The Second Amendment a second class right?

Enter Stage Right ^ | Jan 21, 2008 | Charles Bloomer

[Gunner9mm]

The Solicitor General has issued a truly bizarre amicus brief to the Supreme Court in the case of Heller vs. District of Columbia, the case that is challenging the District's ban on handguns.

The Solicitor General's Office represents the administration in cases before the Supreme Court and, as in this case, presents the administration's position. Needless to say, the Solicitor General's Office has considerable influence before the court.

The brief presented by the Solicitor General makes some valid points upon which Second Amendment supporters can agree. The brief states the administration's opinion that the right to keep and bear arms is an individual right, and that laws restricting that right should be subject to "strict scrutiny" – meaning that legislators must weigh the proposed benefit of the law carefully before infringing on a Constitutionally guaranteed right. Additionally, the brief expresses the opinion that the District of Columbia's strict gun ban should be overturned. So far, so good.

The Solicitor General's brief also takes a bizarre turn. While the Solicitor General calls for "strict scrutiny" for gun laws in general, he calls on the Supreme Court to apply only "intermediate scrutiny" as it determines Heller vs. DC. The Solicitor General also argues that the Second Amendment is not a "fundamental" right.

[Gunner9mm]

This column also available at www.libertycall.us under the 2nd Amendment section.

[Mach5]

It’s so second class that the Framers made it #2 on the list. Laughable.

[Robert357]

Maybe Gun Owners of America or some other group should also file comments on the Solicitor's comments about the Second Amendment being a non-fundamental right and remind folks of the language in the Declaration of Independence that state.....

"...whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."

[jonascord]

Just keep in mind that now that the Bush administration is a lame duck, that they can come out of the Closet, and tell us how they actually think. Isn’t it nice to know that Bush thinks the Constitution is more like guidelines than actual rules?

[Joe Brower]

[Joe Brower]

This thread has just added to the FreeRepublic "bang list" (firearms interest list) by adding the keyword "banglist".

Any time a firearms-related thread is created on FreeRepublic, please be sure to add the "banglist" keyword to it so that interested FReepers don't miss it. Just a suggestion.

Let Freedom Ring,

Click the pic to go to the Gun Facts v4.2 download page!

[Mariner]

This is truly about government power.

They are FREAKED at the thought of most, if not all of the existing state and Federal laws will be negated by the USSC.

It's likely the USSC will see SOME interest the government and the states have in this issue...and may, in fact, specifically narrow their decision to the DC case...and warn the feds and states they need another approach along guidelines xyz.

I just don't anticipate the USSC will rule that all existing gun law is unconstitutional.

[Montfort]

Well, the way it works is, the rights that the drafters of the Constitution specifically numbered, are second-class rights, except the right of the press to have free speech.

The recently discovered rights implied in penumbras and emanations are absolutely sacrosanct.

The only two rights that cannot be abridged, are the rights of the press to engage in political speech, and the right of privacy, which only covers sex acts and the abortion of children resulting from sex acts. The right of privacy does not extend to matters not involving sex. Your right to smoke can be abridged by anyone, but your right to engage in high-risk sex is sacrosanct.

[RasterMaster]

Nothing suprises me, coming from a group who thinks the words “Congress shall make no law” are subject to interpretation.

[Condor51]

...the Solicitor General's amicus brief for further review, research, and study. The Solicitor General's advisors and staff need to hit the books and review a significant concept that they have previously missed – The Constitution, and especially the Bill of Rights, are specific limits on government, limits adopted by the consent of the governed.

And in the process of re-educating themselves, they need to look up the definition of "shall not be infringed."

I'm going to give the Solicitor General and staff a litle help here on the 2nd Amendment - free of charge too.

The Second Amendment reads:
"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."

Okay let's break that down with some input from real Constitutional experts.

• A well regulated Militia,
  George Mason: "Who are the militia? They consist of the whole people, except a few public officers."

