Skip to comments.D.C. gun ban clearly violates 2nd Amendment
Posted on 11/27/2007 2:58:46 PM PST by neverdem
For some 30 years, the District of Columbia has banned handgun ownership for private citizens. It was approved by that city's council in the wake of terrible gun violence and a rising murder rate in the nation's capital.
The ban has stood through this time with other council votes, but without any official review by the U.S. Supreme Court.
Sometime next year, the high court will make a ruling on whether that law is constitutional.
It is surprising to us that it has taken this long for the court to get this case. It would seem that it would have gone to the highest appeal long before now. We do not understand all the legal entanglements that must have kept it off the court's docket, but it is certainly there now.
And now, if the court is acting properly, the D.C. gun ban should be struck down.
This is a clear case of constitutionality, not politics, not conservative or liberal. If Constitution's Bill of Rights clearly allows gun private gun ownership anywhere and we believe it does then it allows it in the District of Columbia.
"The right to keep and bear arms shall not be infringed," is what the Second Amendment says, and there seems to be little "wiggle" room in that statement.
In some instances Washington, D.C. being one of them we admit we despair of so many guns in the hands of so many people who would use them the wrong way, but the answer is not to abrogate the Constitution.
If one portion of the Bill of Rights can be limited by a local government, why can't another? There is no logic in saying on the Second Amendment is up for local review. To continue to allow this is to invite a city council or state legislature somewhere to decide that the First Amendment is too broad, or that the Fourth Amendment is too restrictive on law enforcement.
We know there are passionate arguments for gun control and that is part of the problem: The passion has blotted out clear thinking. This time the NRA is right. The law should go.
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 Constitutions Second Amendment (keepand bear Arms) and Blacks 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 forbear Arms.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
No, it doesn't.
The 2A wasn’t contingent on future emotions, body counts or hyped stats.
HAHAHHAA...but it does read that way, now doesn’t it?
Fixed it. The Bill of Rights, protects rights and reserves powers, it doesn't "grant" or "allow" anything.
You're right. It says "the right of the people to keep and bear arms shall not be infringed".
A) everyone, you idiot!
C) all persons
F) the people
When the second amendment was ratified in 1791, who were "the people" the Founders were referring to?
A) Everyone, you idiot!
B) Well, not everyone. Not foreigners. Just citizens.
C) Well, not convicts or the insane or felons or children. Most adult citizens.
D) Hmmm. Women didn't have full rights -- they couldn't vote. Adult male citizens.
E) Oops. Not Negro males. Adult white male citizens.
Very good class. "The people" in the second amendment were adult, white, male citizens. Last question.
According to the Militia Act of 1792, who were the militia?
A) Everyone, you idiot!
B) Adult, white, male citizens.
In 1792, the second amendment only protected adult, white, male citizens, coincidentally, the only ones allowed to serve in a well regulated Militia. Isn't it possible that the U.S. Supreme Court may look at that and conclude that the second amendment protected the right of individuals to keep and bear arms as part of a Militia?
Could go the wrong way guys.
The Supremes could rule that the 2nd Amendment only applies to the Congress and that cities and states can legislate whatever they want.
Course, DC’s special status could also figure in.
This guy gets it.
Congratulations, you were just ibrp!
I think that interpretation would fall apart on the understanding that women and children were also allowed to own firearms. Slaves obviously weren’t, but they were legally defined as 3/5 of a person at the time (for unrelated reasons).
Bzzzzzt! Wrong. Not according to my copy of the U.S. Constitution.
Duh, actually THERE IS NO WIGGLE ROOM in that statement. "Shall not be infringed" is as clear as Hillary Klinton is a socialist's slut. We all KNOW how clear that is. Same thing. Clear as her intentions to turn this Republic into a Soviet Union West.
Cool...slaves could own 3/5ths of a gun...leave off the trigger and the barrel.
“Isn’t it possible that the U.S. Supreme Court may look at that...”
Sure. But are they then going to revoke womens rights and go back to the “3/5ths of a person” status for Negroes? You can’t take things back to 1792 unless you are willing to take everything back to 1792.
Yes, the SCOTUS has been known to act in an illogical and ahistorical manner such as you suggest.
However, if one uses logic and breaks the structure of the sentence down, the composition of the militia has nothing whatsoever to do with the amendment--which addresses "the people" in its independent clause. An analogy: "A well educated elite being important to maintain our independence, the right of the people to own and read books shall not be infringed" would protect all of the people, not just the elite. Without broad ownership, the militia doesn't become possible.
