Posted on 03/22/2008 12:02:27 AM PDT by neverdem
The U.S. Supreme Court should allow Dick Heller to keep a handgun in his home.
Dick Anthony Heller is a 66-year-old security guard who carries a handgun to protect the employees and property at the federal building where he works in Washington, D.C.
Because Heller also is a resident of the District of Columbia, he is prohibited from having a handgun in his home for self-protection.
Heller sued to overturn the city of Washington’s 1976 gun-control law that also requires all rifles or shotguns in D.C. homes to be disassembled or kept under trigger lock.
Heller sued claiming that the D.C. law violated his Second Amendment rights.
That amendment states: “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.”
The meaning of those 27 words, including how they are punctuated, has been argued, debated, cussed and discussed since the Bill of Rights was ratified on Dec. 15, 1791.
Actually, the wording of the Second Amendment was controversial and often changed from the time that founding father and leading Federalist James Madison proposed this compromise provision years earlier.
Struck down city gun law
To the surprise of many observers, Heller won his lawsuit before the U.S. Court of Appeals for the District of Columbia Circuit when that court struck down the city’s gun law. Previous decisions of a similar nature around the country had gone the other way.
Now it is up to the U.S. Supreme Court to decide whether Heller has a constitutional right to keep a handgun in his home, located only a mile away from the court.
No one knows what the justices will rule when the decision is announced a few months from now, but Justice Anthony M. Kennedy, who now is watched as the deciding swing vote on the divided court, appeared to side with Heller’s argument in saying, “In my view, there’s a general right to bear arms quite without reference to the militia either way.”
Over the years, gun control advocates, gun owner groups and constitutional scholars have debated the meaning of “militia,” “the People,” “keep and bear arms,” “bear arms,” “shall not be infringed” and the significance of the two clauses along with the many changes the amendment went through before it was finally adopted.
During the arguments involving Heller’s case, Justices Antonin Scalia and Samuel Alito Jr. appeared to support Kennedy’s assertion that there is a general right for the people to own guns aside from the reference to a well-regulated militia.
Although Justice Clarence Thomas didn’t tip his hand during the Heller arguments, he has previously indicated support for the idea that the Second Amendment protects individual rights to own guns.
Even if the court does decide that the amendment protects the individual rights of gun ownership, lawyers in support of the D.C. law still hope to prevail on the argument that the city has the right to ban “uniquely dangerous” weapons such as handguns that are used in much gun violence and criminal activity and can easily be taken into schools, buses and other public gathering places.
The 1934 National Firearms Act attempted to control such “uniquely dangerous” firearms as automatic-fire machine guns, short-barreled shotguns and rifles, silencers and other “gadget-type” firearms and accessories.
If the D.C. city council can decide its own definition of “uniquely dangerous” weapons, so could every other city and state, which potentially could restrict gun ownership to the point that all guns could be rendered useless for personal defense.
“If you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire?” Scalia asked the D.C. lawyers.
In essence, the D.C. law prevents citizens from using guns for self-defense. This is fine with many gun-control advocates.
Personally, I think Heller should be able to keep a handgun in his home for his protection.
Rowland Nethaway’s column appears Wednes- day and Friday. E-mail: RNethaway@wacotrib .com
As I have pointed out ad nauseum, there is no hard link between the two. Many individuals have the right to self defense, but do no have the right to self defense with a weapon. Prisoners, felons, illegal aliens, small children, the insane, foreign tourists, etc., ALL have the God-given inalienable right to self defense. Just not with a weapon.
Self defense with a weapon is a right that WE protect -- WE decide who may use a weapon, what weapon may be used, and under what circumstances it may be used. And that includes everything from a pointed stick to a machine gun.
"And the right to keep and bear arms, without a mention of self-defense is also meaningless."
When the Founders were discussing the second amendment, there was no mention of self defense. Justice Stevens saw none. If you have such a reference I'd like to see it.
"If the Supreme Court rules in Heller that there is no fundamental, individual right to self-defense, then we have wasted our time in pushing Heller."
There IS a fundamental, individual right to self defense. Not with a weapon, of course.
But if you're saying that the only victory you will accept is if the U.S. Supreme Court rules the second amendment protects a fundamental, individual right to self defense with any weapon you choose ... well, prepare to be disappointed.
