Skip to comments.George Allen: The Supreme Court will rule on gun rights
Posted on 03/08/2008 1:58:59 PM PST by neverdem
Do we the people have the individual right to own guns?
That is question before the U.S. Supreme Court on March 18 in the case of District of Columbia v. Heller. This case directly challenges the District of Columbias ban on handguns. In 1976, D.C. officials imposed a strict gun-ban law to supposedly curb increasing gun violence. But security guard Dick Anthony Heller believes he has a right to keep a handgun in his home and filed a lawsuit against the District. U.S. courts so far have agreed with Heller and ruled that the Second Amendment protects an individual right to keep and bear arms for such activities as hunting and self-defense. D.C. officials have appealed the decision to the Supreme Court.
Heller is the first pure Second Amendment case the U.S. Supreme Court has heard since the landmark United States v. Miller case in 1939. In that case, the court foundperhaps because Miller himself was not represented in the courtthat there was no evidence that the defendant's possession of a short-barreled shotgun was related to the purposes of the Second Amendment. Unfortunately, the Miller decision has been misinterpreted by lower courts as indicating that Second Amendment rights are not meant for individuals but for State militias such as the National Guard.
D.C. Mayor Adrian M. Fenty believes that only more violence will ensue if the Heller ruling is upheld. However, guns do not kill or rob people; criminals do. Criminals intent on misusing firearms and committing violent crimes such as murder, rape or robbery simply ignore such gun-free zones and are free to assault undefended people. Violent criminals prefer their victims to be unarmed. We have seen this throughout the country; D.C. presents daily examples of this criminal behavior.
In Virginia, when we abolished the lenient, dishonest parole system, we rejected the holy criminal apologists views; we sentenced violent criminals to longer terms. A government can lock up all the guns, but if criminals are loose, we are not safe. Rather than take away the right of law-abiding citizens to protect themselves, their families and their property, the government has a primary responsibility to protect citizens from criminals.
The results of the two competing philosophies are clear and instructive. The District of Columbia, with its gun ban, continues to have high crime rates. Its law-abiding citizens and visitors have been prohibited from possessing firearms the past several decades and crime-ridden D.C. is surely not the model of a safe place. Across the Potomac River in Virginia, during my service as Governor, we passed a concealed carry law and abolished parole resulting in dramatic increases in time served for violent felons. Since 1995, the violent crime rate in Virginia has declined by nearly 23 percent. The murder rate is down by 30 percent and the forcible rape rate has dropped by more than 15 percent. This is a logical result when one realizes that most crimes were being committed by criminals, not guns.
By referring to our history and secession from the British Monarchy, we can be enlightened on one of the reasons for inclusion of the right to bear arms in the Bill of Rights. The British tried to disarm the colonists, forced them to pay for the established Church and quartered the Kings soldiers among the colonists. Indeed, the Bill of Rights protects the peoples freedom of religion, assembly, and expression; citizens have to right to petition their government, to have due process and to bear arms. The Bill of Rights also provides other individual protections against taking of property, cruel and unusual punishment, and quartering of troops. On the basis of this historical context, it is therefore logical that a government prohibition against a law-abiding citizen who owns and possesses a handgun is a preposterous, clearly unconstitutional infringement of that natural and fundamental right to self-defense.
In correspondence with John Cartwright in 1824, Thomas Jefferson noted that power is inherent in the people and that it is their right and duty to be at all times armed. Second Amendment rights are inalienable and essential to personal self-defense. Let us hope that the Justices of the U.S. Supreme Court will read our history and properly allow our reasonable freedoms to endure.
The foundational principles of the Bill of Rights should truly continue to apply in the United States of America.
-George Allen, former Governor and Senator of Virginia, is currently the President of George Allen Strategies and serves as the Reagan Ranch Presidential Scholar. To learn more, visit www.georgeallen.com.
PDF link from the American Civil Rights Union's smackdown of the brief from the Solicitor General and affirmation of an individual right.
Nothing will change except that cities / states where ownership or carry is banned will add to their bank accounts the revenue collected in license fees, registration and permits as they rent us our 2nd amendment rights.
This case is so much sh*t’n shineola........just my opinion of course. !
Stay Safe Doc !
Will this have an impact on the decision,,?
Montanans Insist on Gun Rights
Both lower courts have up-held right to carry. It is the government going against the will of the people fighting this in court.
There are way too many drunk drivers out there and people are dying all of the time.
The only thing to do is ban cars for everyone.