"I ask, sir, what is the militia? It is the whole people, except for a few public officials." George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
Of course, that is just one of many indications that the right to keep and bear arms extends to us all.
Maybe your copy is not correct?
It's not wrong at all. It's not the whole second amendment, but it's correct.
See this official government site for the "official" version from the United States Statutes at Large but on the Library of Congress site. It's listed as Art. IV, since two other amendments were proposed by Congress at the time as what is now known as the Bill of Rights.
You even say it refers to the CITIZENS.
Slaves are freed and blacks are now citizens with full rights. Women now have full rights. If you really tried hard, you might be able to make the argument that only land owners registered to vote are eligible for second amendment rights. But that would be a very hard sell. There’s no way you can read it as excluding women and blacks.
But now that we’ve broached the subject of the “militia”, I want to review the assault gun ban. Shouldn’t a “militia” be granted unobstructed access to standard battle weapons? That means sidearms and basic army infantry rifles...aka the M16! And also body armor, night vision, armor piercing rounds, and whatever else they come up with in the future.
Grenade launchers, mortars, machine guns and sub machine guns...these could be argued not “standard” infantry weapons and might then require some additional qualifications...so maybe unrestricted access could be argued against.
But how the he11 could anyone argue against access to a glock, colt or baretta pistol or a plain standard 3 round burst M16?
oops...meant to ping you to my reply mentioning you.
Thank you for the clarification and information. Appropriate apologies to RP...
It does, because the second amendment was never "incorporated" to apply against the states. Thus this case avoids both that "easy out" for the Court, and the potential "bag of worms" that goes along with that issue.
The Constitution provides that Congress exercises "exclusive Legislation in all Cases whatsoever" over the District.
Interestingly, many laws restricting gun ownership is based on the claim that they "had no military use" and were therefore supposedly not protected. Note that New York State took that approach...but when convenient, they have now banned military weapons and are deceitful, dishonest creatures about equal to slimemolds. IANAL, but that's how I see it.
So what are we supposed to do? Did you read the excerpt from Parker in comment# 1? In Muscarello, both Ginsburg and Souter agreed that the Second Amendment had meaning beyond mere soldiering, i.e. it's not just a collective right.
The Supremes could rule that the 2nd Amendment only applies to the Congress and that cities and states can legislate whatever they want.
Doesn't tha t violate the supremacy clause of the U.S. Constitution?
Course, DCs special status could also figure in.
That would leave folks in D.C. with more rights recognized than in other parts of the country. That would beg for another court challenge.
I'm sure they were allowed. It's also quite possible that their right to own them was protected by their state constitution.
But we're discussing who the second amendment protects, and it protects "the people". "The people" did not include women and children.
As an example, Article I, Section 2 of the U.S. Constitution reads that "the people" elect House representatives -- women and children didn't vote back then.
All that's different today, of course. "The people" now include women and non-whites, and the military/militia is not the same.
Because of that, it's easier to examine the relationship between those who comprised "the people" in 1792 and those who comprised the Militia in 1792. Turns out they were the same individuals.
Nah. It means they couldn't own a six-shooter. Only a three-shooter. A real disadvantage.
But that is the "federal" definition of the militia. The Congress has power to provide for organizing and arming the militia, but not to say who is and who not in the militia. Otherwise they could say one needed to be 80 years and blind in at least one eye, thus negating the effectiveness of the militia as a counter to the "standing army". Even Federalists were somewhat wary of a standing army, and anti-Federalists, who the bill of rights was designed to placate, were positively apoplectic about it.
Even today, with the federal definition unchanged except to remove the "white" part, and to include female members of the National Guard, states have their own definitions. In Texas it is pretty much everyone, save a few public officials, 18-60, men and women alike.
What changed the military/militia?
Lotsa things violate the Constitution. I never knew that to be an impediment.
You must be one of them Constitutional 'originalist' dudes or something.
“Could go the wrong way guys.”
Boy, that’s for sure. We all thought the SCOTUS would strike down campaign finance reform.
No, not looking at it that way.
Looking at the second amendment as protecting only those individuals who are members of a well regulated Militia, which today includes women and nonwhites.
