Skip to comments.US Supreme Court justices seem favorable to constitutional gun rights for Americans
Posted on 03/19/2008 12:15:12 AM PDT by BellStar
WASHINGTON (AP) - Americans have a right to own guns, U.S. Supreme Court justices declared in a historic and lively debate that could lead to the most significant interpretation of whether the U.S. Constitution guarantees that right since the document's ratification two centuries ago.
On the other hand, a majority of justices seemed to agree, governments have a right to regulate those firearms.
There was less apparent agreement on the case they were arguing: whether the national capital's ban on handguns goes too far.
The justices dug deeply Tuesday into arguments about one of the Constitution's most hotly debated provisions as demonstrators shouted slogans outside the stately Supreme Court building. Guns are an American right, argued one side. "Guns kill," responded the other.
Inside the court, at the end of a session extended long past the normal one hour, a majority of justices appeared ready to say that Americans have a "right to keep and bear arms" that goes beyond the Second Amendment's reference to service in a militia as a condition.
Several justices were openly skeptical that the District of Columbia's 32-year-old handgun ban, perhaps the strictest in the nation, could survive under that reading of the Constitution.
"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked.
Walter Dellinger, representing the district, replied that Washington residents could own rifles and shotguns and could use them for protection at home. The District of Columbia and Washington share joint administration, with more federal oversight than other U.S. cities.
"What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's considered especially dangerous," Dellinger said.
Justice Stephen Breyer appeared reluctant to second-guess local officials.
Is it "unreasonable for a city with a very high crime rate ... to say `No handguns here?"' Breyer asked.
Alan Gura, representing a Washington resident who challenged the ban, said, "It's unreasonable, and it fails any standard of review."
The court has not interpreted the Second Amendment conclusively since its ratification in 1791. 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 basic issue for the justices is whether the amendment protects an individual's right to own guns no matter what, or whether that right is tied somehow to service in a state militia.
A crucial justice, Anthony Kennedy, often the swing vote on the nine-justice court, seemed to settle that question early on when he said the Second Amendment gives "a general right to bear arms." He is likely to be joined by Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas in a majority.
Gun rights proponents were encouraged.
"What I heard from the court was the view that the D.C. law, which prohibits good people from having a firearm ... to defend themselves against bad people is not reasonable and (is) unconstitutional," National Rifle Association executive vice president Wayne LaPierre said after leaving the court. The NRA is a powerful Washington advocacy group.
Washington Mayor Adrian Fenty said he hoped the court would leave the ban in place and not vote for a compromise that would, for example, allow handguns in homes but not in public places. "More guns anywhere in the District of Columbia is going to lead to more crime. And that is why we stand so steadfastly against any repeal of our handgun ban," the mayor said after attending the arguments.
A decision that defines the amendment's meaning would be significant by itself, but the court also has to decide whether Washington's ban can stand and how to evaluate other gun control laws.
The justices have many options, including upholding a federal appeals court ruling that struck down the ban.
Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right but urged the justices not to decide the other question. Instead, Clement said the court should say that governments may impose reasonable restrictions, including federal laws that ban certain types of weapons.
Clement wants the justices to order the appeals court to re-evaluate the Washington law. He did not take a position on it.
This issue has caused division within the administration, with Vice President Dick Cheney taking a harder line than the official position at the court.
While the arguments raged inside, dozens of protesters mingled with tourists and waved signs saying "Ban the Washington elitists, not our guns" or "The NRA helps criminals and terrorists buy guns."
Members of the Brady Campaign to Prevent Gun Violence chanted "guns kill" as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted "more guns, less crime."
The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."
Dick Anthony Heller, 65, an armed security guard, sued the district after it rejected his application to keep a handgun at his home for protection in the same neighborhood, near the Capitol, as the court.
The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.
Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."
Copyright 2008 The Associated Press. The information contained in the AP news report may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The Associated Press. Active hyperlinks have been inserted by AOL. 03/18/08 20:11 EDT
Prior to that SCOTUS completely stripped the 10th amendment of any real meaning.
What the hell makes anyone believe that SCOTUS will not strip us of our rights under the second amendment?
You the MAN!! Well said and thanks for your service!!
I believe the U.S. Supreme Court took the case solely to strike down the declaration of a fundamental right.