• being necessary to the security of a free State,
  Patrick Henry: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined...The great object is that every man be armed. Everyone who is able might have a gun.

• the right of the people to keep and bear Arms,
  Thomas Jefferson: "No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

• shall not be infringed.
  Samuel Adams: "The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
  

So there it is Mr Solicitor General. It can't get any simpler.

oops, almost forgot... You, yeah you 'public officers' like Senator Di-Fi and Schumer - you have NO RIGHT to own a gun, hand em in pronto. You have till midnight to disarm! (not sarcasm)

[Ancesthntr]

The recently discovered rights implied in penumbras and emanations are absolutely sacrosanct.

I think that Justice Thomas has a sign up in his office to the effect of "Don't emanate into the penumbra."

[Amendment10]

In case anybody missed this from previous posts, John Bingham, the main author of Sec. 1 of the 14th A., included the 2nd A. when he read the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. made mandatory for the states to respect. So whatever the intentions of the drafters of the 2nd A. was, there is no doubt in my mind that the 2nd A. now protects the personal right to keep and bear arms from both the federal and state governments as much as any other privilege and immunity protected by the federal Constitution protects other personal rights. Note the 2nd A. in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record.

http://tinyurl.com/y3ne4n

[foghornleghorn]

Agreed, it is unlikely that all gun laws would be evicerated. Remember the landmark “police power” case when during the San Francisco quake the police and firemen dynamited huge sections of the city to try to control the fires. The owners lost on their appeal for restitution. Here, public safety trumped property rights.

Having said that, the notion that the second ammendment is somehow inferior to others is pure hogwash. Every constitutional ammendment, along with the document itself, is black letter law of the land. The courts cannot (at least in a rational world) simply “interpret” away some, and support others. The law must be governed by logic or it becomes as arbitrary as Sharia.

[Filo]

THe question is this: How do we convince the President to force the revision of this brief?

[GingisK]

How do we convince the President to force the revision of this brief?

File impeachment basied upon violation of his oath of office?

[drypowder]

THe question is this: How do we convince the President to force the revision of this brief?

How ironic, this question goes directly to the purpose of the SECOND AMMENDMENT. And as the old saying goes, use it or lose it.

[TLI]

The Solicitor General also argues that the Second Amendment is not a "fundamental" right.

The Constitution is Not a “Living, Breathing Document”
Posted on January 18th, 2008
By Fred Thompson


This morning I heard that one of the other candidates commented that the Constitution is a “living, breathing document.”

Frankly, I assumed this came from Senator Clinton or Senator Obama. It is identical to what Al Gore said when he was running for President in 2000, when he said he would look for judges “who understand that our Constitution is a living, breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”

Imagine my surprise when I learned that this statement actually came from my opponent, Governor Huckabee, in an interview with CNN this morning. Now I know Governor Huckabee was talking about amending the Constitution, but I don’t think he understood that he was using code words that support judicial activism.

He does not appear to understand that reliance on the notion that the Constitution is a living, breathing document is precisely the kind of wrong-headed thinking about the Constitution that gave us Roe v. Wade, which legalized abortion across our nation, and Lawrence v. Texas, which decriminalized sodomy.

I do not believe the Constitution is a living, breathing document. I am committed to appointing strict constructionist judges to the bench if I am elected President, strict constructionists who believe the Constitution has a fixed meaning that can be applied to cases that come before the courts today. They do NOT believe the Constitution is a “living, breathing document,” whose meaning, constantly changing with the sifting sands of our culture, can be determined and applied by unelected judges.

I fear that this loose language about our Constitution calls into question Governor Huckabee’s appreciation and understanding of the issue of judicial activism and raises questions as to what kind of judges he would appoint were he to become President.

We Need FRED THOMPSOM for President.

[Filo]

How ironic, this question goes directly to the purpose of the SECOND AMMENDMENT. And as the old saying goes, use it or lose it.

You're right, but short of taking up arms (while keeping that, as always, as an option) how do we convince this President to correct the errors in this brief?