Agreed, but that was what robertpaulsen used as his reference—as I understand it, for “original intent”—so that’s what was relevant in my response.
But they could have as far as the federal constitution was concerned. The Art. I, Section 2, just says that the electors in Congressional elections shall have the same qualifications, set by individual states, as those required of electors in elections for the most populous branch of the State Legislature.
Of course the first amendment also protects a "right of the people", so you are saying women, and children, were not allowed to assemble? Or that women had no right to be secure in the persons, houses, papers and effects against unreasonable searches and siezures? Or that they had no "retained rights" or "reserved powers" as the people have per the 9th and 10th amendments respectively?
In 1792 only adult, white, male citizens could vote. In many places you also had to be a property owner as well.
In any event, where is your documentation that in 1792 firearms were restricted to the subset you named? Young people also owned and carried firearms. Women were barred from firearms ownership? Where was that statute?
Sounds like you are making up your data
Thank you. I'll take that as a complement.
I believe it. I wouldn't be surprised if there were some foreign mercenaries, also.
If the federal government wanted to take their weapons, do you believe the U.S. Supreme Court would have ruled back then that Negroes and foreigners had second amendment protection?
Moot point. I was referring to the Militia Act of 1792, and it said nothing about non-whites.
Why would you want to limit it to only individuals who are members of a well regulated militia? Being a "well regulated militia member" implies you can show up properly armed. If you can't get yourself properly armed so you can be well regulated, then you never will be. It looks like a semantic paradox - you can't be well regulated unless you're properly armed, and you can't get properly armed until you're well regulated.
It’s rather amusing that we are considering the Second Amendment relevant, when so many FReepers make personal attacks against Ron Paul when he says we should follow the document.
If we aren’t going to amend it to fit what we want it to read (e.g., allowing the feds to meddle in state issues like education, etc.), then how can we claim that what it says has any meaning?
It seems to me that we should stand up for the Constitution, and if it’s not what we want, amend it...just ignoring it puts us at risk on the parts we DO like (and yes, I recognize the nature of my wording ...it’s partly to point out the hypocrisy of many on both the supposed Right and the Left)
The militia at the time of ratification was defined as all adult males, 16 and up, capable of serving, whether there was already a militia organization or not.
Except, of course, to the highly trained elite charged with "interpreting" the law to us peons; people so addled of mind, who have a hard time determining what the meaning of "is" is. And so are free of understanding what the ordinary man intends and grasps from the words.
Might as well toss a coin on any contest of ideas - or perhaps hire a prophet to read the entrails of a newly slaughtered goat. It could save a lot on the maintenance of a system of addled old twits to decide. And, it would at least half the time, come down on the right side.
Why does the naked emperor ride resplendently gowned through the city - because the people do not act in concert to recognize the farce and toss the cretins out. Our patriots did in 1776, but through lack of our vigilance, we've allowed the crud to grow all over us again, and mire us in pointless debate.
I think it does.
Now, if it said, "A well-armed populace, being necessary to the security of a free State ...", then I could agree with you. But it doesn't. The Founders believed that a well regulated Militia was necessary to the security of a free state, and that's what they wanted to protect. Not simply a gaggle of citizens with guns.
The Constitution has been amended by mutual agreement, such that women and blacks now come into the definition of “people”. Prior to amendment, those groups could be restricted, and were.
I understand your argument, and if the court chose to be very inflexible, it might agree.
However, the phrase “the people” appears 5 times in the Bill of Rights, and no one argues that in the 4 instances it’s used apart from the second amendment that it means anything other than ‘everyone’. The fourth amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “
No one would argue that the use of “the people” in this amendment was only intended to apply to ‘adult white males’. It’s difficult to see why they would not extend that same meaning to the 2nd amendment.
Anyway, the Bill of Rights did not restrict the people in their rights, it specifically stated what the government could not do. The second amendment was stated very forcibly - the government shall not infringe on the right of the people to bear arms, and its meaning since has been eroded by idiots who would not understand and who would welcome tyranny vs. individual sovereignty - as was the reverberant theme of the revolution.
I noticed on ABC (so called) News tonight that certain of the cops down in Miami are apparently not interested in any of that.
Well, it seemed so from my chair.
You work for the government, don't you?
What is your point?
Gun Control: The theory that a woman found dead in an alley, raped and strangled with her pantie hose, is somehow morally superior to a woman explaining to police how her attacker got that fatal bullet wound.