Supreme Court Confronts the ‘Right to Bear Arms’
by Stephen P. Halbrook | View comments |
Print This PostPosted on 04/05/2008 12:22:48 PM PDT by K-oneTexas
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The D.C. gun ban is in big trouble. “That would be an odd ‘right of the people’ if limited to militias,” commented Chief Justice John Roberts in the Supreme Court hearing March 18 in District of Columbia v. Heller.
The case concerns whether the District of Columbia’s ban on handguns violates the Second Amendment guarantee that “the right of the people to keep and bear arms, shall not be infringed.”
Referring to the American Revolution, Justice Antonin Scalia noted that “tyrants took away the people’s weapons, not just those of the militia.”
For the American settlers, Justice Anthony Kennedy added, “Wasn’t there a need for self defense against Indian attacks, robbers, wolves and grizzlies?”
In recent years, Kennedy is the swing vote in close cases.
The founders were not concerned with personal protection, insisted Walter Dellinger — solicitor general during the Clinton Administration, and now arguing for D.C. — but only with “bearing arms” in the militia.
“Does the amendment have any effect today?” queried Justice Ruth Bader Ginsburg.
“Only if a federal law restrained state militias,” Dellinger responded.
So this “right of the people” has shriveled into a meaningless gesture exercised only by permission of the government. But the “exclusively militia” interpretation is only a facade. Those who deny this right of the people would be equally opposed to a robust state militia system in conflict with federal authority.
The text of the Constitution already had a militia clause. As Kennedy noted, the preamble to the Second Amendment — “a well regulated militia, being necessary to the security of a free state” — supplemented that clause. “My view is that the amendment guarantees a general right to bear arms without reference to the militia.”
And Scalia added that historically, English bans had been imposed on possession of arms by oppressed groups, such as Roman Catholics and Scottish Highlanders.
Which “arms” are constitutionally protected? One test is whether the arms are of a type “commonly possessed” by the people.
Dellinger tried to scare the court away from sanctioning handguns under this test, on the basis that it would also sanction machine guns, of which more than 100,000 are registered with the feds. Not an impressive number, given our population of 300 million.
Solicitor General Paul Clement argued, on behalf of the United States, that the right is individual, but that the court should not decide whether the D.C. ban is unconstitutional.
This “just don’t know” attitude may be explained by fears that the Justice Department’s prosecutions of citizens under this very ban for 30 years might be reopened.
Clement also worried that voiding the ban would question restrictions on machine guns and armor-piercing ammo, but Chief Justice Roberts reminded him that the only issue is handguns.
Justice David Souter found “keep and bear” to be a unitary concept “what is served by bear, if you can keep?” He quipped that “you do not bear arms to hunt; no one in the 18th century talked that way.”
“Keeping” refers to possession in the home, Clement responded, and “bearing,” to carry.
Jefferson sponsored legislation specifically referring to “bearing a gun” while hunting.
Alan Gura presented the case for Dick Heller, the court security guard who lives in Washington, D.C. and protects judges with a handgun by day, but is not trusted with having one when he goes home.
Justice Stephen Breyer queried how handguns had a militia purpose, and why was it not reasonable to ban them, given the high murder rate?
“The handgun ban,” Gura responded, “weakens military preparedness.”
Some seemed ready to scrap a militia arms test. “The second clause of the Second Amendment,” insisted Scalia, “goes beyond the militia — it is a right of the people. Why not acknowledge that?”
Kennedy stated that a machine gun is more related to the militia than the handgun, but the latter is relevant to the homeowner.
Stevens asserted that “only” two of the original states, Pennsylvania and Vermont, had arms guarantees referring to self-defense, and “all the others were for common defense.”
Yet only two other states — North Carolina and Massachusetts — had an arms guarantee, and both accorded the right to “the people,” even though they referred to common defense purposes. As Gura pointed out, those provisions were interpreted to recognize self-defense.
As is usual, the justices engaged in their own fencing match.
“Look at the murder rate, the crime statistics,” anguished Souter.
“All the more reason to allow homeowners to have handguns,” implored Scalia.
Long guns, even though they must be trigger-locked and unloaded, would do fine for home defense, Dellinger insisted as the last word. He could remove the lock in three seconds, albeit in daylight.
