Skip to comments.Experts square off on 'right to bear arms' (including Alan Gura from D.C. v. Heller)
Posted on 11/17/2009 10:38:27 AM PST by neverdem
Application of Second Amendment to be decided by Supreme Court
Journal Photo by Lauren Carroll
Lawyer Alan Gura says that owning semi-automatic guns is constitutional.
The man who successfully challenged a prohibition against handguns in the District of Columbia before the Supreme Court said last night during a local debate about the Second Amendment that some states have gone too far.
That's what happened in the District of Columbia, which required that firearms either be equipped with trigger locks or kept disassembled, said Alan Gura, a lawyer from Alexandria, Va., who argued the Supreme Court case.
"If you have a right to bear arms, you have the right to bear arms that actually work," he said.
Gura debated the Second Amendment with Joseph Blocher, a professor of law at Duke University, at the law offices of Womble Carlyle Sandridge & Rice at One West Fourth St. in Winston-Salem. Blocher helped write a brief for the District of Columbia in the Supreme Court case that Gura argued.
The debate was sponsored by the Piedmont Triad Lawyers Chapter of The Federalist Society, a nonprofit organization made up of conservatives and libertarians. About 55 people attended.
Blocher said that for hundreds of years, the courts had interpreted the Second Amendment as applying to state militias. The 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."
The courts had never ruled on whether an individual had the right to bear arms, Blocher said.
Then last year, the Supreme Court did just that. Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms exists and is supported by the "historical narrative" both before and after the Second Amendment was adopted.
The decision, Blocher said, turns the usual interpretation of the Second Amendment on its head, but the problem is that the Supreme Court decision is too vague, making it almost impossible to see how the decision will play out in states across the country.
Another case that the Supreme Court is taking up may answer some of those questions, both attorneys said.
Last month, the Supreme Court said it will take up a challenge to Chicago's ban on handguns. Gura represents the plaintiff in Chicago and yesterday, just hours before the debate, he filed a brief outlining the arguments he plans to make to the Supreme Court in the case. The court is expected to make a decision sometime next year.
The central issue in the case will be whether the Second Amendment will apply to local and state laws. Currently, 44 state constitutions, including North Carolina, already protect gun rights.
Blocher said that since the country's founding, there have always been regulations on guns.
Gura said he has no problem with gun regulations. He agrees with background checks, for example.
However, while one may not like the idea of having powerful guns, owning some, including semi-automatic weapons, is constitutional, he said.
"Scary-looking weapons are protected," Gura said in reference to semi-automatic guns.
Petitioners Brief for McDonald v. Chicago
The courts decide NOTHING as far as I’m concerned.
The Constitution which is the ultimate authority gives us the right to bear arms...
I’ll show them MY interpretation of the Second Amendment when they try to enforce their interpretation.
The Constitution does not give us any rights. Our rights are derived from our Creator. The Constitution is meant to secure those liberties.
Now that doesn’t mean the government won’t bankrupt you trying to limit your rights, but that’s another thread.
No, the Constitution does not give rights. God does:
"...are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."The Constitution protects those unalienable rights from being infringed, abridged or otherwise interfered with by the federal government.
Misleading title. There can’t be any anti-RKBA “experts”, because the Constitution is clear on that right. There are lying gun-grabbers, but no “experts”.
“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.”
I would say this affirms our rights. Armed militias cannot be formed unless those joining the militia possess the arms in the first place. Regulated or not. If a militia is forming to prevent the abuses of gov’t, it would make no sense allowing the gov’t to control the arms the militia would require. JMT
And oh by the way, automatic weapons are protected just as much as semi-automatic. If a soldier can carry it into battle, it should be available for home use.
Suggested correction: The Second Ammendment ACKNOWLEGES our right to keep and bear arms, and forbids the infringing of that right.
In fact, at the time of the revolution and writing of the Constitution, the citizens had more advanced fire arms than did the military.
Then the founding fathers should have said ‘Militia’.
It doesn't so you Statists can choke on it, okay?
How's about we make a deal with the Statists, that if they push this too far, incrementally chipping away at this right paperwork for every firearm transaction, registration..
That after we send them off to one of their favorite Statist utopias like Cuba, North Korea or Venezuela, we PROMISE to rewrite the 2nd amendment just as:
The right of the people to keep and bear arms, shall not be infringed.
That should make all of us happy they can exist in a third world Statist h*ll hole and we don't have to hear their moronic talking points about militias and such, problem solved.
Exactly, no need for an expert to weigh in ...unless they want to twit the heck out of the plain meanings.
The Constitution isn;t a document which limits the individual...it limits govt. However, the experts have tried to redefine even that.
I would like to add that if “Scary-looking becomes some sort of standard of illegality, Frau Botox should start getting worried.
Talk as they will. “They” are not blind to the fact Americans are arming themselves like never before.
What “they” will do is to single out any person/persons who attempt to organize and make a severe example out of them/him/her. It will happen.
There are those who have not forgotten Waco and what an out of control government will do to us. The present regime is hell bent on destroying what is left of the Republic.
