Court must take very careful aim at Second Amendment

The Atlanta Journal-Constitution ^ | 11/28/07 | BOB BARR

[neverdem]

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.

— Second Amendment to the Constitution of the United States

In announcing last week that the U.S. Supreme Court would decide whether a lower-court decision last spring invalidating the District of Columbia's 31-year-old handgun ban should stand, the high court teed up a modern-day "shot heard 'round the world" that may very well define whether freedom retains any life breath in this country.

Since its adoption as part of the Bill of Rights in 1791, the Second Amendment has generated controversy far beyond its short, 27-word length. Yet, surprisingly, in all those 216 years, the Supreme Court has never ruled definitely on the amendment's reach. Does it, as the District of Columbia and a number of federal courts have decided, simply codify a collective right of an organized "militia" to arm itself? Or, as other courts and judges have concluded — including Senior Circuit Judge Laurence Silberman of the federal Court of Appeals for the D.C. Circuit, who wrote the decision in the case the Supreme Court will hear in its current term — does the Second Amendment guarantee the right of an individual to possess firearms for self-defense?

While many modern-era opinions issued by federal courts, including the Supreme Court, are distressingly complex and convoluted, Silberman's published decision is not. His 58-page majority decision is remarkably lucid; legally sound and historically based. It is written for the layperson as well as the law school honors graduate; and, most important, it is written to appeal to the moderate among the Supreme Court's nine.

Clearly with an eye toward his superiors on the high court, Silberman did not in his decision claim the Second Amendment serves to ban any government restriction of the individual right to keep and bear arms. Drawing analogy to the First Amendment's language (the amendment most often cited by more liberal jurists as the embodiment of individual rights against the restrictive power of the government), Silberman noted that both amendments may be held subject to "reasonable restrictions." The First Amendment guarantees freedom of speech, but it does not shield the irresponsible shouting of "Fire!" in a crowded theater. Similarly, the Second Amendment's language guaranteeing the fundamental, pre-existing right to "keep and bear arms" for self-defense is subject to reasonable limitations by government.

As noted by Silberman, drawing also on the historical notion of the "militia" as a citizen-based — not a government-based — self-defense entity, the Second Amendment must be held to guarantee to the individual citizen the right to possess those sorts of "arms" commonly and reasonably employed by a "citizen army"; namely, rifles and pistols. Importantly, however, the judge recognized in his opinion that the same reasoning underlying the conclusion that the amendment in fact guarantees an individual right to possess firearms, may — indeed should — be read to allow government to prohibit possession or restrict use of weapons not commonly or reasonably employed for self-defense. Thus, weapons employed collectively, as by a government armed service, such as cannon or other weapons of mass destruction, might properly be restricted.

Likewise, and also cognizant of the desire by many Supreme Court justices to find solid middle ground, Silberman's opinion recognized that government may also limit the manner in which an individual might exercise his or her inherent right to possess a firearm. Thus, for example, the "state" (that is, the "government") might restrict concealed carry of a firearm, as many states and the District of Columbia have done. However, if the government entity places such onerous restrictions on the exercise of the right as to render it meaningless — as the District of Columbia did with its draconian 1976 gun-control ordinance — then it has impermissibly deprived the citizenry of a right guaranteed in the Bill of Rights.

Whether one owns firearms or not — or ever intends to — the Silberman opinion in the D.C. gun-ban case should be a must-read for anyone wishing to understand what the Bill of Rights was, is and was intended to be. All who support the fast-disappearing freedoms guaranteed within its four corners should hope fervently that the Supreme Court of the United States will, before it adjourns next summer, render a similarly sound and supportive opinion in the case Silberman has so masterfully served up.

• Former congressman and U.S. Attorney Bob Barr practices law in Atlanta and is a board member of the National Rifle Association; www.bobbarr.org.

[neverdem]

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.”

[muawiyah]

If you were a Medieval Jew living in France you’d have known that “bear arms” had something to do with the right to SELF DEFENSE.