“And how long if you’re awakened at 3 a.m. and you reach for the lamp and your reading glasses?” Scalia asked, to general laughter.
Justice Clarence Thomas asked no questions. But a decade ago, in Printz v. U.S., he wrote an opinion appearing to favor the individual-rights view.
Looks like the Supreme Court is finally ready to recognize the Second Amendment as a real part of the Bill of Rights, and that D.C.’s ban is in big trouble.
“So this “right of the people” has shriveled into a meaningless gesture exercised only by permission of the government. But the “exclusively militia” interpretation is only a facade. Those who deny this right of the people would be equally opposed to a robust state militia system in conflict with federal authority. “
And that is what this is all about: Communists who want total control over the people for their own greedy self interests.
PDF format--91 pages.
Click "oral arguments", then "argument transcripts".
Unfortunately, I highly doubt it. The "fix" has been in on this case from the beginning when the Supremes' decided to take it. The few judges who understand the Constitution will vote to let the lower court's ruling stand, but the majority (6) will vote to overturn it "if they know what's good for them" as I'm sure the threat has been made to the lib judges from the Democrat leaders.
It will be a 6 to 3 vote to overturn the lower courts decision and before the final words of the ruling have been broadcast, new laws across the country will be on their way to state house of reps to ban virtually all guns and make criminals out of the citizens.
The SS wing of the Dems (a.k.a. the BATF) will be ready to scoop up all the gun dealer books and make their plans to either "Waco" thousands of American citizens and/or pass the lists to the IRS to force people to "turn them in" or face having their assets and incomes confiscated through fines and then the subsequent jail time.
America's gun owners will be demonized as "domestic terrorists" in a 24/7 media blitz to the point that non-gun owner citizens will cheer when a family is wiped out the BATF for not turning over their Ruger 10/22 ASSUALT RIFLE.
The "Use it, or loose it" time is fast approaching. Private gun ownership and the new socialist world order can not coexist and the Dems and RINO's will do what it takes to eradicate their last obstacle to victory.
Not just commies—but mainstream politicians want gun control though they may not say so.
Any constitutional scholar worth his salt knows the founders inserted the 2nd Amendment,putting special emphasis on the “peoples’ right to keep and bear arms,” so as to prevent the country returning to the tyranny of King George.Though we are mainly a Republic,the framers saw fit to put the enforcement of liberty in the hands of Democracy—a most singular experiment in world history.
Therein lies the tangle for the powers that be.Unless one is a true American patriot one loathes the sharing of the one thing that gurantees the preservation and advancement of one’s power and that is the power of the gun.
As fewer and fewer patriots with the wisdom of the founders are produced,the orginal intent of the constitution loses sway and the words written upon it seem to beg for arbitrary interpretations—first by the left—then by the rest.
In other words,the people may need to revolt in order to protect their constitutional right to revolt in the face of tyranny—that is,if they still have the guns to do so.
My prediction: 7-2 to uphold the lower court and throw out the ban, with Ginsburg and Stevens in a separate concurring opinion and Souter and Breyer dissenting.
6-3? Who are the 6? I can see possibly 5-4 if Kennedy decides to swing, although it sure didn’t sound like it.
So, if only “milita” can have guns, then I will join the “milita” so I can have a ma duce. And a Thompson. And a “grease gun.” And a...
Come and get them.
He should ask the armed forces--including the organized militia--which have been issuing pistols to personnel since ... I don't know, the Civil War?
Long guns, even though they must be trigger-locked and unloaded, would do fine for home defense, Dellinger insisted as the last word.
And that would be fine, if we could manage to live our entire lives without ever leaving our homes. But some of us have to go to work, or school, and--this part may be a shock to Mr. Delligner--sometimes those are in dangerous neighborhoods. I hear there are a few of those in DC.
Jeez. The author of this article may have been cherry-picking, but if this is what passes for the highest echelon of anti-gun thinking, we should have nothing to worry about. (So why am I worried?)
Ma Duce?
Are illegal alien Dinosaurs crossing the Rio Grande now?
More power tooya bro.
It will be interesting to read what Ginsberg has to say after she consults European law for direction.