[Question_Assumptions]

Be sure to review some of the early drafts of the Bill of Rights for the context in which the Bill of Rights was produced.

[William Tell]

Filo said: "THe question is this: How do we convince the President to force the revision of this brief?"

The "shot heard round the world" was fired in Boston to prevent the government from confiscating the arms of the people of Lexington and Concord. To suggest that the protection of the right of those citizens was unchanged by the Revolution and the ratification of the Constitution and the Second Amendment is an insult to the memories of those who died in the pursuit of freedom.

I wrote a snail mail letter to both Bush and Clement. I recommend that everyone should do so. They should need large trucks to deliver such mail.

[Blood of Tyrants]

It is no longer a right if the government can limit it with “a good enough reason”.

[blackie]

GWB really dropped the ball on this!!

[Dead Corpse]

meaning that legislators must weigh the proposed benefit of the law carefully before realizing the the Amendment says "shall not be infringed" and not infringing on a Constitutionally guaranteed right.

Fixed it.

Gettin' closer to Claire Time...

[longtermmemmory]

I think this case is going to turn on how much black robe fever dominates the court.

This is not about second amendment, this is about government restrictions on individuals period.

Property ownership, property of person, property of thought, all hinge on the second and all contrary to the interests in institutionalized elites.

[SIDENET]

GWB really dropped the ball on this!!

I'm SHOCKED.

[45Auto]

Al governments tend toward tyranny. That’s what the 2nd was all about in the beginning and that’s what it’s about today. The government of the US can and has taken away all the so-called “rights” that are part of the Constitution at one time or the other, including the MSM’s sacrosanct “right of free speech.” The media SOB’s should really take notice of that when they criticize the RKBA. Campaign Finance Reform showed us that. That law should also have opened our eyes to the fact that its not only the RAT-bastard party that will take away rights when it suits their purposes. And we shouldn’t put too much faith in the US SC either - Kelo should have taught us that. The question is how much BS are we going to take before we act? My answer is - a heck of a lot since we all have more to lose than to gain by another year like 1776. It will take something like the depredations of government on a par with those that preceeded the Romanian Revolution of 1989. The thing about the latter is that it should have been instructive to politicians everywhere that it can still happen.

[coloradan]

Dropped? More like kicked an own goal.

[mommadooo3]

Our 2nd Amendment is the ‘teeth’ of the Constitution.

[Godebert]

---How do we convince the President to force the revision of this brief?---

"File impeachment basied upon violation of his oath of office?"

He's already violated his oath of office several times.....including when he signed McCain/Fiengold.

[Waco]

Leave the 2nd alone, you gotta admit it’s very effective at smoking out sh-theads and traitors.

[mommadooo3]

PLEASE excuse my blondeness.(it's been a few years since I last FReeped,and now can't remember how to do it) But, here is a blast from our past. Deals with gun control.

http://www.freerepublic.com/forum/a387a442a3991.htm

[Lurker]

Clickable link now.

L

[mommadooo3]

THANK YOU!!!!! It’s gonna take me a little while to get back up to speed. LOL!

[blackie]

Round up the usual suspects. *sigh*

[Waco]

It’s good to have one of the amendments be as polarizing as the 2nd is. Million$ of $ have been raised both pro & con and like I just said, it’s very effective at smoking out sh-theads and traitors. Keep it up boys!

[Leftism is Mentally Deranged]

Hillary will take this right away, if her royal highness becomes president.

[blackie]

Maybe it’s his payback to conservatives for not backing: his open border policy, or his sucking up with Teddy The swimmer, him saying Islam is a religion of peace, adnausium....

[paul51]

One needn't be a lawyer to recognize the esoteric nonsense in the Solicitor General's argument.

Let's hope the supremes agree

[Barnacle]

Isn’t it nice to know that Bush thinks the Constitution is more like guidelines than actual rules?

I voted for a Bush, and all I got was a lousy weed.

