Supremes Establish an Individual Right to Gun Ownership
In an expected but no less earthshaking decision, the Supreme Court ruled today that the language of the second amendment guarantees US citizens an individual right to own guns.
Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far in making it nearly impossible to own a handgun.
It was the first time in nearly seventy years that the court has addressed the second amendment, and the first time it has weighed in on whether the amendment guaranteed a collective or individual right. The language of the amendment is ambiguous:
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.
In that case in 1939, the Court ruled that the Constitution did not protect a right to own specific guns (in that case a sawed-off shotgun), suggesting--but not clearly stating--that there is no individual right to own guns. The conservative members of the court (Roberts, Alito, Scalia, and Thomas) were joined by Justice Roberts in clarifying and refuting that suggestion:
Not surprisingly, Justice Scalia and Justice Stevens differed on the clarity (or lack thereof) of the Second Amendment. “The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”
Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.” Justice Stevens read his dissent from the bench, an unmistakable signal that he deeply disagreed with the majority.
The court concluded that the amendment protects an individual right to bear arms, but it also said that the right is not absolute, opening the door for more fights in the future. Lawmakers across the country may look to the decision as a blueprint for writing new legislation to satisfy the demands of constituents who say there is too much regulation of firearms now, or too little, depending on the sentiments in their regions. In March 2007, Washington city officials expressed disappointment and outrage when the United States Court of Appeals for the District of Columbia Circuit overturned the city ordinance. The Supreme Court ruling is sure to prompt work on a new ordinance that can withstand high court scrutiny.
It is the highest-profile case to be decided by the Roberts Court, and suggests that the Court will not blanch at the opportunity to decide in favor of conservative positions in politically-charged cases.
Discuss.
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June 26, 2008 |
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Posted by: Tom Civiletti | Jun 26, 2008 10:39:19 AM
So, Kurt, do you support a woman's right to shoot herself in the womb?
Posted by: joel dan walls | Jun 26, 2008 10:43:54 AM
So, Kurt, do you support a woman's right to shoot herself in the womb?
No, she's only allowed to shoot the rest of her family in a murderous fit of passion.
****************
I was wondering if there are any legal scholars out there who might compare the US Supreme Court today to what FDR confronted in 1933 after a long period of GOP ascendancy. Seems that that might be a useful point of comparison.
Posted by: Jamais Vu | Jun 26, 2008 10:46:20 AM
It is the highest-profile case to be decided by the Roberts Court, and suggests that the Court will not blanch at the opportunity to decide in favor of conservative positions in politically-charged cases.
Huh? What exactly is "conservative" about believing the Constitution guarantees individuals a right to own firearms? Seems like the court has merely affirmed a long-standing norm that has only been challenged in big cities, where the odd theory that gun violence can best be controlled by disarming law-abiding citizens somehow has become accepted truth (and without much evidence to support it.)
I never thought of any of the Amendments to the Constitution, including the 2nd, as "Conservative" or "Liberal." They always seemed more "foundational" to me. The Heller decision seems like the affirmation of a basic Constitutional right; the most surprising thing was that it was a 5-to-4 decision. THAT is troubling.
Posted by: Steven Maurer | Jun 26, 2008 10:52:31 AM
Actually, Kurt's idiocy masks the clear parallel between these two rulings. In both cases, the Court took the most common interpretations for parts of the Bill of Rights and made them explicit.
In the former, it was the the prohibition against unreasonable search and siezure clarified into forbidding government interference in private medical decisions. In the latter, it was the right of the people to form militias bearing armaments clarified into an individual right to keep unsecured loaded handguns in ones own home.
The other parallel is that the opposition in both cases, is motivated by the professed desire to save human life.
Posted by: Kevin | Jun 26, 2008 10:56:19 AM
Seems like the court has merely affirmed a long-standing norm that has only been challenged in big cities, where the odd theory that gun violence can best be controlled by disarming law-abiding citizens somehow has become accepted truth (and without much evidence to support it.)
The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens. Which goes to the heart of why I personally disagree with this SCOTUS ruling.
I want to know who is packing heat and who isn't. With handguns I don't necessarily know and thus can't take any steps to protect myself.
Case in point: the recent shooting at that plastics plant earlier this week. The reports I read said that the supervisor was escorting the shooter out of the building when the shooter pulled out a handgun and shot the supervisor dead.
The supervisor obviously didn't know that the shooter had a gun on him or he very likely would have handled the situation very differently. If the shooter had had a rifle or shotgun then the supervisor could have taken steps to protect himself.