Those who would disarm the people are welcome to come for my guns. I will respond one round at a time. I do not expect to win such a confrontation but there will be fewer to go after the next citizen’s guns. No brag, just fact. No government/functionary gave me a right to keep and bear arms and I will resist to the limit of my ability any attempt to do so.
Richard J. Edwards
“Does the amendment have any ‘effect’ today? queried Justice Ruth Bader Ginsburg.”
Yes, the “effect” is that the Second Amendment has been placed in the Constitution — nor was there an expiration clause.
One reason there is no expiration clause attached is that ‘the people’(that’s us, oh great robed one’s)were to be secured from tyrannical governments; along with corrupt justices who are commissioned by ‘the people’ to serve the people: not rule over them!
If, or when, the later becomes the case, ‘the people’ are directed to overthrow such a tyrannical government — along with it’s corrupt ‘justices’— by force of arms!(If necessary)
The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
- Thomas Jefferson
What country can preserve its liberties if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms.
- Thomas Jefferson
Government is not reason. It is not eloquence. It is force. Like fire, it is a dangerous servant and a terrible master.
- George Washington
We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution.
- Abraham Lincoln
The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.
- Patrick Henry
It is the duty of every patriot to protect his country from its government.
-Thomas Paine
When the government fears the people, it is liberty. When the people fear the government, it is tyranny.
- Thomas Paine
Translation: Who gives a damn about the Bill of Rights in this day and age.
Bookmarking.
Anyone know the latest status on this?
WHAT AN IDIOT.
If your scenario comes to pass there will be massive death and destruction from Maine to California and everyplace in between. It will make the first American Civil War look like a Sunday picnic. Count on it.
Stephen Breyer is a pant load. He’s not qualified to be a judge in traffic court much less the Supreme Court.
“What do a bunch of dead white devil slavemasters know? That was then,this is now—and how!”
-the Left
I agree. I made the mistake in 1996 of informing a lib friend of mine that the Supreme Court is in the balance. That guy wouldn’t have figured that out for 20 more years. He was fun to be around though.
"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 12:59But more importantly, regardless that some people evidently think that USSC has the prerogative to séance hidden meanings in the 2nd A., Jefferson also left us with his "secret formulas" for interpreting the Constitution.
"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." --Thomas Jefferson to William Johnson, 1823. ME 15:450In fact, the Left seems to regard the USSC majority's liberal perversions of the Constitution to be so absolute, I sometimes wonder why the justices aren't simply referred to as the high priests of the Supreme Court, the seekers of hidden meanings in the Constitution. /sarcasm off"Common sense [is] the foundation of all authorities, of the laws themselves, and of their construction." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:92
"Common sense is not so common." =^O --Voltaire, French author, humanist, rationalist, & satirist (1694 - 1778)
Getting back to D.C. v. Heller, as I've mentioned elsewhere, the USSC has enough blood on its hands with respect to ongoing liberal perversions of the Constitution that deciding the case in D.C.'s favor would provide the golden opportunity for a peaceful overthrow of the Supreme Court.
Regarding the USSC's perversions of the Constitution, this went full steam after FDR unthinkingly politically repealed the 10th A. protected powers of the states in order to establish his constitutionally unauthorized New Deal federal spending programs. Corrupt justices then started using FDR's license to ignore the 10th A. to unconstitutionally limit our basic freedoms when deciding state power related cases. The following links explain this domino effect in more detail.
This post (<-click), while addressing a tax-related issue, goes into more detail about FDR's disregard for constitutionally enumerated federal spending.
And this post (<-click) tells how FDR's disregard for constitutionally enumerated federal spending arguably led not only to the USSC's unlawful stifling of our religious freedoms, but also to the Court's scandalous legalization of abortion. Note that the post first references two non-abortion cases in order to show Roe v. Wade in a different, troubling perspective.
Not that I expect anybody to agree with my analysis of the USSC's history of contempt for the Constitution, but I'm sure that you can appreciate my stance that the USSC's unconstitutional deciding of D.C. v. Heller in D.C.'s favor should be regarded as the straw that breaks the camel's back concerning the peaceful overthrow of the Supreme Court.
In fact, Jefferson warned us about corrupt justices and Lincoln told us how to handle them.
"The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212"We the People are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." --Abraham Lincoln (Political debates between Lincoln and Douglas), 1858.
‘Does the amendment have any effect today? queried Justice Ruth Bader Ginsburg.’