[Para-Ord.45]

THERE IS NO DEBATE ! Unless useless idiots, democrats aka socialists, marxists, communists don`t know how to read:

The people are not to be disarmed of their weapons. They are left in full possession of them. Zachariah Johnson, 3 Elliot,Debates at 646.

THE great object is that every man be armed. Everyone who is able might have a gun. Patrick Henry,3Elliot, Debates at 386.

“A FREE people ought... to be armed...” George Washington, speech of january 7, 1790 in Boston Independent Chronicle, January 14, 1790

“THE best we can hope for concerning the people at large is that they be properly armed” Alexander Hamilton, The Federalist Papers at 184-8.

“ARMS in the hands of citizens (may) be used at individual discretion... in private self defence... “-John Adams’A defense of the Constitutions of the Government of the USA’ 471 (1788).

“NO Free man shall EVER be debarred the use of arms”- Thomas Jefferson’ Proposal Virginia Constitution’ 1 T.J. Papers’ 334 (C.J. Boyd, Ed., 1950)

“A MILITIA, when properly formed, are in fact THE PEOPLE THEMSELVES... & include ALL men capable of bearing arms”. -Richard Henry Lee, Additional Letters from the federal Farmer (1788) at 169.

“I ASK, sir, what is the militia? It is the WHOLE PEOPLE, except for a few public officials” -George Mason, 3 Elliot, Debates at 425-426.

“THE Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms”. Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts,86-87.

[Eastbound]

" . . . solid middle ground, . . . "

Anything you can carry or drag around and fire without killing yourself or an innocent bystander would be a good starting point. But I can be persuaded to use a wheel-barrow for something larger.

It would depend, of course, on what someone is aiming at me.

[Ken H]

Justice Thomas on the Second Amendment:

Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries º1890, p. 746 (1833).

--J. Thomas in Printz v. U.S., 521 U.S. 898 (1997)

Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.

--J. Thomas in Printz v. U.S., Footnote 2.

[TheEaglehasLanded]

bttt

[Jack Hammer]

“Importantly, however, the judge recognized in his opinion that the same reasoning underlying the conclusion that the amendment in fact guarantees an individual right to possess firearms, may — indeed should — be read to allow government to prohibit possession or restrict use of weapons not commonly or reasonably employed for self-defense.”

That’s nice; however, the Second Amendment has only peripherally to do with self-defense, as it does with hunting - another oft-cited use of firearms in this context. In fact, the Second Amendment was included as the cornerstone in a well-designed system of checks and balances on the power of government, in order that citizens might have the capacity to resist tyranny - which has been historically a constantly recurring fact of political life. As such, restricting civilian ownership of firearms is less akin to crying “Fire” in a crowded movie theater, and more akin to restricting the publication of news and critiques of government activities - something for which the First Amendment was specifically intended.

[EBH]

in order that citizens might have the capacity to resist tyranny

The court needs to tread lightly lest they be reminded of the other ...Do Not Tread on Me.

[iopscusa]

EXACTLY RIGHT: The 2nd Amendment is the CORNERSTONE in a well-designed system of checks and balances on the power of government, in order that citizens might have the capacity to RESIST TYRANNY which has been historically a constantly recurring fact of political life.

[MileHi]

That’s nice; however, the Second Amendment has only peripherally to do with self-defense, as it does with hunting - another oft-cited use of firearms in this context. In fact, the Second Amendment was included as the cornerstone in a well-designed system of checks and balances on the power of government, in order that citizens might have the capacity to resist tyranny - which has been historically a constantly recurring fact of political life. As such, restricting civilian ownership of firearms is less akin to crying “Fire” in a crowded movie theater, and more akin to restricting the publication of news and critiques of government activities - something for which the First Amendment was specifically intended.

That nails the issue quite nicely.

[Gilbo_3]

Since its adoption as part of the Bill of Rights in 1791 relentless assault by socialists began in the early twentieth century, the Second Amendment has generated controversy far beyond its short, 27-word length.

Between that and the damn 'fire' analogy, bob pretty much wasted newsprint instead of posing a good argument imo...