Handgun bans do not deprive citizens of the right to self-defense - they allow the rest of us to make more informed choices about our own safety.
Posted by: Jeff Alworth | Jun 26, 2008 11:00:05 AM
JV--
I posted this piece, and I chanced that editorial comment at the bottom, because some context needs to be brought to the significance of this decision.
For 217 years, the Court has never weighed in on the question, despite the very confused language of the amendment. You suggest that it's a pure consitutional question, but the facts belie this claim. In the absence of clarity, vast political machines have been built up around the opposing interpretations of the amendment--gun rights activists on one side versus the NRA and related activists on the other.
It's true that these two sides don't cohere into exactly the positions of the two parties, but that doesn't make them any less political.
Moreover, the context of the last 25 years, where the GOP has allied itself with the NRA and used gun-rights as a major part of their populism, definitely makes this a "politically charged" case.
A different court might not have taken the case or might have decided ambiguously so as not to make it a political decision. But that's not the position the Roberts Court took. Instead, it rammed a major decision through the narrow majority. So that's why I characterized it the way I did in the post.
Posted by: Robert Harris | Jun 26, 2008 11:22:28 AM
I was waiting for the part of the opinion that limited gun ownership right to a flintlock and a blunderbuss. That would be the original intent in 1789. Right?
Posted by: MCT | Jun 26, 2008 11:27:12 AM
In 2000 our young adult kids voted for Bush for one reason....the Democrats' stand on gun control. Yeah, they're sorry now. I am a extremely liberal in my thinking, but I can't help but notice some major issues sort of blur along the dividing line between party platforms and the old definitions of what is liberal and what is conservative. Guns and gun control is one of those issues.
I don't own a gun, but I believe we should all have the individual right to 'bear arms'. I'm intrigued by the idea that this particular Supreme Court would uphold the Constitution. Then, questioning motive, I get to thinking about the private army, Blackwater, training in their new camp in Potrero, CA near the Mexican border. Wouldn't be very convenient for us all to return to peace time and start questioning the legality of Blackwater's arsenal, or infringe on their right to have it. Snicker.
We here are all striving for a return to a Constitutional government through grassroots movements and citizen involvement, noisy but peaceful. But I think the founders knew exactly what language was needed in the Constitution to ensure Americans had the means to protect (and deter) their Republic from elected usurpers, as well as foreign invaders and any persons who would illegally intrude upon their homes and safety with harm in mind.
Posted by: Jamais Vu | Jun 26, 2008 11:46:37 AM
The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens.
Actually the DC ban included assembled rifles and shotguns. These had to be kept in a way that prevented their quick and easy use. That's not much different than a ban when it comes to the practical matter of protecting your home from an intruder or drive-by. Of course the ban took place in 1976 and the uptick in extreme violence in D.C. happened in the mid-1980s. Doesn't seem like the ban was followed by those bent on mischief, but they never are.
In 2000 our young adult kids voted for Bush for one reason....the Democrats' stand on gun control.
The party loses a lot of votes over this issue, which is a real loss when you consider the number of gun-owning Democrats around, especially in the West. I hate to say we're shooting ourselves in the foot by promoting pro-ban positions, but there it is.
The Heller decision is actually a disappointment to people with strong 2nd-Amendment views. Note that Scalia even supports bans in public places like courts, schools, and so forth. It's not an extreme position at all, and falls short of what many pro-gun proponents hoped for.
Posted by: Justin | Jun 26, 2008 12:17:45 PM
Re: Joel's question,
FDR was displeased with SCOTUS, because they were handing down decisions that went against the Federal govt, which FDR eagerly was expanding. FDR actually threatened to expand the number of seats on the SCOTUS, and flood the bench, in order to get more favorable decisions. After "The Switch in Time that Saved Nine," the court immediately began to more liberally decide cases, starting with West Coast Hotel and the reversal in substantive due process rulings.
As for the parallels to the Bush-era SCOTUS, they do exist, but they are not quite as drastic. The SCOTUS has showed some of its conservative leanings for the last 15 years, including Morrison et al, but also more liberal rulings such as Lawrence v. Texas. There is no exact parallel, because the SCOTUS is in a fluid state, due to a few consistently moderate votes that tend to swing decisions. Yet, if Obama fails to win this race, the court will swing conservative, after replacing 3 judges, in a way that has not been seen in our lives.
Posted by: Bert Lowry | Jun 26, 2008 12:37:19 PM
Jamais Vous wrote: Huh? What exactly is "conservative" about believing the Constitution guarantees individuals a right to own firearms?