“WHAT AN IDIOT!”
Nice, laconic answer as opposed to my more verbose one!
That a Supreme Court justice could even ask such a question — is truly mind boggling!
The irony is that as a Supreme court justice her asking, ‘does the amendment have any effect today?’ speaks to the vital necessity of the second amendment in the present time — more than ever!
This kind of arrogant tyranny by the Men In Black brings us to the brink of revolution.
Bookmarking...Reloading...B.L.O.A.T.ing...Practicing...Praying
Ma Deuce is just the girl to make a van full of rowdies show more respect
I shouldn’t worry,the over 200 year old culture of the 2nd Ammendment,like booze,is too embedded in American society to tolerate any long lasting sanction.
Gun prohibition is,like Prohibition was,damed to failure and unavoidable repeal.
“the Left”
I wonder how many of these justices are personally armed,(including carry permits) or what sort of security they have in there personal lives that involve guns?
... Oh ,I forgot, the Royal robed ones are the recipients of more rights in practice (if not fact) than us peasants.
From what I know of Chief Justice Roberts (Bush’s greatest legacy)I presume he is aware of the double standard you so clearly state.
“Laws for thee—not for me” is a concept,in my opinion,hatefull to the man and I expect he will point this out,behind chamber doors,to the other,mostly senile,anachronistic,hell,practically ossified,leftist members of the court.
If he is as efficasious a bully as I believe he is,the old liberal farts will do the right thing and think they thought of it.
“Chief Justice Roberts (Bush’s greatest legacy)I presume he is aware of the double standard you so clearly state.
‘Laws for thee—not for me’ is a concept, in my opinion, hatefull to the man and I expect he will point this out, behind chamber doors, to the other, mostly senile, anachronistic, hell, practically ossified, leftist members of the court.”
That’s good to know!
These ‘dictators of the bench’ have got to be put in their place.
One more thing to keep in mind, as follows:
“If a law is unjust, a man is not only right to disobey it, he is obligated to do so.” - Thomas Jefferson
Kennedy and I believe Roberts will defect. A price he has already agreed to to become Chief Justice
Some did. The minority in the Pennsylvania Constitutional ratifying convention did, as part of their proposal for a Bill of Rights to be added to the Constitution *before* they would ratify it. (Of course they were the minority, but only in that they wanted a BoR added before ratification, rather than afterwards.
That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals
I tend to agree, although maybe 6-3, with Stevens being the possible other dissenter.
At least we don't have long to wait to find out.
But if we are wrong, and the case goes 5-4 against upholding the lower court, then it will be Katy Bar the Door against new "gun control" laws. Law much more onerous than anything we've seen to date.
Of course it will have been a strategic blunder of immense proportions, ruling that the second amendment doesn't mean what it says, *BEFORE* disarming the people. Could get ugly.
He never does. But he writes killer opinions.
Not as far as I know, but members of the Mexican Army have, and in vehicles of the sort that Ma could handle quite well.
I don’t see how we can peacefully overthrow the SCOTUS.
That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong.
Latter laws required Artillerymen to likewise be armed with pistols.
People drinking booze doesn't threaten the power of the elites and/or the bureaucrats. Gun ownership by the Hoi Polloi does.
Alcohol prohibition didn't last nearly as long as gun "prohibition" already has. Prohibition was ratified in 1919 and repealed in 1933. 14 years, and they knew they had no power to prohibit alcoholic beverages without amending the Constitution.
They are expressly prohibited from infringing on the right to keep and bear arms, yet the prohibition on machine guns (newly made ones) has lasted from 1986 until the present, 22 years.
The elites will give up the power to prohibit much more "reluctantly" than they did the power to prohibit booze.
Actually I took that as a positive question. All provisions of the Constitution have effect today, as much as they did when they went into effect in the first place. Ginsburg knows that. She was inviting Dellinger to provide an explanation, however tortured, of what it did mean today. I don't think the explanation satisfied her very well, but I know it didn't satisfy Scalia, Alitio or Kennedy.
It also lead to Stevens inquiring about the meaning of similarly worded provisions in contemporary State Constitutions, (IOW, were the states forbidding themselves from disarming their own organized militia?)
Decision not expected until at least June.
