Skip to comments.D.C. gun ban clearly violates 2nd Amendment
Posted on 11/27/2007 2:58:46 PM PST by neverdem
For some 30 years, the District of Columbia has banned handgun ownership for private citizens. It was approved by that city's council in the wake of terrible gun violence and a rising murder rate in the nation's capital.
The ban has stood through this time with other council votes, but without any official review by the U.S. Supreme Court.
Sometime next year, the high court will make a ruling on whether that law is constitutional.
It is surprising to us that it has taken this long for the court to get this case. It would seem that it would have gone to the highest appeal long before now. We do not understand all the legal entanglements that must have kept it off the court's docket, but it is certainly there now.
And now, if the court is acting properly, the D.C. gun ban should be struck down.
This is a clear case of constitutionality, not politics, not conservative or liberal. If Constitution's Bill of Rights clearly allows gun private gun ownership anywhere and we believe it does then it allows it in the District of Columbia.
"The right to keep and bear arms shall not be infringed," is what the Second Amendment says, and there seems to be little "wiggle" room in that statement.
In some instances Washington, D.C. being one of them we admit we despair of so many guns in the hands of so many people who would use them the wrong way, but the answer is not to abrogate the Constitution.
If one portion of the Bill of Rights can be limited by a local government, why can't another? There is no logic in saying on the Second Amendment is up for local review. To continue to allow this is to invite a city council or state legislature somewhere to decide that the First Amendment is too broad, or that the Fourth Amendment is too restrictive on law enforcement.
We know there are passionate arguments for gun control and that is part of the problem: The passion has blotted out clear thinking. This time the NRA is right. The law should go.
You just do this for the fun of it, don’t you! [chuckle]
If they'd meant the "right of the militia" they'd have said that. They instead said "right of the people".
The constitutions of many (most?) states, as well as the United States Code, Title 10, Chapter 331 state that the militia consists of practically everyone. The U.S. Code states that the militia consists of the organized and unorganized militia, with the organized part being the National Guard and Naval militia, whatever that is. All other males over 18 who are not in the organized militia are members of the unorganized militia. If the SC rules nobody can have a gun except militia members — well OK — we’re all in the militia anyway. Does the left get this?
If the SCOTUS rules against us we can all start our own State militias.
We agree (I think) that the first amendment bar to Congress restricting free speech is absolute,or nearly so.
Now, if the amendment read, "Free elections and political activity being necessary to a Free State, the right of the people to speak freely, shall not be infringed" would we not think that pornography could be outlawed?
My concern about the militia clause is simply that it must have a purpose - or else it would not be there.
Moot point notwithstanding, the Supremes at that time would NOT have recognized foreigners or blacks as protected by the BoR. But, the intention of the 2nd Amendment was to allow citizens (”the people”) to keep and bear arms...we just define citizens differently today.
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.
That would be a travesty, since this is about the only article of the Bill of Rights that doesn't specifically direct itself to The Congress. It simply says "the right of the people to keep and bear arms shall not be infringed." I think "BY ANYBODY" is implied.
I'm sorry, but you are not allowed to argue that point so close to an election date. You are subjecting yourself to 1 year in jail and a $10,000 fine.
perhaps they put in the general term "the people" because the knew those who constitute "the people" might change as time went on.
I'm a literalist and, though I agree with your post, I would disagree with your phrasing.
Everyone has the "right," in the sense that we can't stop them before the fact (except through argument or force), to abrogate any of our rights, even our right to life. They just don't have the right to get away with it or to keep us from stopping them cold when they try. IOW, we can't stop them from passing the law, but we can force them to reverse it (if our lawyers are good enough and the court isn't packed, as it has been the last many decades). That's what the second amendment means to me. I have the right to stop someone from breaching my rights or someone else's rights, even if I have to use a gun or a knife or a club to do it, under extreme circumstances.
I've been glad that the court hasn't taken a case like this before now. If they'd had a case of this nature before Sandra Day O'Connor was replaced by Justice Alito I'm afraid that they might have ruled that the second amendment was not an individual right. I'm pretty confident that this court will rule that it is and that's why cert was granted, probably by the 4 solid conservatives. The liberals didn't want to take a chance that it would be ruled an individual right in the past, however unlikely that was, and the laws were trending their way, so they avoided granting cert on anything that had the chance of becoming a precedent that they didn't like.