Yeah. I don't see gun ownership as Republican vs. Democrat. As near as I can tell, the 2nd Amendment is a civil rights issue.
And the explicit position of the Democratic Party of Oregon is that the 2nd Amendment is right guaranteed by our government. That means that the government doesn't get to decide when you're allowed to excercise that right any more than they can decide when you can excercise your right to free speech or freedom from unreasonable search and seizure.
Of course, I've never really understood why some people are anti-gun.
Posted by: Ellen | Jun 26, 2008 12:37:50 PM
You liberul idiots are just anti-American gun haters.
Get over yourselves and buy a gun. Any gun. And then practice with it so that you will not be a newbie idiot, but more informed on this issue. Then talk to 2nd Amernment, 2nd Congressional District Chuck. He will give you libbies a clue or two.
Posted by: j_luthergoober | Jun 26, 2008 12:43:44 PM
Attention all gun nuts out there! Now that the oligarchic elites have affirmed your right to protect your self with lethal weaponry do yourself a favor and make sure you don't screw up. This is a warning from a loaded for bear liberal -- Gun nut; if you mistakenly shoot me for any reason what-so-ever, you will be sued beyond your wildest dreams. I will not hesitate to compensate myself with everything that you because of your negligence.
Hey and gun nut, have a nice day...
Posted by: registred republican | Jun 26, 2008 12:44:45 PM
Posted by: j_luthergoober | Jun 26, 2008 12:52:38 PM
Hey rr, you may rest assure, that Obama's aim is true...
Posted by: Just a Dog | Jun 26, 2008 12:55:27 PM
Good citizens need a way to protect themselves when out in public from all the violent criminals that liberalized judges have returned to the streets.
Me? If I have to pull a gun because of a threat to my life or the life of a loved one or neighbor I will shoot to kill - not injure. I'd be concerned some idiot criminal would try and sue me and some liberalized judge would grant him his wish!
Posted by: Glen HD28 | Jun 26, 2008 12:57:41 PM
Here's an attractive scenario: Dick Cheney no longer needs a cumbersome shotgun for those special times when he's having a few beers with his pals, and wants to blow some holes in someones face.
Ellen, there were several replies I could have made to your insipid, insulting, inflammatory comment, but I'll settle for just two words: Spell. Check.
Posted by: Tom Civiletti | Jun 26, 2008 1:06:09 PM
Ellen,
Why do you assume all liberals are anti-gun?
Posted by: Jeff Alworth | Jun 26, 2008 1:07:29 PM
Aside from the question of whether this was a politically-motivated decision, and even the question of whether you agree with it, here's a more interesting one, spurred by Ellen's eloquence: does this help or hurt the GOP in '08?
My first take is that it hurts them. It takes a wedge issue off the table--or substantially off the table, anyway. An already disengaged GOP electorate, dealing with the humiliation of torture, deficit-spending, Katrina-like incompetence, corruption and so on, is hardly going to be energized by this.
Posted by: registered republican | Jun 26, 2008 1:40:07 PM
Jeff - I'd work on the second take. The party over this issue is just getting started. The IL NRA filed suit to overturn Chicago's handgun ban 15 minutes after the decision in Heller. Philly (and other cities) to follow soon (if they haven't already).
The Second Amendment will be a lodestone around B.O.'s neck from June 26 through the general. Many gun-toting Democrats will go McCain, independent, or just stay home. He really should have signed on to that amicus brief...
Posted by: petr | Jun 26, 2008 2:01:58 PM
the big difference between the scotus during fdr and the scotus during bush is that during fdr, especially in his second term there was a massive popular mandate for political change unlike we've ever seen in (most of) our lives. this popular mandate was backed up by the voters, the presidency and both houses of congress but was being held back by a supreme court that was still interpreting law on the political needs of the previous generations. basically, the constitution was behind the times and the supreme court needed to get with the times (and eventually did, most significantly with the reinterpretation of the commerce clause to allow full federal regulation of business).
in the bush era what we have is a court that represents a failed attempt at a contrived constitutional revolution that would mostly be at odds with the popular will. in their current formation they will win some marginal victories like this 2nd amendment issue, and they will probably succeed at impeding some progressive changes if obama wins, but they will not achieve the radical radical reinterpretation of the constitution that they had been aiming for.
Posted by: Steve Bucknum | Jun 26, 2008 2:28:33 PM
Bert Lowry writes, "I don't see gun ownership as Republican vs. Democrat. As near as I can tell, the 2nd Amendment is a civil rights issue.