That will stop all automobile deaths...
One more time:
I wish. The D.C. District Court summarily dismissed Parker et al. The D.C. Circuit(Appellate) Court reversed the D.C. District Court on appeal upholding an individual right. Only the Fifth Circuit Court upholds an individual right, but that is just in dicta, IIRC, the case, Emerson, was remanded to the District Court. All the other Circuit Courts say the Second Amendment is just a collective right for the purpose of state militias.
Thanks for the link.
Ban crime, works every time!
To begin with, D.C. has seemingly fallen into the trap of presentism, evidently fantasizing America's 18th and 19th century pioneers reaching for their cell phones to dial 911 when vandals invaded their properties.
Next, the "bad news" for pro-gun rights people. The USSC decided in Barron v. Baltimore, 1833, a state land grab case claiming 5th A. protections, that unless explicitly stated, the federal Constitution's general restraints on government power applied only to the federal government, not to the states. So the 2nd A.'s government restraint that the right to keep and bear arms shall not be infringed was arguably a restraint only on the federal government, not the states. The states had seemingly reserved the power to infringe on gun rights for themselves even if they forbade the federal government from doing so.
Also, note that in the time between Barron v. Baltimore and the Civil War that word about the scope of the federal Constitution was evidently not getting around. This is reflected by the fact that some federal legislators at the time of the making of the post Civil War 14th A. thought that the federal BoR had always applied to the states as well, Sec. 1 of the 14th A. being a waste of Bingham's time.
Now for the good news for pro-gun rights people. Regardless what the scope and purpose of the Founders was for the 2nd A., the makers of the 14th A. essentially redefined the scope and purpose of the 2nd A., seemingly inadvertently.
More specifically, 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. applied to the states. (Bingham had expressed dismay that the USSC had decided in Barron v. Baltimore that the BoR didn't apply to the states as well.)
See the 2nd A. in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record. This is one of Bingham's discussions about the scope and purpose of the 14th A. after that amendment had been ratified.
So remember to get your guns out whenever you hear a discussion of the 2nd A. where the 14th A. is not also mentioned.
As a side note concerning Bingham's inclusion of the 2nd A. when clarifying the 14th A., consider the following words of Jefferson.
"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:59
There are people out there who believe that. Many of them are in the planning community, busy designing all kinds of connecting trails to let people walk to public transportation, when they get around to trying to ban cars...
Sen. Allen makes a good case, but he put the cause of action backwards.
You don't ask the Supreme Court whether the People have a right, you tell them.
Laurence Tribe and Alan Dershowitz, no paleoconservatives they, have both addressed the issue and come to the same conclusion, viz., that 14A binds 2A to the States, and that the 2nd does indeed confer an individual right by its own terms, but absolutely indestructibly when considered further in the light of the 14th.
To arrive at this finding, the Court will have to overturn Presser vs. Illinois, the foundation of modern gun-control laws, and with it the despised 1939 Miller decision.
The Administration brief in the D.C. case, as in its pleading in Emerson previously, attempts to preserve all federal firearms laws in the teeth of their unconstitutionality. The Administration asks SCOTUS on the one hand to find an individual right, and on the other to proceed as if they were not dealing with a right at all.
“Next, the “bad news” for pro-gun rights people. The USSC decided in Barron v. Baltimore, 1833, a state land grab case claiming 5th A. protections, that unless explicitly stated, the federal Constitution’s general restraints on government power applied only to the federal government, not to the states. So the 2nd A.’s government restraint that the right to keep and bear arms shall not be infringed was arguably a restraint only on the federal government, not the states. The states had seemingly reserved the power to infringe on gun rights for themselves even if they forbade the federal government from doing so.”
Doesn’t every state Constitution accept the fed constitution as governing law so the 2nd A still works?
Thanks for the comments & link.
This is all so damn confusing. However, with my crystal ball let me predict a very nasty '08:
The social fabric is coming apart at the seams. I've heard with my ears (screaming and 'f'-bombs being dropped in places one would least expect) and seen with my eyes (repo-ed cars on flatbed tow trucks- one which evoked a gang reaction in an area one would not expect) as well as being solicited recently to give money to tattooed individuals needing gas money. And there have been other signs as well.
This relates to the topic at hand by noting how ironic it is to be looking at an up-coming summer (maybe sooner) that could be explosive to the point where self-defense may depend on the 'people's' access to arms- while the courts twiddle their thumbs.