Judicial activism by non-action in the courts when they had a clear duty to act.
I know, it's an odd way to say it, but it's how my mind works. <g>
"the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
"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."
The same founders who approved of the phrase "the people" in the second amendment, approved of the phrase "the people" in these other amendments in the Bill of Rights. Consistency of definition must be maintained if we are to be able to interpret the intent of the founders. So what definition of "the people" do you propose?
Who told you that?
It's just the most forceful reason to allow the individual RKBA. Folks needed the hardware for self defense as well as food. How would folks get to a rally point unarmed if they have to fight to get there? Colonial militias predate our revolution to the earliest hostilities with the native Indians, IIRC. Whether it is natural disasters like Katrina, or the Rodney King riots, we have a natural right to self defense. Check the excerpt from Parker in comment# 1.
i needed to be told that? and how do you infer my meaning?
On what evidence do you submit that the Constitution was intended to be a "living document" who's meaning changes with the times, as opposed to an "enduring document" who's meaning was fixed at the time of ratification and remains so until amended?
while the rights are given to us by god and not government, they are inherent. however, at that time these rights were only given to the few.
now, "the people" have changed. the right is the same, but whom it applies to has been altered. so the right is extended to them as well.
Isn’t it possible that the U.S. Supreme Court may look at that and conclude that the second amendment protected the right of individuals to keep and bear arms as part of a Militia?
So God changed his mind?
Actually, that's not what USC Title 10, Chapter 331 states. :-)
first blacks were not people, but property. then they were 3/5's of a person, then they were a whole person.
humans are fallible and can make amends for their mistakes. god is an omniscient observer, imho.
I’m finding it hard to believe that the Founders intended that under their Constitution Mary McCauly (Molly Pitcher) had no right to man that cannon.
You're confusing 'blacks' with 'slaves.'
At the time of the founding, there were more than 100 black property owners in Virginia, that were considered full 'persons' and many of them owned black slaves, that due to their bondage, were not considered full persons. Anyone who was a slave, regardless of their skin color, was not a full person.
I know what a firearm is, but I’m not sure that porno videos etc are “speech.”
Then why didn't the 2nd half of the Amendment say "...the right of that portion of the People enrolled in the Militia to keep and bear arms, shall not be infringed." ???????
The words "the People" have been interpreted in MANY Supreme Court cases to mean all of the people, or at least all of those who are subject to US law. To rule that the 2nd only applies to adult white male citizens is utterly absurd on its face, and would turn decades of precedent on its head. It ain't happening. Other things might, but this twisted idiocy won't.
Of course it has a purpose. To state the main political reason *why* the right of the people is being protected. But that reason does not gramatically restrict or even modify the "shall not be infringed", it does not provide an "except" justification.
I think the Supreme Court of Georgia said it best in Nunn vs. Georgia
"The right of the people to bear arms shall not be infringed;" The right of the whole people, old and young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right,
It's only a living document in the sense that it contains provisions for it's own modification. Those provisions require a vote in the state legislatures, and generally a proposal by Congress, alhough a convention can also propose amendments, but the "convention" method has never been used, except to create the Constitution in the first place.
Not quite, the pre-existing right of the people is protected, not created or given, by the second amendment.
"Militias" don't have rights.
It was to protect the right of "the people" to keep arms and bear them into battle. It was a protected individual right used collectively.
A parallel would be your protected right to vote. It is an individual right. But you can't vote when and where you want to. You exercise your individual right to vote with others, collectively.
Not necessarily. About half the states have a State Defense Force or State Guard (completely independent of the National Guard) that is state organized and reports to the Governor.
"If the SC rules nobody can have a gun except militia members well OK were all in the militia anyway."
True. But the second amendment only protects the members of "a well regulated Militia" and Article I, Section 8 reads that the militia will be organized, armed and disciplined by Congress with officers appointed by the state.
I don't think the "unorganized" militia meets these requirement. The State Defense Force does and I hear they're looking for volunteers. How bad do you want that M4?
In all cases, "the people" were the enfranchised body politic, those who were connected to the country, those with something to lose, voters, "full" citizens, "the whole people".