And the explicit position of the Democratic Party of Oregon is that the 2nd Amendment is right guaranteed by our government. That means that the government doesn't get to decide when you're allowed to excercise that right any more than they can decide when you can excercise your right to free speech or freedom from unreasonable search and seizure."
I agree. I was a voter the day that by a vast majority the State Central Committee of the Democratic Party of Oregon took its position in favor of Second Amendment rights. I was on the Platform and Resolutions Committee that (if memory serves me correctly) unanimously sent this resolution to the Central Commitee with a "do-pass" recommendation.
The Constitution is not owned by Republicans and the right. We as Democrats have just as much right to demand that every section and every provision of that document be preserved and protected. I for one don't see how you can make a case for taking out pieces of the rights we have.
I support Habius Corpus. Don't you? I support free speech. Don't you? I support the right of free assembly. Don't you? I support a free press (and wish it would get its act together). Don't you? I support freedom of religion. Don't you? I support the right of due process in the legal system. Don't you? And I support the right to have my guns. Why shouldn't you?
Posted by: joel dan walls | Jun 26, 2008 2:39:20 PM
First of all, thanks for the comments in reply to my question about how today's Court compare to the Court when FDR took office.
Next question is, does anyone know if there are any democratic countries besides the US that have any sort of constitutional guarantees regarding firearms? My guess is no. I would further guess that the reason for fairly robust gun control in other democratic countries reflects both the constitutional situation and local cultural values. Just speculation.
Posted by: t.a. barnhart | Jun 26, 2008 2:42:52 PM
the last thing this is a burden on Obama or any Dem. 2008 is going to be about one thing: the economy. the worse things get, the more myopic the public will become. all anyone will care about is their job, their savings, their gas, their home, health care costs, etc. the gun issues mentioned above have to do with cities, not the federal govt. the NRA will try to work against Obama on this, but people will respond with: "Yea, but what about gas prices? What about my mortgage? My job?"
additionally, the coalition of support that is starting to carry Obama well ahead of McCain is not going to care much about guns. not high on the list of essentials for women, young voters, minorities (so-called) and labor. this election is going to be won on positives for a change: the amount of positive support Obama has. that'll be a great way to go into 2009.
Posted by: Displaced Oregano | Jun 26, 2008 2:43:38 PM
Here's what I don't get: "the right of the people to keep and bear Arms, shall not be infringed." From a strict perspective, I ought to be able to own ANY weapon, from a .22 rifle to a ICBM or Surface-to-Air missile. I think most agree that laws against individuals possessing WMD are reasonable. If you accept that laws limiting ownership of hydrogen bombs or fully-auto assault rifles are legitimate and legal expressions of the public will, balancing social safely against civil rights, how can it be unconstitutional for a particular state or jurisdiction to attempt control of another particular class of arms, say, semiautomatic handguns?
Posted by: Howard W. Campbell, Jr. | Jun 26, 2008 2:55:17 PM
Displaced Oregano: You're making too much sense and it's hurting my head. Didn't you hear that Obama is going to do away with Christmas and substitute a gay sex holiday?
Posted by: Max | Jun 26, 2008 3:38:50 PM
I'm pleased that scotus upheld our 2nd Amendment, although I don't own any guns myself. I was less pleased about their decision to invalidate states' rights to determine appropriate levels of punishment for convicted child rapists, and I agree with Obama's stated view on the latter subject.
Thus, it seems inappropriate to describe the current court as "conservative or "liberal" - they're clearly all over the map.
Posted by: Chuck Butcher | Jun 26, 2008 3:50:14 PM
There was never any intent nor language to include cannons or other explosive devices. Arms and militias were understood to be small arms - ie firearms. For 180 years the individual right was never questioned, that move occurred in the 1970s. There is absolutely no historical basis for the argument that the right is collective.
I am farther left than most people who comment on this site. I am not liberal or progressive, I am plainly left. I see no difference between the perceived security many of you object to in Bush's abrogation of Habeas or the 4th or "free speech zones" and the idea that the 2nd is somehow disposable on the same basis.
None of the BOR are considered limitless, ie crying fire in a crowded theater, this hysteria is ludicrous. Most of you crying foul have no idea what so ever what the actual laws are or what the actual operation of firearms is. I'll bet, that in the face of plain physics, 3/4 of you think a bullet will throw somebody someplace or knock them down. Movie land fantasies rule. The chances that a legally owned firearm will be involved in a criminal act versus the numbers in private hands are vanishingly small.