Here's an interesting article, by Alan Korwin, Heller Gun-rights Case Goes Better Than Expected.
BLUF (Bottom Line Up Front), he figures it's at least 5-4, due to Kennedy stating right there in open court that he believes it's an individual right that is protected by the Second Amendment.
Sweet. Thanks.
Mind boggling isn't it!
Semper Fi
An Old Man
The reason a well regulated militia was mentioned in the preamble is that the amendment confers an individual right to keep and bear arms in order that the citizens may form up into local militias and drill together in order to be a better fighting force if the need ever arose.
Please note: there is nothing in there about these militias being government sponsored, and since one of their purposes would specifically be to overthrow a tyrannical government, there is every reason to believe that these militias would not be government sponsored.
This would not allow a private standing army, but if all the menfolk of a community got together a few times a year to drill with their weapons, it would certainly be within this interpretation of the 2A. And, if a town or a community within a town were to gather up the funds for a few cannon, that would be part of the militia drill.
You write:
“The reason a well regulated militia was mentioned in the preamble is that the amendment confers an individual right to keep and bear arms in order that the citizens may form up into local militias and drill together in order to be a better fighting force if the need ever arose.”
The key word in the 2A is “the people.”
Whenever “the people” are mentioned the framers are talking about citizens in the collective; therefor, how can individual citizens be logically excluded? (barring criminals, the mentally incompetent and so forth).
Thus, the question of denying an individual citizen of the collective ( “the people”) the right to bear arms, does not arise.
You further write:
“Citizens may form up into local militias and drill together in order to be a better fighting force if the need ever arose.”
Why not?... As long as these militias — ‘being necessary to the security of a free State’ — are ‘well regulated’.
I would also think it logical to assume that such regulation of these militias would conform to upholding ‘the security of a free State’ and to no other purpose.
At the time the constitution was written, well regulated had a very different meaning than it does today.
“Regulated” at the time had noting to do with rules, or what we now call regulations, as in army regulations.
“Well regulated” meant smoothly functioning, or well trained.
“Regulated” referred to whatever facilitated the system functioning efficiently. Comparable today is “rules of the road” - yes we have lots of driving regulations, but most of them exist to help everyone get where they’re going smoothly & safely, NOT to discourage as many people from driving as possible.
I was trying to indicate that I was not trying to encourage a violent overthrow of the SCOTUS.
Jefferson, in fact, indicated that our options concerning "bad apple" justices are practically non-existent.
"We already see the [judiciary] power, installed for life, responsible to no authority (for impeachment is not even a scare-crow), advancing with a noiseless and steady pace to the great object of consolidation." --Thomas Jefferson to William T. Barry, 1822. ME 15:388I propose a constitutional amendment that does the following. In the spirit of Article V and the 11th Amendment, the amendment would permit a three quarters state majority to reverse a constitutionally unaddressed USSC decision. This would be a check to prevent the USSC from legislating from the bench. Abortion rights, as evidenced by Roe v. Wade, is an example of a constitutionally unaddressed decision.
As a side note, given the 11th A. was made because the states didn't like the USSC's decision in Chisholm v. Georgia (1793), supposing that the three quarter's majority didn't like the USSC's decision in Roe v. Wade, and I don't know the situation then, I wonder why an anti-abortion amendment wasn't made in the spirit of the 11th A. after Roe v. Wade was decided?
Getting back to an amendment which would permit the states to reverse constitutionally unaddressed USSC decisions, the three quarters state majority would also be able to remove "bad apple" justices from the bench. And when doing so, punitive actions should be an option.
“’Well regulated’ meant smoothly functioning, or well trained.”
Yes, trained and qualified.
You wouldn’t want arms to be in the hands of the mentally deficient, criminally insane, or incompetent for some other reason.
Another point, I think, is that the idea of this training would be toward the defense of the state — in order to keep — and ‘secure’ — the states freedom.
The implication is that a government that would forbid such a “peoples” militia to secure the freedom of the state, would, in fact, not be a ‘free’ state at all.
Rather, it would seem that such a state would be under the very condition that the framers wished to preempt — tyranny!
Therefore, it is ‘the people’ that are here charged with being the custodians of their freedom.
Thus the government is commanded:
“the right of the people to keep and bear Arms, shall not be infringed.”
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