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.
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, DC’s 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.
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