You willingly take your eyes off the real problems that encourage firearm violence and focus on the things. You are played for fools and certain segments of power benefit hugely from it. It is in the interest of certain power centers to let you focus on a thing rather than the conditions. 1% of the population makes more than the bottom 90% and you take your eye off the conditions created by that? How can you not have ghettoes?
The same fear mongering crap you accuse the Republicans of is in operation on this issue; don't even look for the man behind the curtain.
Posted by: Buckman Res | Jun 26, 2008 4:01:26 PM
”the big difference between the scotus during fdr and the scotus during Bush...basically, the constitution was behind the times and the supreme court needed to get with the times”
There is a mechanism for correcting the Constitution when it is seen as being “behind the times”. That is the amendment process which has been used numerous times throughout the country’s history. The job of the Supreme Court is not to amend the constitution but to interpret the constitutionality of laws.
What FDR tried to do was stack the court with ideologues who would rubber stamp his agenda, thus disrupting the government’s balance of power, something even those in his own party were against. Even Bush hasn’t tried to do that.
When you read how restrictive the DC law concerning rifles and shotguns was it is surprisingthe decision was this close.
Posted by: Jenni Simonis | Jun 26, 2008 4:25:54 PM
To be honest, I'm not surprised at all by this ruling. The Constitution's fairly clear on this issue. People may disagree with it, but it's one of the initial Bill of Rights. Yes, other countries have gun controls and bans - but they also don't have a Bill of Rights that includes the right.
I don't own a gun, never held a gun, and there isn't a gun in our house. Yet, I became a member of the Democratic Party of Oregon's Gun Owners Caucus. Why? Because this is another issue where we regularly alienate voters who would normally vote with us. And it's on an issue that is pretty clearly spelled out in the Constitution.
- - - - -
Now here's a ruling that has me worried...
From the unofficial Lane County Bus Project blog:
The Supreme Court took a major swipe at crime victim’s rights recently. In Giles v. California, the Supreme Court held that a crime victim’s report of a prior incident of assault by her husband could not be used against him in a subsequent trial of him for her murder a short time later. The decision struck down a California rule that provided that prior statements made to the police could be used against a defendant if the defendant’s conduct had caused the victim to be unavailable for trial.
You can read the whole thing here.
- - - - -
Some victims rights groups have come out in support of the ruling on no death penalty for child rape. They said those who rape children are more likely to be a family member, close family friend, etc., and as such families are hesitant to send that person to death. Yes, they committed a horrible crime, but do you want to send daddy to die? So it decreases the number of people turning in the perpetrators, following through for it to go to trial, etc.
I don't have too much problem with this ruling - I understand where the victims rights groups are coming from, and I see the death penalty (if used at all) to be used extremely sparingly. It would appear that this is one more step towards either getting rid of the death penalty or making it something that is used only in the most extreme situations.
Posted by: Mike Clark | Jun 26, 2008 4:45:11 PM
Jeff,
I think your 1:07:29 post is exactly wrong.
I am a life long Republican who only today made a final decision to vote for John McCain.
This ruling brings into relief the importance of SCOTUS choices for me and many other Republicans I have spoken to today. And Frankly, I'm a little shocked that we as a society aren't talking about what I think is the much more important lesson from today.
Everyone should be concerned with the idea that our country was one person's swing vote away from loosing an enumerated civil right. One person's vote. I am now a much more motivated McCain supporter.
Posted by: Jeff Alworth | Jun 26, 2008 4:51:23 PM
Interesting commentary from Eugene Volokh, which I pass along:
There’s no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren’t just about winning elections, as I’ll note below. But winning is part of it.
Orin Kerr adds:
The major theme of the October 2007 Term, it seems to me, is that we have a minimalist Court with no surprises. There were no major revolutions this Term. Even the big cases were narrow and interstitial. The Court mostly took baby steps.It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit. Even these big cases were actually really narrow. Boumediene went where the Court very strongly hinted it was going in Rasul v. Bush back in 2004: The Court's reasoning was limited to the few hundred detainees at Guantanamo Bay, and did not order anyone's release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The Court's opinion only deals with child rape capital cases, of which Kennedy's own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun control laws are all constitutional.
Grist for the mill.
Posted by: marv knudson | Jun 26, 2008 4:57:18 PM
Is their a Constitutional guarantee to have a handgun in
France? Well, for a little over forty years they have had
universal, comprehensive health care. The levels of anxiety and stress are significantly lower. People who
are happy intead of fearful may not need to announce that,"You better watch out for me 'cuz I am packin' heat."