[PapaBear3625]

Anything you can carry or drag around and fire without killing yourself or an innocent bystander would be a good starting point. But I can be persuaded to use a wheel-barrow for something larger.

How about this: any weapon or device that any law enforcement officer of any type may have available for use against citizens of the United States, should be available for purchase by citizens of the United States. Conversely, any device or weapon barred to citizens of the US should not be permitted to any law enforcement officer (including SWAT, FBI, BATFE, DEA, etc, etc)

The reasoning being that private citizens also have the threat of criminals and rioters, and should have similar arms

[muawiyah]

Falsely crying “fire” ~ if, in fact, there’s a fire you’d want someone to sound the warning.

[sam_paine]

the Second Amendment was included as the cornerstone in a well-designed system of checks and balances on the power of government, in order that citizens might have the capacity to resist tyranny - which has been historically a constantly recurring fact of political life.

The USSC must either rule that it is an individual right, or a collective right of 'militia.'

The argument that either is to be a check on tyranny precludes the allowance that the (oppressive) government be able to inhibit private (individual or militia) ownership of F16s and Howitzers on par with the standing Army they'd have to fight.

So whether or not they rule individual or collective has little bearing on whether firearms are a check on power.

What we most fear, that the USSC will rule that only "well regulated militia" can bear arms might not be that bad after all. If some individual states turn around and declare that their residents with valid drivers licenses (or whatever) are all members of the State Militia, then you're back where we are today....provided you don't live in Massachussetts.

For example this group's volunteer membership, distinct from the ANG and Reserves, could be expanded overnight....

ABOUT US

The Texas State Guard is a Volunteer State Military Force which assists and augments Texas Civil Authorities in times of Texas State Emergencies and in On-Going Support of Local Communities. The Texas State Guard consists of 6 Regiments, The Texas State Guard Air Wing, The Medical Reserve Corps, and the Naval Regiment.

Our Volunteers, similar to not for profit organizations, receive no compensation for their time, simply, the satisfaction from helping others in need. Hence, our motto; “Texans Serving Texas”

Our organizational structure is modeled after the Active Military forces structure, with position ranks, protocols, and authorities. In addition, our volunteers wear military uniforms when conducting activities for the Texas State Guard.

We have Texas State Guard components throughout the State of Texas that provide the following services in times of emergency;

•Shelter Management •Shelter Control •Shelter Operations •Medical Services (Doctors Nurses, Paramedics) •Assists local authorities in mass feedings •Volunteer Coordination •Legal Support (Attorney’s and Paralegals) •Communications •Chaplain Services

[DuncanWaring]

IBrp.

[beltfed308]

Bump! Don’t feed the troll!

[neverdem]

What we most fear, that the USSC will rule that only "well regulated militia" can bear arms might not be that bad after all. If some individual states turn around and declare that their residents with valid drivers licenses (or whatever) are all members of the State Militia, then you're back where we are today....provided you don't live in Massachussetts.

IMHO, without the consent of the governed, some folks are more trouble than they are worth as members of a militia. That does not negate the value of the Second Amendment.

[quant5]

That’s a great way to codify this for all time and put the debate to bed.

[Eastbound]

"The reasoning being that private citizens also have the threat of criminals and rioters, and should have similar arms"

I think that' an excellent idea! After all, the point is to save innocent lives. Ours in particular. Our right to live is greater than a criminal's who has forfeited that right by planning to murder someone. Who's life is more valuable to society?

A lot of gun laws are going to have to be taken off the books very quickly when the supreme's tell their folks gun laws are illegal. We already know and have always known, so we don't have to be told.

[ZULU]

Giuliani had cited the Silberman decision in the debate last night when asked about the Second Amendment.

I haven;t read it, but if it says what Barr implies, its correct. All rights enumerated under the Bill of Rights are subject to some degree of control by the State. We may argue about the appropriateness and degree of that control, but there are few people who would state the First Amendment protect Slander or libel or that the Second permits you to own a nuclear bomb.