In 1792, "the people" were white male citizen landowners. Coincidentally(?), that also described members of the well regulated Militia, referred to in the second amendment.
"While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
-- UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990)
(This U.S. Supreme Court holding was referenced in the Parker case.)
Space concerns? They could have.
Why doesn't Article I, Section 2 of the U.S.Constitution read, "The House of Representatives shall be composed of members chosen every second year by that portion of the people of the several states who are allowed by those states to vote, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature"?
Actually it was argued, and argued successfully that "the people" in all the instances you mentioned referred to a select group of individuals. In 1792, that description only fit adult, white, male citizens.
See my post #85.
That's not an individual or collective "right to keep and bear arms", it's a state power to arm or disarm citizens at will. Why would you want that?
"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." (Albert Gallatin of the New York Historical Society, October 7, 1789)
"No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])
"The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..." (James Madison, I Annals of Congress 434 [June 8, 1789])
"A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." (Richard Henry Lee, Additional Letters from the Federal Farmer (1788) at 169)
"...to disarm the people - that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)
"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison, The Federalist Papers #46 at 243-244)
"the ultimate authority ... resides in the people alone," (James Madison, author of the Bill of Rights, in Federalist Paper #46.)
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States" (Noah Webster in `An Examination into the Leading Principles of the Federal Constitution', 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))
"...if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" (Delegate Sedgwick, during the Massachusetts Convention, rhetorically asking if an oppressive standing army could prevail, Johnathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol.2 at 97 (2d ed., 1888))
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in Federalist Paper No. 46.)
"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." (Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym `A Pennsylvanian' in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)
"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people" (Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788)
"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." [William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)
"I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426)
"The Constitution shall never be construed....to prevent the people of the United States who are peaceable citizens from keeping their own arms" (Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)
"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." (Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights, Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975)..)
"The great object is that every man be armed" and "everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia,...taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates at 386)
"The people are not to be disarmed of their weapons. They are left in full possession of them." (Zachariah Johnson, 3 Elliot, Debates at 646)
"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" (Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836)
"The best we can hope for concerning the people at large is that they be properly armed." (Alexander Hamilton, The Federalist Papers at 184-8)
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms..." (Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850))
"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)
"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence ... From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . the very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good" (George Washington)
"The supposed quietude of a good mans allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside...Horrid mischief would ensue were one half the world deprived of the use of them..." (Thomas Paine, I Writings of Thomas Paine at 56 )
"...the people are confirmed by the next article in their right to keep and bear their private arms" (from article in the Philadelphia Federal Gazette June 18, 1789 at 2, col.2,)
" `The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right." [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]
"The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff." [People vs. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)]
"The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions." [State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)]
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and `is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power." [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]
Sorry—the Washington quote is bogus. See http://www.guncite.com/gc2ndbog.html
“Space concerns? They could have.”
I think that you are reading too much into the 2nd, something that wasn’t meant to be there. Though there weren’t many, some free blacks actually fought on our side in the Revolutionary War, and some fought to earn their freedom. Surely those at the Constitutional Convention (where the delegates promised that a Bill of Rights would be proposed in the 1st Congress) knew this (esp. Washington, the President of the Convention), and if they meant to exclude blacks they could have easily done so.
Anyhow, I don’t think that space concerns were really an issue, not for the sake of 10 or so extra words - these guys were writing for all of posterity. My language didn’t have to be used word-for-word. There could have been other, shorter, language that said the same thing. THAT’S NOT MY POINT - the point is that they could’ve excluded blacks and women if they had wanted to do so, but they chose not to.
The Militia Act of 1792 required those men who are at least 18, but under 45 to enroll in the militia. There is nothing in the Act that only protects the Second Amendment rights of that subset that was “required” to enroll.
If this is your level of understanding, you really should stay out of discussions like this.
Most of the people on this thread actually know what they are talking about.
I was using the phrase “the people” in reference to the Bill of Rights. In the BoR, “the people” is used five times. In four of those times, it is considered “obvious” that “the people” refer to individual citizens.
In 1792, individual citizens would have included white male landowners (depending upon the State), but it was descriptive of individuals. It in no way could have been assumed that freedom of assembly, for example, could have referred to a collective of individuals without including the individuals themselves.