Then too, what is a weapon? Is a Pentagon that can not
explain where or how $195 Billion dollars was spent in last years budget alone keeping you safe. Lets see, do I
prefer an auditor or a howitzer. Republicans have reduced
auditors and increased the amount that each is responsible
for tracking from $600 Million to $2 billion. Safer? The
connection between anxiety over whether or not you have a
gun or whether or not you will lose your home due to a
medical catastrophe. Safer with a gun or safer with a
good single payer comprehensive health care plan. Zero in
on the right target. When you don't need a gun because there is less crime and happier people guess you have to
admit you live in a different country.
Posted by: Jefffrane | Jun 26, 2008 4:57:27 PM
Everyone should be concerned with the idea that our country was one person's swing vote away from loosing an enumerated civil right. One person's vote. I am now a much more motivated McCain supporter.
I had exactly the same satori in 2000, when one person's vote on SCOTUS took away our nation's right to elect a president.
What I have never understood is why some people are passionate and even irrational defenders of their interpretation of the 2nd Amendment while being perfectly willing to let violations of the other amendments (notably the first) slide by with a lot of rationalization.
Posted by: Carelton Sexton | Jun 26, 2008 5:01:01 PM
"...the right of the people to keep and bear arms, shall not be infringed."
Note that it doesn't say, "the right of militia members" or "shall be subect to restrictions determined by a legislative majority".
I'm surprised the SCOTUS majority opinion didn't attract 7 votes: I'll have to read the dissenting opinion to learn why the minority got it so wrong.
The simple fact remains that private gun ownership was widespread in Revolutionary America, and the fledgling U.S. Government made no attempt to restrict ownership of weapons to militia members.
It's only after nearly 240 years that the diction and syntax of that era could be so widely misunderstood by gun control advocates and four Supreme Court Justices.
Posted by: RichW | Jun 26, 2008 5:03:49 PM
Well this is well down the slippery slope toward legalizing the shooting dogs and polygamists !!
Posted by: Steven Maurer | Jun 26, 2008 5:41:22 PM
That is modern interpretation, Carelton, but it has nothing to do with the original intent of the Second Amendment. Fortunately, we have notes from the revolutionary war period about what the Second Amendment was really about, which was standing armies.
There was (and in some places is) a political theory that any nation that keeps standing armies, as opposed to organizing militias on an as-needed basis, will naturally use those armies to foment war. Like, for instance, sending people off to Iraq. Thomas Jefferson had even the stronger opinion that nations with standing armies were inviting tyranny (as later turned out to be the experience in many banana republics).
So a big argument at the time was - should we have an army at all? Or should we be like the modern day Swiss, who train every one of their men in the use of military equipment, but pay absolutely nobody to be a soldier?
This issue was very divisive, so much so that the original version of the second amendment, which basically said "No armies. Only local militias." was hacked into the form we see today. However, the clear intent of the founders was that the right to "bear arms" by the "people", meant in the context of a militia.
In other words, the Second Amendment says "the people", not (as in other places in the Bill of Rights) "each person". Initially, it was all in the context of people who could be "raised" (i.e. immediately drafted) for local defense.
There was also, initially, no real distinction in terms of what those arms entailed. The militia acts later passed (still in the 1700s) expected militia members when raised to bring (and pay from their own pocket for) personal weapons (swords, bayonets, pistols, muskets, rifles, petards, and powder). They also expected that some would act in the capacity of artillerists, but as a practical matter, the expense of heavy weapons made it so that they were usually kept in an armory.
That said, however, I am not someone who believes in "original intent". I believe "evolving standards" is the way to interpret the Constitution. There are a large number of people who see the Second Amendment as the right of each citizen to bear small arms, and so no matter what the historical origins of the Amendment, it should be interpreted that way today.
Posted by: Kevin | Jun 26, 2008 5:53:40 PM
Well this is well down the slippery slope toward legalizing the shooting dogs and polygamists !!
ROFL
Priceless... absolutely priceless.
Posted by: LiberalIncarnate | Jun 26, 2008 5:59:18 PM
And we are surprised by this, why?
Let's face it... 51% of this country are primitive barbarians. I say... let them shoot each other.
Posted by: MCT | Jun 26, 2008 6:08:38 PM
Chuck Butcher I love what you said. And it's true we have taken our focus away from the issues that spawn violent crime. We should find a cure for the disease, not just bemoan the symptoms. Give the "masses" livable wages, and take away the fear-of-future poverty breeds and crime will drop, productivity and inovative thinking will rise.