We have one more mid-term and one more general election to make the changes we need. After that.....history will be interesting.
The Constitution of the United States . . . provides that the right of the people to keep and bear arms shall not be infringed. But this restriction is . . . a restriction upon the power of the United States alone, and gave to James Lewis no protection against the law of Mississippi, which deprived him, because of his color, of a right which every white man possessed.
Mr. Brownings Letter and Judge Handys Decision, N.Y. TIMES, Oct. 28, 1866, at 4, col. 1; see discussion, supra, at 14.
From document page 38, my pdf page 56 of 91, from Gura's Petitioners Brief for McDonald v. Chicago, linked in comment# 1.
I believe you are limiting your options with a statement like that.
If I have to acquire a modern truck to pull my old 12 pounder to the front, why can I not procure a modern howitzer and do the same?
Just ask-en mind you. I'm gonna keep the howitzer no mater what.
One notes that the 2nd Amendment does NOT say ,
“...,the right of the Militia to keep and bear arms...”.
Yours is a good point.
The cannon used by our Founders to eject their own government's navy from Boston Harbor were taken by force from their own government's Fort Ticonderoga.
The American Revolution was not a war between America and Great Britain. It was a revolution carried out by freedom-loving individuals against THEIR OWN TYRANNICAL GOVERNMENT.
When Paul Revere rode to warn the countryside that an attack was planned on the people, he yelled out, not "The British are coming!", but "The Regulars are coming!"; meaning the regular army of his own government.
Although I am An Old Man, I must confess that I was not present on the night of Mr. Revere's ride, and cannot state with any certanty exactly what he said. The Phrase "the British are coming" is generally attributed to a fellow by the name of Longfellow, you may have heard about him. If not, you can read some about this historic ride made famous in Longfellow's famous poem "Paul Revere's Ride" (1863) HERE.
In order to REGULATE (keep in check, challenge) the militia, the citizens have the right to keep and bear arms for that purpose.
Although one should be mindful that "militia" comprises all able-bodied people. There is a tendency to conflate "militia" with "organized militia," and overlook that "militia" is nearly synonymous with "the people."
The People may make up the militia but they are not
OF the militia, they are free citizens First.Just like
our armed forces, the militia is a volunteer organization. If the second amendment only entitles the militia then
it should have said “..the right of the Militia...”
it clearly says “the right of the people...”, All of the people not just the ones that volunteer to serve in the militia.
“militia” comprises all able-bodied people. There is a tendency to conflate “militia” with “organized militia,” and overlook that “militia” is nearly synonymous with “the people.”
Maybe I can make this clearer,
All able bodied people can make up the militia, but this
does not disbar the disabled or those who choose not to
join the militia, from keeping and bearing arms.
"The militia" has two components, the organized militia, and the unorganized militia. All able-bodied people are members of the unorganized militia. SCOTUS, in Presser v. Illinois said, "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states ..."
Similarly, Unites States Code at 10 USC 331 defines the militia as "(a) The militia of the United States consists of all able-bodied males at least 17 years of age ..."
I agree with your point that the 2nd applies to "the people," and not just to those who are capable of bearing arms. My point was one of definition of the word "militia," noting that it is common for people to construe "militia" too narrowly, as meaning only those who have actually volunteered for duty.
Who was writing poetry, not historical documentation. That's merely one thing he got wrong, as your link states, the poem is "generally inaccurate".
Revere would not have said "The British are Comming", or the "English", because they considered themselves to be Englishmen, and were, on April 19, 1775, trying to assert their rights as Englishmen. They were not (yet and with some exceptions, notably Sam Adams and perhaps Ben Franklin) trying to separate themselves from the Mother Country.
As if the Constitution was about what individulas can or cannot do. It's about how the federal government is organized, what its powers are, what it's relationship to the states is, and what the states are forbidden from doing.
It would be much more accurate to say that the Gura said that the Constitution protects the individual ownership of scary looking semi-automatic firearms. (Of course in reality it protects the ownership (keeping) of arms of all sorts. Swords, axes, firearms, and cannon armed ships. (That can be verified by reference to the power of Congress to grant letters of marque, which authorized people to use their privately owned ships to attack ships of enemy powers, and seize their cargoes, which would not make much sense if individuals, or groups, could not own such ships. One did not need the letter to own the ships or the cannon to arm them with, just to use them in a form of legalized piracy.)
Thomas Jefferson would disagree, as do I.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men
The Constitution *protects* or in Jefferson's word "secures" the right to keep and bear arms, but it does not create it. If it did, it might say something like: "... the people shall have the right to keep and bear arms". Instead it says "the right of the people to keep and bear arms shall not be infringed". The very grammar assumes the right exists, and that it belongs to the people. The second amendment commands that it "shall not be infringed".
Actually the 10th amendment, generally considered part of the Bill of Rights, does protect the states.
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
It protects their powers, but they have no rights. Only people have rights, not governments.
Remember the quote ! “ I regret that I only have but one life to give for my country !” Multiply that about 40 million times!