Recessions in the past have come and gone. This time, the combustible mix of malcontents, uneducated, thugs, gangsters, etc. may have serious ramifications. We'll know in two or three months, and if not by then, when the Clintons pull the rug out from under Obama, it'll be on.
Clauses 2 and 3 of Article VI of the federal Constitution requires all state officials to uphold the federal Constitution. But in the same breath, I'll say don't overlook the Founder's division of federal and state government powers reflected in the federal Constitution.
Indeed, as evidenced by your reply, confusion about the scope of the federal Constitution has existed possibly from the day that it was ratified to the present. But you're in good company. Even the late 19th century USSC has shown, in Presser v. Illinois 1886 for example, that it was possibly not aware of John Bingham's words about the 14th Amendment which had officially changed the scope and clarified the purpose of the federal Constitution's privileges and immunities.
Bear in mind that the states ratified the original part of the federal Constitution on the condition that they would be able to make a bill of rights for it; several states had their own bills of rights. When the federal BoR was later being drafted, James Madison officially proposed that the states be required to respect at least some of the privileges and immunities that were being incorporated into the federal BoR. It turns out that Madison's proposal was ignored. The states evidently wanted to be benevolent dictators for the people.
For further clarification of the division of federal and state powers that the Founding States incorporated into the Constitution, a concept which has been largely forgotten these days, consider the following. Politically correct interpretations of the Constitution aside, just because the 1st A. of the federal Constitution forbids the federal government from making laws pertaining to religion, speech, etc., doesn't mean that the states couldn't write laws to limit these basic freedoms. In fact, Jefferson noted that the states weren't bound by the 1st A.'s prohibition on certain powers of the federal government.
"3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgement by the US. of the freedom of religious opinions and exercises, & retained to themselves the right of protecting the same, as this state, by a law passed on the general demand of its citizens, had already protected them, from all human restraint or interference: ..." --Thomas Jefferson, Kentucky Resolutions, 1798. http://tinyurl.com/oozooSo Chief Justice Marshall who wrote the majority opinion in Barron v. Baltimore 1833, was evidently aware that the limited scope of the federal Constitution's privileges and immunities was not an oversight, even if John Bingham, the main author of Sec. 1 of the 14th A. was not. However, I agree with James Madison and John Bingham that the limited scope of federal privileges and immunities created an awkward situation.
Finally, let's compare the 2nd and 10th Amendments with Sec. 1 of the 15th Amendment, for example, to see how the Founders implemented their idea for determining the scope of government powers limited by the federal Constitution.
2nd Amendment: 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.Although the 2nd A. acknowledges the states, it doesn't explicitly prohibit a certain power to the states as required by the 10th A. and exemplified by the 15th Amendment. The 15th A. explicitly prohibits both federal and state governments from abridging voting privileges based on race.
10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
15th Amendment, Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
If Heller gets the Second Amendment affirmed as an individual right, then license, registration and permit fees come into the sight picture, at least for just owning for now. Carry privileges and fees will come later from both legislatures, like Alaska did and Wyoming tried, and litigation.
Dennis Hastert's seat lost in Special Election today It's always darkest before the dawn.
The Tragedy of the Democratic Party Cry me a river.
From time to time, Ill ping on noteworthy articles about politics, foreign and military affairs. FReepmail me if you want on or off my list.
P.S. Has any body figured out how to search for keywords or posters?
This demonstrates how tyranny operates.
The right of self defense is evident. A damn ant or spider or house mouse is born with that right.
But tyranny operates not by shifting the blame, but by shifting the enforcement. So if the judges decide “Oh, well, a modern interpretation means you get a gun only if we (or some of our minions) approve it...), then you can bet your ass that when you have a gun and they didn’t approve it, it WON’T be the judges who are there to take it away. It will be professional assassins.
Remember Ruby Ridge?
We rejected the “I was just following orders” at Nuremberg.
It’s not a great answer, but I’ve sometimes found using Google site search useful. Normal Google search, followed by site:freerepublic.com
BTTT! Thanks to all contributors. Fascinating.
Awkward, but I think this works:
That drop down box allows you to choose title/keyword/users/yahoo.
Don't know what yahoo does. Maybe it uses a yahoo search engine.
The SCOTUS can hand down a ruling, but they can’t effectively ban guns. Only SWAT teams can do that. We’ll be waiting.
They tell me I can’t own, carry etc due a criminal act on my part I accept that. They tell me I can’t own, carry ect due their criminal act I go into domestic enemy mode. Game on......firearms are mere accessories in my profession.