Crap does this mean I am Left, Chuck? aaahhahaahaaaa
Posted by: Brian | Jun 26, 2008 7:26:21 PM
What's not to like about this decision, aside from the the disappointing 5-4 margin? If you ask me, it didn't go far enough. In my mind, the right to bear arms ranks right up there with free speech, privacy, the right to choose, etc. The Second Amendment represents a cornerstone of individual liberty, whether you choose to posses firearms or not. "And then . . . they came for me . . . And by that time there was no one left to speak up."
Posted by: petr | Jun 26, 2008 7:37:24 PM
"There is a mechanism for correcting the Constitution when it is seen as being “behind the times”. That is the amendment process which has been used numerous times throughout the country’s history. The job of the Supreme Court is not to amend the constitution but to interpret the constitutionality of laws.
What FDR tried to do was stack the court with ideologues who would rubber stamp his agenda, thus disrupting the government’s balance of power, something even those in his own party were against. Even Bush hasn’t tried to do that."
the supreme courts interpretation of the law has a direct influence on what kind of republic we live in. often supreme court decsisions, or clusters of decisions, do effectivly "amend" the constitution. te commerce clause, which states that "Congress has the exclusive authority to manage commerce between the states, with foreign nations, and Indian tribes" had been used by the scotus to prevent most federal managment of the economy. the Hughes court had been blocking many of FDRs New Deal programs, finally after the 36 election and the "court packing" threat, several members of the scotus changed their votes allowing for NLRB, the fair labor standards act, agricultural subsidies, etc. it fundamentally changed the meaning of our government.
our constitution is not very flexible. most constitutinoal change occurs in flurries of amendments, and reinterpretation of old laws with the arrival of new justices. usually this occurs in conjunction with a popular mandate for change.
i'll make it simple:
in fdr's case the court was standing in the way of a popular mandate for change.
in bush's case the court was contrived to do the exact opposite, though it has not yet succeeded
Posted by: Thomas Cox | Jun 26, 2008 8:44:09 PM
Steven Maurer - your 5:41:22 post echoed my thoughts. The Bill of Rights was created by people deeply skeptical of big unlimited government. They seriously contemplated having no professional army at all. They had just overthrown an oppressive government and were worried that the new one might grow oppressive in turn. (These were points the Federalists and Anti-Federalists largely agreed on.)
They very much wanted to ensure that "the people" could, if it proved needful, rise up again in armed revolt against their own government.
As for Chuck Butcher suggesting that the Founders couldn't possibly have intended to protect cannon or other crew-served weapons, note that the Battle of Lexington and Concord was sparked by a British move to seize an arsenal of privately owned cannon.
A third poster, Kevin, incorrectly says "The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens." This is one of those statements that's so clearly untrue that it marks the writer as either so ignorant of the facts as to be unworthy of attention, or dishonest and attempting to mislead the uninformed. My thanks go to two other posters who set the record straight - DC's laws banned all possession of handguns, and they required rifles and shotguns to be stored in a manner designed to make them useless for self-defense. (Under DC's laws, you couldn't even "transport" your own pre-1976 registered handgun from one room of your home to another without a separate license.)
The DC laws were designed specifically to disarm citizens and to prevent any form of legal self defense with a firearm. The SCOTUS ruled that the Second Amendment forbids the government from blanket disarmament of law abiding citizens.
The hysterical headline of this posting notwithstanding, the court did not "establish" any new right - nor did they strike down the 1938 federal law restricting ownership of machine guns, nor any other restriction short of a blanket ban.
If any of you dear readers would like to cease wallowing in ignorance regarding firearms, let me invite you to partake in handgun training by the Pink Pistols of Portland, the gay and lesbian shooting society. Straight people are welcome too.
Posted by: Hillabomination | Jun 26, 2008 9:06:28 PM
Here's the first fallacy of the Justice Stevens, Souter, Ginsburg, and Breyer dissent:
The parallels between the Second Amendment and these state declarations, and the Second Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania's 1776 Declaration of Rights announced that "the people have a right to bear arms for the defence of themselves and the state," 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that "the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed," id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed "[t]hat the people have a right to bear arms for the defence of themselves and the State." Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment's preamble. It confirms that the Framers' single-minded focus in crafting the constitutional guarantee "to keep and bear arms" was on military uses of firearms, which they viewed in the context of service in state militias.
In fact, hunting was the primary use for firearms in all 13 colonies (more animals were killed than people), while personal defense (especially near the frontier) was an important secondary use. The use of firearms by organized militias was viewed as a tertiary utility, and it was understood that each citizen was required to bring their own weapons. The framers knew that private ownership of firearms was necessary for hunting, and for citizens to defend themselves and their family from man and beast.