Seems a contradiction. That which is of the State is not a militia, and that which is of the militia is not of the State. The meaning of the word ‘militia’ was clear at the time, it meant a levy of free citizens capable of bearing arms; not a state organization.
Hitler, Stalin, Amin, Pol Pot, and Mao.
Mass murderers agree: Gun control works.
So how many millions will Herr Hitlery and Brock O’Bomber murder if they weasel their way into the WH?
True, but I believe he was referring to the second amendment's "well regulated Militia" which was trained, disciplined, organized, armed, and accoutered, with officers appointed by the state and reporting to the Governor of the state. "State militia" is just kind of shorthand.
No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. - Thomas Jefferson
That can’t be restated often enough.
Scalia shot it down.
To expect him to present my stunning, insightful, well-crafted and well-researched "rich white guys" argument would have been beyond his capabilities.
Ginsburg may surprise you, she was pretty hard on Dellinger.
SCOTUS seems more favorable to rolling back firearm regs than at any time in my 50.
Go ahead and submit it to your Brady Bunch pals. That is right up their alley and you might get that Christmas bonus from them after all. Don't be modest RP by keeping it all to yourself.
So they settled on a select group of "well regulated" Militia -- trained, disciplined, organized, armed and accoutered, with officers appointed by each state. It was this "well regulated Militia" that was necessary to the security of a free state, not an armed populace.
Their RKBA was protected by the second amendment.
Here you go again. Do you have a brain Mr. Dellinger?
If you had actually listened to what the justices were telling you with their questions you would know that you lost yesterday and you would know that a majority of the justices disagree with your theory.
They were clear that if your theory were true the amendment would have read "a well-regulated militia being necessary to the security of a free state, the right of the militia to keep and bear arms shall not be infringed."
Why don't you stop spreading your bravo sierra and admit that you are, and have been, wrong in your contention that the second amendment only protects the militia.
The justices clearly believe it protects the individual's right to keep and bear arms, regardless of association with a militia. That's how they will rule in June wrt the specific question presented to them.
After listening to Dellinger yesterday, I've come to the conclusion that RP is Dellinger.
Amen. And thank you for your service.
Now come on. Anyone listening yesterday knows that Dellinger is much more articulate than RP.
Apparently. Anyone who thinks he said "No free man shall ever be debarred the use of arms" and that he was referring to the 2nd amendment must be a product of such a system.
Thomas Jefferson was proposing the wording for an amendment to the 1776 Virginia State Constitution. The second amendment wasn't written until 1791, so he couldn't have been referring to it.
Second, what he actually proposed was, "No freeman shall be debarred the use of arms within his own lands or tenements." Big difference.
Third, he used the term "freeman" not "free man". A freeman (or freeholder) was a citizen with full rights, including the right to vote.
Lastly, the Virginia legislature rejected his wording and went with:
"SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."
Not even close to what he proposed.
You are arguing with living proof of this statement.
I think you may be on to something there!
But to have all those ‘city-folk” coming out to the country may be a bit too much of a culture shock for them...
I say we regulate city-dwellers ability to travel into the country/rural areas...
Besides, they wouldn’t be happy there anyway...No Starbucks, not much internet...Americal idol you have to pick up with the directional rabbit ears antenna...
I hear next year the TV folks are going totally digital, there will not be any more broadcast TV anymore...
The “collective” IQ of America may just increase a tad bit...People may just rediscover books...
Things are looking up!!!
(yes, this post is a bit tainted with sarcasm...You may now return to your regularly scheduled blogging)
Aw, shucks! Ya think? I don't know.
“The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing.”
— Adolph Hitler, Hitler’s Secret Conversations 403 (Norman Cameron and R.H. Stevens trans., 1961)
Civil war and 70 million gun owners. We tolerate a lot in the interests of going along to get along, but let the SC rule that 2nd Amendment is not a right and a HUGE red line will have been crossed in the eyes of an armed populace.
The Justices are not stupid and even they can see this.
"....do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; ..."
I too swore that oath more than once in my Naval career, 13 years after retirement, I most assuredly intend on honoring that oath.
The second amendment is certainly not a "dead letter" with the U.S. Supreme Court, despite the fact that we no longer have the kind of militia evisioned by the Founders. What better time to "breath some life" into the second amendment and give it new meaning (literally)?