[Barnacle]

Hillary will take this right away, if her royal highness becomes president.

She won't be... At least not according to my careful and exacting analysis - also known as a guess. I think she will be VP candidate with Obama, and Romney will become our next President. I'm not a Romney supporter, but I do think that's the way things will play out.

[Barnacle]

Whatever you say Newbee.

Waco
Since Dec 18, 1997

?;^T

[budwiesest]

Needless to say, the Solicitor General's Office has considerable influence before the court.

It should be subordinate to the language in the Constitution. Otherwise, it invites politicization. And that's a bad thing.

[budwiesest]

Thanks again Joe, for all that you do. Yours is the most important ping list for Americans ( a unique tribe, though they may not realize/appreciate it). Every other pales in comparison.

Thanks again.

[El Gato]

Maybe Gun Owners of America or some other group should also file comments on the Solicitor's comments about the Second Amendment being a non-fundamental right

Likely several amici briefs for Heller, perhaps plus Heller's own brief, will address the matter. Those aren't due until Feb. 4th.

[El Gato]

They are FREAKED at the thought of most, if not all of the existing state and Federal laws will be negated by the USSC.

Indeed they are. Panicked might be a more accurate word. You can smell the fear in the government's brief, the amici brief of Janet Reno et al, and the brief of DC. The former two reek of it.

and may, in fact, specifically narrow their decision to the DC case...

That's exactly what they said they will do when they specified the question:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other fire-arms for private use in their homes?

and warn the feds and states they need another approach along guidelines xyz.

There's the rub. What sort of xyz will they say is "reasonble". The US government wants: "heightened judicial scrutiny" an a "more flexible standard of review" apparently not so heightened and flexibile enough that all current and past federal gun control laws would sail easily above the standard and slip past the flexible standard.

I just don't anticipate the USSC will rule that all existing gun law is unconstitutional.

Of course they won't, even though it is, and if the standard the Circuit court applied were left standing, very few, if any, federal gun control laws would pass muster. But what they will do is give a rational for their answer to the question above. If the answer is the same as the Circuit court's, then every or alsmot every federal gun control law is doomed, it just has to wait it's day in court, where Heller will be used as precident to drive a stake in it's heart. If the SC rules as the US government wishes, we'll at have an aknowledgement that the second amendment protects an individual right, but one which can be infringed for almost any governmental purpose. If, OTOH, the SC goes with DC and Janet Reno et al, well have a "right of the people" that does not protect an individual right at all.

[El Gato]

You're right, but short of taking up arms (while keeping that, as always, as an option) how do we convince this President to correct the errors in this brief?

Unless they would file an amici brief for Heller, supporting the DC Circuit's ruling, it's too late, briefs for the petitioner, that is DC, are closed. They aren't going to do that, because as they admit in their brief, that would be the thread that once pulled would lead to the striking down of almost all federal gun control laws, save perhaps "felon in possession" and even more likely bans on carry in federal buildings, military bases, etc, but not National Parks.

[El Gato]

Our 2nd Amendment is the ‘teeth’ of the Constitution.

I prefer to think of it as the "Reset Button", see tag line.

[mr_hammer]

“...is more like guidelines than actual rules”

Sounds like the Code, Pirates that is...

[Centurion2000]

I don't think FREAKED is strong enough language for this. For 65 years the government has been duciking this issue, refusing to explain it in clear language, and repeatedly passed more unConstitutional laws in an attempt to disarm us. Meanwhile, law abiding gun owners have been patient, exercised incredible restraint and paid up by law.

If they rule in our favor, we realize that there is still a little room left in the system to work within it.

If they rule completely against it, they've tipped their hand saying that the Constitution is just a piece of paper and that nothing short of armed rebellion will ever fix it.

This ruling is THAT important.

[jonascord]

You will also note that the media, the candidates, both Houses, every State and Local government body and the Bush Administration are all loathe to admit that Heller Vs DC even exists. Are we the only ones watching the radar?