid to trust the people with arms."
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed."
"I ask, sir, what is the militia? It is the whole people, except for a few public officials."
-- George Mason
"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American."
-- Tench Coxe
"A free people ought not only to be armed and disciplined but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government."
-- George Washington
"No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself and what he possesses; else he lives precariously, and at discretion."
--Andrew Fletcher (1655-1716)
"No freeman shall [ever] be debarred the use of arms [within his own lands or tenements]"
--Thomas Jefferson (1743-1826), proposed Virginia Constitution, June 1776, in Thomas Jefferson's_Papers
"To disarm the people... was the best and most effectual way to enslave them."
--George Mason (1725-1792), June 14, 1788, in the Virginia Convention on the ratification of the Constitution, in_Debates in the Several State Conventions on the Adoption of the Federal Constitution
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms..."
--Samuel Adams (1722-1803), in_Debates and Proceedings in the Convention of the Commonwealth of Massachusetts
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."
-- Tenche Coxe to James Madison. Federal Gazette. 1789
"The great objective is that every man be armed. Everyone who is able may have a gun."
"Those who hammer their guns into plows will plow for those who do not."
-- Thomas Jefferson
I cannot understand how these simple ideas and utterances of the Founders can be miscontrued, especially this one:
"The beauty of the second amendment is that it will not be needed until they try to take it."
A well regulated militia would always be a necessary check on tyrannical government. The founders knew that as long as the government had sole possession of weapons the citizens would be slaves. An army protects and defends against external enemies. A militia protects and defends from within. Further, the “well regulated” language only meant that the most resourceful method of both resisting and overthrowing tyranny required organization and a meeting of the minds and commonality of not only purpose but a commonality necessary to replace the government with the shared vision and ideas of it’s members. Being well regulated and organized necessarily would require the building of a concensus. And by extension, a concensus requires yet still democracy. Therefore, those that threw off and replaced tyrannical rule would at least be borne of democracy itself ensuring the greater potential for freedom. (Can anyone point to where they’ve ever read or heard my argument?)
As for gun ownership being a personal right, there are quotes galore from the founders and a the Bill Of Rights speak for personal rights as the DC Court correctly held. Guns put food on the table. They kept the wicked at bay. And it was so generally accepted that the individual has a natural right to defend life and property which was so core and central to everyone that it never dawned on the founders that one day society could become so diseased and otherwise duped and brainwashed into thinking that these natural rights were rights given by government.
I’m with you in spirit 100%, but half of those quotes are bogus.
Bumped for future reading...
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