Hey. "Giving new meaning" is what the U.S. Supreme Court is all about -- they gave new meaning to free speech wih CFR, nude dancing and flag burning, new meaning to priacy with abortion and sodomy, a brand new meaning to eminent domain, etc.
So color me unsurprised.
“The ONLY way to change the Constitution is by a Constitutional amendment...”
You’re talking in theory. I’m talking reality. They change it every time they issue an opinion these days.
If that was what those who passed it truly meant, then why didn't they write it that way?
It seems odd that they would choose to say something they didn't mean, if they didn't mean that The People have the right to keep and bear arms. If they meant that "members of the militia have the right to keep and bear arms" or "The People have the right to keep and bear militia arms" or whatever, then I think they could have written that.
Oh, they meant that. Allow me the liberty to rephrase it as to the way I interpret it:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms as part of a Militia shall not be infringed by the federal government.
I guess they didn't write it that way because they thought it would be redundant.
Of course, I can ask you the same question. If the second amendment protected an individual right, why didn't it simply read, "The right of the people to keep and bear Arms shall not be infringed"
Or, even better, "The right of all citizens to keep and bear Arms shall not be infringed."
First of all, that does not communicate all that the passed version does. While it still protects the individuals' rights to keep and bear arms, it doesn't stress something that was very important--the importance of the militia.
And specifically, it's there because of the history of how the amendment came to be passed. The wording comes over nearly verbatim (in James Madison's original proposal for the amendment) from George Mason's Virginia Declaration of Rights, though with additional clauses dropped. With the additional clauses dropped, the form is more awkward, but it's obvious that the dependent clause remains as it was a very important point--and one of the key points from the original--that the militia is the best defense of the people against a standing army or the government.
In fact, earlier versions explicitly stated what George Mason himself had said--that the militia was the whole body of the people--but the wording was streamlined and the extraneous definition of militia was dropped.
Similarly, the Senate felt so strongly about the need to emphasize the importance of the militia as a check, it changed "the best security of a free state" to "NECESSARY for a free state." On the other hand, that same day, a proposal to add "for the common defence" after "bear arms" was shot down.
But really...most of all, I think...the opening clause of the Second Amendment is necessary because it is dealing with a topic that is mentioned in Article I, Section 8, and without clarification, someone could try to claim that militia equipment would be exempt from the Second Amendment. The opening clause makes it quite clear that although the Congress is given the power to play with the militia, the Second Amendment prevents it from defanging the militia by removing arms from the people or making the militia a tool of Congress to the detriment of the body of the people.
I ask, sir, what is the militia? It is the whole people, except for a few public officials." George Mason, in Debates in Virginia Convention on Ratification of the Constitution; June 16, 1788
Then 7mmMag@LeftCoast quoted Jefferson: "The strongest reason for the people to retain the right to keep and bear arms is,..."
To point out the contradiction in your post, I need only ask, "What is the second strongest reason for the people to retain the right to keep and bear arms?" Jefferson is in no way supporting your statement that self-defense in the wilderness is not a reason to safeguard the right.
I was clearly stating the reason for the 2nd amendment is to safeguard against tyranny, backed by Jefferson's statment, not to protect bubba from enraged geese.
Jefferson is in no way supporting your statement that self-defense in the wilderness is not a reason to safeguard the right.
That statement makes no sense whatsoever and has absolutely nothing to do with my point.
Jefferson spoke about "the strongest reason". What would he have said is the second strongest reason?
How the heck would I know, the man is dead. Far be it for me to second guess him. Maybe for protection from rabid rabbits? No wait that is what Jimmah Carter said canoe paddles were for.
” This is a wake up call for all those out there who do not think McCain is conservative enough for your vote. Imagine what a Clinton or Obama appointee would be like.”
McCain has added his name to an amicus brief with 55 other Senators and VP Dick Cheney urging the Supreme Court to uphold a lower court ruling overturning the ban.
Then stop quoting him telling us about "the strongest reason" as support for your statement that there is only one reason.
When a person tells you what he thinks is the strongest reason, it in no way indicates that there is only one reason. You have no justification from Jefferson for your statement that "the right to bear arms has NOTHING to do with the wilderness or wild animals."
Nothing Jefferson has said suggests that self-defense is not included in "the right of the people to keep and bear arms".