Thanks! I see it.
This is a logical result when one realizes that most crimes were being committed by criminals, not guns.
...irritates a bit. Most crimes? Governor, which crimes are guns responsible for?
OK, it's a quibble at best, but it shows just how far anti-gun argument has invaded. Even as we fight against it, we seemingly accept their assertions.
Another George Allen used to hold his hands less than a foot apart and say, “the difference between victory and defeat is this much.”
Thank you all for your response. I noticed the restored search functions for keywords and users.
I have always maintained that the hoopla surrounding SUVs and 4x4 vehicles has very little to do with gas guzzling and a lot more to do with being anti-gun and anti-hunter. To a moderate degree anti camping. Think of the plan ALGORE first posited in his original book way back from the 70's (forget the title but it played a role in the 2000 election) where he advocated banning the internal combustion engine and a forced movement of populations to coastal cities so that the interior of the nation could be returned to pristine wilderness. I kid you not. Now bear with me and think about this 'cause it could lead into the fringes of areas lined with some ummmm tin foil.
The ELF terrorists blow up Hummer Dealerships allegedly because of their anti-green resource guzzling elements. Many legislators are upping the mpg requirements way beyond what is possible for 4x4s to actually go off road. Without 4x4 capability two things can be accomplished.
First: A lot of hunters will be unable to reach hunting grounds safely in inclement weather or in rural areas where terrain is more extreme than usual. It will also severely impact folks who own hunting camps for a living as well as professional guides (a small percentage perhaps, but we're still talking livelihoods) and all the ancillary industries that support recreational hunting. THAT is a huge statistic, not that the communists & globalists that are pushing such plans even care. If there is no way to get to the hunting area and no way to haul the game home then there is no more need for "sporting use" firearms. Suddenly that bolt action scoped rifle is a true sniper rifle and must be banned. The shotguns will be wmd's and banned. Handguns suitable for hunting will go just as easy and small handguns for self defense will then be even easier. Especially in that political climate.
Second: Consider the need for a government in an emergency or perhaps catastrophic situation to control movement. How is this accomplished? Over the short term, like 911 you can simply ground everybody. No vehicles on the roads except military or police. Martial law. In the long term, folks have to drive. Work, school, grocery, etc. How then will a government entity control the movement of a population for a long period of time? Roadblocks. Checkpoints. Think USSR old school. A lot of folks will wonder about the ability of any government to regulate the GO-zillion miles of secondary roads and the obvious answer to many will be "no." But that's for personnel. But if you wanted to prevent passenger vehicles from traveling between cities or townships (in rural areas) then it's a pretty small matter of cratering these roads in such a manner as to create permanent obstacles to passenger cars. It can be done with civilian road equipment or a small application of explosives. That might take some time but it's doable over the long haul.
The publics options in getting around such restrictions? Horseback. Motorcycles (requires skill beyond most folks abilities) and .... you guessed it .... 4x4 vehicles. With very little training (certainly a part of every truck owners normal abilities if he uses his 4x4 for real) anybody can take something like H2, H3, Range Rover, or Ford Explorer (you can name any vehicle you wish, but you get the idea) anywhere cross country and roads really aren't all that necessary. They would certainly make easy detours around blocked secondary roads. In such freedoms lay the roots of an insurgency.
Americans are sheep, mostly. Sure there are sheepdogs but we are vastly outnumbered by the wolves. If you don't understand these references there is an essay you MUST read: "People: Sheep, wolves and sheepdogs" and you will truly be enlightened.
Understanding the sheep nature of the vast majority of Americans (the fault lies in the propaganda of the educational system) and that the likes of the WWII generation are forever gone then you can see how easy it could be to establish total control over the nation. We've been prepped to accept exactly these circumstances for a century and actively so since the 1960's. Via education, legislation and the Democratic Party's nanny state.
The agenda has been very careful to be advanced in tiny increments. The groundwork was accomplished over generations via education and media. The pressure was ramped up over the threats presented by a variety of crisis situations, like the cold war. That was something with global implications that affected the whole world. When that went away (mostly but now resurgent) the great majority of communists and their masters in the globalist movement were lost and found shelter with the other nutcakes in the extremist environmental groups. These have always been funded by communist groups but now get a lot of funding from NGOs in the United Nations and groups funded by George Soros and Ted Turner etc. A lot of the Hollywood set give mega bucks to these groups all the time. I don't even know if they're aware of the real agenda for the long term. Maybe.