The framers did not anticipate "The State" (meaning any branch of State or Federal government) would seek to outlaw private gun ownership given their critical primary and secondary uses.
The framers feared that limited government could easily become hegemonic government, and knew that disarming the civilian militias (aka The People) would be a necessary precursor to subjugating them. With this fear of subjugation in mind, and the fresh memory of the pivotal role played by PRIVATE CITIZENS in defeating the British, the framers penned the second amendment:
"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 framers could not anticipate that future generations of urban Americans would doubt the utility or necessity of firearms for hunting or personal protection any more than they could anticipate that cars would eventually replace horses on city streets. The framers enumerated the militia only because they assumed this tertiary role (firearms in the service of militias) would be the one the The State would seek to infringe. So they said "don't infringe".
The framers assumed "the right of the people to keep and bear arms, shall not be infringed" was dispositive and did not require a definition of "the people", "Arms", or "to keep and bear". Their reference to "well regulated militia" was necessary only because they knew a hegemonic State would challenge the necessity of maintaining a militia, so they inserted a prefatory clause.
Posted by: t.a. barnhart | Jun 26, 2008 9:41:31 PM
Chuck, you are right in a lot of what you say, but there is this simple fact: guns make killing easy. stupid people, careless people, unsuspecting people, kids, drunks, punks, people scared silly by the news, momentarily enraged people, people who actually believe what they see in the movies and think guns are cool toys -- it only takes a moment to pull a trigger and destroy a life. the United State proudly wields two weapons are god-given rights and then uses them to slaughter tens of thousands of people and injure hundreds of thousands more: guns & cars.
maybe you can interpret a right to bear arms out of the 2nd Amendment; all i know is, guns take basic, normal human failures and turn them into irrevocable tragedies. which basic constitutional right does that fall under?
Posted by: Mr. DemocraTee | Jun 26, 2008 10:27:11 PM
And preventing law abiding citizens from owning guns would do NOTHING to keep criminals from owning guns.
Even if you made all the guns vanish, people will still be killing each other with knives, hammers, golf clubs.
If we adopted Saudi Arabian style corrections, recidivism drops by 98%. We could close half our jails and leave our doors unlocked, and gun ownership would go way down.
But if Libtards insist on punishing property crimes with probation and let violent offenders reoffend over and over again, the rest of us will seek to provide for our own defense.
The SCOTUS got this one right: too bad the dissenters let their politics get in the way of the U.S. Constitution.
Posted by: Steven Maurer | Jun 26, 2008 11:35:33 PM
It is not ironic, Mr.Tee (now with "Democra" inserted) that you, a strong property rights advocate, continue to make use of Mandate Media's servers, even though you have been banned from posting here because of your lying. Rather, the utter hypocrisy is completely expected, as it now seems to be the defining characteristic of Republicans.
Still, I have to point out that you gave me an unintentional laugh when you started praising Saudi Arabia's penal code. Clearly, you must not be aware that they've recently instituted (drumroll please)... gun control.
Your other made up falsities are too numerous and tiresome to refute point by point. But that first one was funny.
Posted by: Chris Lowe | Jun 26, 2008 11:49:05 PM
Chuck Butcher, I confess to have been extremely dense in understanding a point you have made repeatedly, distracted I think by your anger at persons not upholding the Second Amendment into thinking that was your point, rather than the result of it.
That point, I now see, is that the defense of any of the rights in the Bill of Rights is strengthened by defending each and all and the Bill as a whole. I think you're quite right.
Light dawns on Marblehead. Anyway, I hope you don't mind my restating it in case others have been misreading similarly.
Kurt Chapman, have a look at the Ninth Amendment -- it specifically says that the fact that rights aren't enumerated "shall not be construed to deny or disparage others retained by the people." The right to privacy is exactly such a right.
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It seems to me that this decision affirms an individual right to own weapons for self-defense (the Fourth Amendment also states a right "the people" that clearly is an individual right, btw, and "the people is distinguished not only from persons, but from states, Congress, and the United States elsewhere in the Bill).
It also seems that it doesn't actually address what meaning if any the militia clause retains in the present day, except to say that it does not contradict the individual right to own weapons for self-defense.
Yet those words are there too. What does the militia clause mean today. Oregon law defines the state militia as the Oregon National Guard. Is there a right to private militias?
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Posted by: Kurt Chapman | Jun 26, 2008 10:32:09 AM
Well, at least they didn't dream up a right that wasn't there ala Roe v Wade.