And yet that is exactly what you are arguing “the people” refer to in the second amendment.
If “the people” are individual white male landowners in the first amendment, then “the people” are individual white male landowners in the second amendment.
The distinction that in 1792 only white male landowners were “the people” is not in question. The question becomes, does the right of “the people” in the second amendment mean exclusively a collection of individual citizens, or does the right of “the people” in the second amendment mean the actual individuals that make up “the people”?
A consistant reading of the Bill of Rights would make it obvious that the individuals consisting of “the people” have the same level of acknowledgement in the second amendment as they do in the first, fourth, ninth and tenth amendments.
Instead, they excluded those who weren't allowed to vote -- women and blacks.
Amen to your post. Robert Paulsen doesn’t seem to understand that the text of the Constitution is supposed to be read as broadly as possible when construing rights of the people, and as narrowly as possible when construing powers of the government.
Under his “adult white male landowners” interpretation of “the People,” Martha Washington could have had her house broken into and searched by government agents without a warrant, could have been coerced into making self-incriminatory statements by use of torture (real torture, not waterboarding or being forced to listen to bad music), and tried in secret without a jury in northern NY state for an alleged infraction of the law in Virginia, and sentenced to life in prison for stepping on the grass of some federal property. Somehow or other, I just don’t think that these massive violations of basic rights for non-male, non-property-owning citizens werre what the Founders in general, or those who proposed and ratified the BOR in particular, had in mind (though as far as non-whites are concerned, the viewpoint was likely different for a few of those people - but that is a whole other issue that subsequent amendments to the Constitution have rendered moot, as they have rendered Robert Paulsen’s antiquated and incorrect interpretation of the phrase “the People”).
True. The Act says white, male citizens, 18-45 years of age.
The second amendment protects "the people" -- adult, white, male citizens.
My point is that this is more than a coincidence. My point is that the U.S. Supreme Court could conclude that the second amendment only protects those in a Militia.
“My point is that this is more than a coincidence. My point is that the U.S. Supreme Court could conclude that the second amendment only protects those in a Militia.”
Is that your hope or is that your fear?
You misread what I meant - I meant that IF the drafters of the 2nd Amendment had wished to exclude women and blacks from the RKBA, they could have done so with a simple clause. They didn't do so, and that is a matter of the GREATEST significance.
Do you have any understanding of the 9th Amendment? To refresh your memory, it says:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, the fact that the Constitution fails to specifically protect the RKBA of women and blacks (or, for that matter, people older than age 45 who are not members of the militia, or non-owners of property) does NOT mean that those rights don't exist or are not protected (by the 9th Amendment, if not also by the 2nd).
Further, look at the 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."
This means that unless the United States is specifically given the power to deny women and blacks (and older folks, and non-owners of property) the RKBA, THEN THAT POWER DOES NOT EXIST.
Do you get it, you statist? The Constitution created a necessary evil - a powerful central government. However, the Founders decided to specifically limit the powers of that government (Amendments 9 and 10), to divide the power between 2 branches (though the Marbury v. Madison case broadened that to 3 branches), and to further limit the government with a series of Amendments which later became known as the Bill of Rights. IOW, Government gets the minimum power necessary to have an orderly and just society, and the people get the rest (or the states - as the people decide is best). WE THE PEOPLE are sovereign here, NOT the government.
BTW, are you cognizent of the fact that the promise of the basic terms of the BOR was part and parcel of the consideration for the states to ratify the Constitution? Whether you are aware of this or not, tell me what happens when one party to a contract fails to live up to the terms of that contract? It is call "breach of contract," and generally allows the other party (parties) to stop abiding by the terms of the contract. Think about what that means in terms of this country - THAT is what a statist decision like you clearly would like to see would push us toward.
I know. But it's easier to understand in Article I, Section 2. Certainly you agree that "the people" are the same individuals throughout.
Now, is the right to vote individual or collective? As with the right to assemble and the right to keep and bear arms, the right to vote is an individual right exercised collectively. It's the only way to describe it.
You only vote when everyone else is voting, you only assemble when everyone else is assembling, and you only keep and bear arms when everyone else is as part of a Militia.