The environmental movement provides a whole plethora of "causes" to save the planet. That is what the agenda requires. An imminent danger to the whole planet caused by man's stupidity that can be changed IF man is willing to change. By this it means major, sweeping and immediate societal changes.
This is what folks like Dianne Feinstein are talking about (Hillary and Obama, too) when they mutter to the media that we're all going to have to surrender some minor constitutional liberties. Look at the European Union and take a gander at the proposed North American Union (a work literally in progress) and glimpse our near term future. Because believe you me, it all ties in together. As it continues to progress, more and more folks will either be shutting up about tin foil people or buying a supply of their own.
Care to summarize this for the layman?
I speak, read and write English better than 95% of the people in this country, but here goes:
I don't care what SCOTUS decides. I can read what the Founders of this great nation wrote, and enshrined in the BOR. So be advised, I am armed, trained and have the will and means to move forward no matter what the decision.
Thanks for the ping!
However, talk is cheap. I would have thought that most of them good ol boys down in the area of the Big Easy aka New Orleans would have let the lead fly over that atrocity against the BOR after Hurricane Katrina. Yet they didn't. Why? It's easy to lay your own skin on the line, especially if you live alone and are childless. But when they (whomever "they" might be) come for your guns it won't be at high noon with a lot of pomp and circumstance. It'll be a "no-knock" raid at 0300 HRS and they'll come in hard. Are you willing to sacrifice your wife and kids in the massacre sure to occur once you open fire? If you reply YES at once, you're lying and you haven't thought it thru.
It's really easy for folks like us to declare that When they finally DO get my guns they're going to be WARMER than me! In the next instant I have this image of the rest of my innocent family lying bullet riddled in pools of their own blood and I'm having all too natural second thoughts. So I can honestly say that until I'm faced with the exact moment in time, I don't really know what I'll do. However I do know what I'll be prepared to do. Uncertain outcomes do not negate complete preparations! As my students love to say: You feel me, dude?
Tribe is, unfortunately, rapidly backpedalling now - apparently not with any cogent explanation repudiating his prior position, but simply regurgiating the naieve collective view (veiled with an obligatory “oh, but it’s INDIVIDUAL”). Hints are his favorite law student - a certain B.H. Obama - may be seeking to return certain favors, involving a re-positioning on Heller.
I just like to say to them: “ I’m willing to die to protect the second amendment: are you willing to die trying to take it away from me?
Know what kind of response that practically guarantees? You say that kind of thing to a soldier and you're going to provoke a challenge you almost certainly can't win. You cannot stand against a "full on" military assault. Not even for a little while and they know it. Any combat veteran knows the power that can be brought to bear in a committed attack and they also know that the odds of one of them being seriously injured during the course of said action is extremely remote. So sure, say that and promptly sign your will. It's that simple.
The BEST that we can pray for in the case of an outright subversion of the Constitution (say in the case of a merger between USA, Canada & Mexico (the so called North American Union) is that certain factions inside the military and police will rebel, and take their skills and equipment with them to join in a revolution. That would take some time. In the short run, individuals will be sacrificed as examples so as to frighten the general public into submitting to global authority. Will it work? Sure it will. But you and YOURS will serve first as that bloody example. Maybe. I pray not.
Ah, but ... who is “Big Mack”?
Oh, we know the power that can be brought to bear on ... who? where?
Even if identified, is the collateral damage tolerable? We’re not talking strangers in a strange land, we’re talking your neighbors harmed for a political agenda. Razing a neighborhood to get a “FMCDH” type will stop awfully quick once the votes & tax money sources get outraged.
Oh, sure, the occupants of Waco and Ruby Ridge didn’t stand a chance. Most of ‘em didn’t make it; many who did regret it.
Yet ... that kind of overwhelming force was never applied again for another 15 years until NOLA/Katrina - and that came to a screeching halt when those who remembered reminded those who didn’t.
Is he one of, say, 18,000,000 deer hunters with, er, suitable equipment? Need I say more?
How about those not vocal enough to post publicly?
Are you familiar with the terms...
“Feed the hogs”?
Such raids won't occur in a vacuum. A law will have to be passed first, then be on hold a bit while challenged in court with a restraining order. Even without the court thing, you and the rest of us will have warning.
Knowing some of the people on this thread, the SWAT teams will find empty homes, or homes emptied of guns with genuine looking bill of sale for all firearms known by the BATF to be owned by those in the house. Oh, and those who order the SWAT into action will also probably have trouble sleeping, knowing that they and their families are also at risk.