You're getting far, far ahead of yourself and the Court. No decision has been rendered yet. And the Court has to become quite skeptical of adding more and more strictures to the word "arms" with no justification to do so.
And your statement that the Miller Court wasn't asked about a requirement for militia-membership is false. The prosecution's argument summary clearly contained the statement that only members of a militia should be protected. The Miller Court was free to establish that as the standard if they wished.
We have been over this ground before. You continue to state falsely that the NFA 34 is either Constitutional or unConstitutional without regard to the status of the person being affected by it. That is simply not true.
The Court is perfectly capable of permitting the enforcement of the NFA 34 with respect to some defendants and not others, just as in Miller they were able to permit prosecution with respect to some arms with no question whatever regarding the other arms included in the law.
And there is a fundamental, individual right to free speech. But not with an internet, of course.
You ought to sense the barrenness of your argument based on who it is who agrees with you.
Except in the courts.
Most of the gun control laws we live with were first passed in 1968.
Nonsense. There are still elements of the right that may have to be recognized, despite what I expect from Heller.
Why don't you entertain us with what the Founders would have to have written to accomplish what you describe as a possible victory?
We now know from your arguments that, "the right of the people to keep and bear arms", includes only people who were the militia and that "arms" includes only arms that the government decides are suitable for a militia".
How about this: "The right of all persons, except infants and prisoners or mental patients under custody, have a right to keep, bear, own, purchase, manufacture, sell, and trade arms of all kinds regardless of lethality or lack of specificity of target".
That's pretty airtight isn't it?
Get the landmark ruling, then chip away at the restrictions. When crime does not go up, people will be less concerned about the SCOTUS striking down these laws.
First things first though. If Scalia had said he read the lower court's opinion as allowing rocket launchers and machine guns then Breyer and the other lefties would have seized the moment to scare Kennedy. You don't want him to get spooked and back down.
It IS true. The U.S. Supreme Court could have taken the case and ruled that the tax stamp was constitutional. Could they not have?
In that case, Mr. Miller was guilty whether or not he was a Militia member. If Mr. Miller had purchased the stamp, he could have avoided the whole mess, could he not have? Did Mr. Miller have to be a Militia member to purchase a stamp? No.
Do you not understand the case and what law Mr. Miller violated? Did you think he was arrested for carrying a weapon that was only allowed for Militia meembers? Did you think he was arrested for carrying an illegal weapon?
That would make an excellent state law, which is where a law like that belongs.
The second amendment, however, was meant to protect something entirely different: the preservation of an entity necessary to the security of a free state -- the Militia.
many individuals have the right to free speech, but do not have the right to free speech with a press? ALL have the God-given inalienable right to free speech. Just not with a press (the term broadly including pen, movable type, printer, modem, TV, radio, internet, etc.).Free speech with mechanical assistance is a right that WE protect -- WE decide who may use a "press", what kind may be used, and under what circumstances it may be used. And that include everything from a pencil to satellite TV to blogging.
No, by your prolifically insisted definition, "we" won't be ready because "we" aren't the select few that the tyrranical federal government permitted into the militia and thus could be prohibited from owning anything.
Your right to free speech does not include the right to speak on The McLaughlin Group, that is correct. Not without his permission.
Lame evasion. Try again, or concede.
And what part of that do we not get people!?
Why do you say that? From the questions, it seems pretty clear that the judges realize that they can’t disallow categorical bans while allowing categorical bans - regardless of who was throwing which categorical ban under the bus to save another categorical ban.
Sure they could have. Instead they remanded with instructions go decide the case on the basis of the nature of the weapon alone. If Miller's possession of the weapon is protected, then he goes free. If not, Miller can be convicted.
The reason he would go free, would be that charging him with a crime for failing to pay a tax on his weapon would have violated HIS Constitutional right to keep and bear arms.
Thus, the effect of the Miller decision was that NFA 34 was Constitutional for some arms and unConstitutional for others, regardless of the militia membership of the person being charged.
So you say that the Second Amendment only protects the right of a state to form a militia? And there is no individual right to keep and bear arms protected by the Second Amendment?
How did you eliminate rifles?
And then what would stop the federal government from banning machine guns for militia use? The federal government is not constriained by state laws.
What's the problem?
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