Apparently you do not fully appreciate the reason for or the reasoning of the Founding Fathers in the writing of the Second Amendment or you are just f’ing with me. But at least you are on the side that supports the Right to keep and bear arms and that will just have to be good enough for now.
Besides protecting yourself from tyranny IS self defense.
55 Senators? This means there are democrates supporting overturning the ban. I did not think that there were any pro 2nd Amendment Democrats left after John Stennis died.
I wonder what their ulteriuor motive is?
Thanks, I've never come across your hypothesis concerning the role of militias but I am only an amateur (very)scholar when it comes to the constitution and more specifically the 2nd amendment.
If what you say is correct about militias, then the general populace would be dependent upon their respective state governments to “do the right thing” and call out their respective state militias to take action against the U.S. military. In my opinion, it is very improbable that would ever happen as there is a very strong relationship between the NG units and the US military. So, it seems to me that responsibility for taking action would still fall upon individual citizens banding together.
Btw, what does RKBA stand for? Just curious.
Or to surpress local insurrections. Or to repel invasions. This select group had the training and discipline to do this effectively.
"In my opinion, it is very improbable that would ever happen as there is a very strong relationship between the NG units and the US military"
But back when the second amendment was written, we had no standing army or "National Guard". The Founders were afraid of federal standing armies, and believed a state Militia was the better way.
"Btw, what does RKBA stand for?"
The Right to Keep and Bear Arms.
I believe that definition applies to the entire amendment.
"George Mason himself had said--that the militia was the whole body of the people"
As you correctly quoted at the end of your post, George Mason said that the militia is "the whole people". "The whole people" was another way of saying "the people".
If self defense was part of the second amendment right, the why wasn't the right protected for women and children? Foreign visitors? The Indians?
It was protected for women and children. Once again you are trying to claim that the incapacity of infants is relevant to the scope of protection to be afforded a fundamental right. You really need to expound some more on how the fact that babies cannot speak impacts freedom of speech for the people. You could also expound on how freedom of assembly is impacted by the fact that newborns cannot walk.
Similar issues apply to women, because at the time the Constitution was written, women were considerd incapable of exercising their inalienable rights. It was expected that their rights would be protected by others.
The Indians had opportunities to adopt our practices and become signatories to the Constitution. They were cultural incapable of doing so. Your argument that, because some people were considered incapable of exercising their inalienable rights, has relevance to which people are considered capable of exercising their rights today, is a fallacy which reveals your desire to arbitrarily control others.
You have yet to describe a situation where the home of a woman living alone was subject to warrantless search.
Very telling, no? Some people's idea of the Militia is that it is a state function. Look how well the state functioned during Katrina. The local police were vacationing in another state or looting the stores while the National Guard was busy disarming the people in their own homes who weren't looting anything.
Evidently the National Guard was enforcing the principle that "the right of the people to keep and bear arms shall be fully infringed during and after hurricanes". They didn't even bother to keep records so that people could recover their personal property.
"Your continued insistence upon 'government controls' of these rights is the VERY reason we have them, to prevent maggots like yourself from taking them from us."
"You are a disingenuous, intellectually dishonest, inarticulate, liberty-sucking, trollish ignoramus. Your belief that guns are bad is an in-bred, Socialist-Leftist-Nazi concept and you'd do well to change in your attitude or go elsewhere to peddle your mealy mouthed crap."
Right on. You spoke exactly what I have been thinking for a long time with regard to all his ludicrous postings. Could not have said it any better and it is sad that it even has to be articulated and time wasted refuting the nonsense. But, thank God the SCOTUS has made it clear in their remarks that the preamble to the 2nd amendment has nothing to do with the fundamental right to keep and bear arms. It has nothing to do with a militia, what so ever, other than allowing a free people to take their arms and prevent a tyrant from abusing the constitution by force of arms if and when necessary. Some people just don't get that. Some people rely so much on government that they can't bring themselves to believe that governments can do evil and turn on their own people and free men at arms is the only true protection and grantee of freedom.
Which contradicts your claim made earlier:
So they settled on a select group of "well regulated" Militia -- trained, disciplined, organized, armed and accoutered, with officers appointed by each state. It was this "well regulated Militia" that was necessary to the security of a free state, not an armed populace.As was pointed out by Justice Scalia, when the Scottish Highlanders were barred from "keeping" and "bearing" of arms (Proscription Act), it wasn't just for when they were out in militia drills.