Right to Keep and Bear Arms

[The Chief]

There is a very interesting article in the May 2007 issue of “American Hunter” magazine. In the article, Author Chris Cox, NRA-ILA Exec Director, provides what I think is a very insightful analysis of the ruling by the U.S. Court of Appeals, that inter alia, the Second Amendment does in fact confer rights of individuals to own and carry firearms.

Of course the fight is not over. Clearly, IMHO, it is headed for the SCOTUS, in due time. Fast tracked it could get there by late 2007 and heard by mid-2008, before the National elections. Opponents of the ruling favor a much slower progress.

Write to your elected representatives early and often, for or opposed, make your views known.

 

[statesman]

Thankfully though the Supreme Court has time and time again upheld the notion of private gun ownership. there are at least 6 cases in which the court aggressively upheld the 2nd amendment.

I personally don't see a Supreme Court case coming up anytime soon just because there has been so much precedent. The court usually doesn't accept cases which resemble cases they have already ruled on.

That being said the most probable case to see the supreme court any time soon would probably be something regarding the confiscation of guns in New Orleans during the aftermath of Katrina. I certainly hope that does go up before the court. Last I heard it was in a lower court and being appealed up the chain.

 

[PropStop]

I don't see why it's confusing at all.

 

[White_Male]

I couldn't help posting on this issue because this is basically what I am writing on for my senior paper. I think the original post was referring to Parker v. DC. It is a very, very interesting read. Highly recommend it. There is a bunch of stuff in there about whether there is standing and how the fact that the issue came about in the District of Columbia rather than a state. However, there are 30-40 pages in there analyzing the Second Amendment which are superb.

Here is a link. http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

Another interesting note: I don't think there have been very many cases (if any) striking down a law as unconstitutional because it is violative the Second Amendment. I believe that is why this case is such a big deal.

 

[The Chief]

.... Another interesting note: I don't think there have been very many cases (if any) striking down a law as unconstitutional because it is violative the Second Amendment. I believe that is why this case is such a big deal.

Yes, Parker vs DC. You are correct, this is a big deal. Couple of notes on why I think it is big. This has been a long time coming. My thoughts.

A. SCOTUS has not even heard a Second Amendment case in at least 70 years. And never ever a direct, head-on case. To me the Tea Leaves say they will indeed, in the end, issue a certiorari in the case.

B. Most lower court cases involving the Second Amendment have been an outgrowth of another case which involves a defendant trying to use the Second Amendment as a defense. Made it easy for the lower courts to finess it's way out of addressing head-on, the issue.

C. In this case, Mr. Parker, et al, simply tried to register a firearm in DC and they were told no, because of the law, they had no right to own or bear arms. Makes the flavor of the case very different from others.

D. Parker is funding the case from his own deep pockets, ergo beholding to no one.

E. Silvermann's outstanding review and decision on the case coupled with political timing give it some very long legs.

F. DC cannot accept the Circuit Courts decision on the case, and must appeal, although many are encouraging the DC Government to fold and not force it to the SCOTUS. Parker's primary objective,of course, in my view, is to force it all the way up to the high court.

G. Several members of Congress, from several states, are introducing/planning legislation that will address the constituional right to own firearms.

H. DC's position seems to be that they are not a State, ergo the amendment does not apply. All well and good, but the Bill of Rights apply to individuals rights, not States rights. Similar to the issue of Eleanor Holmes Norton, DC Representative in Congress who when she was caught by the IRS said that about taxes, which she did not pay until elected and then it was revealed she had paid no income taxes for many years.

Sorry for the long winded expression of my views. My original intent was for those interested in the subject to look at "American Hunter" for a very good article on the subject.

 

[Steve Wilkins]

Yes, Parker vs DC.

H. DC's position seems to be that they are not a State, ergo the amendment does not apply. All well and good, but the Bill of Rights apply to individuals rights, not States rights. Similar to the issue of Eleanor Holmes Norton, DC Representative in Congress who when she was caught by the IRS said that about taxes, which she did not pay until elected and then it was revealed she had paid no income taxes for many years.

That's exactly what my position would be as well if I were representing the government. Be careful about how you apply your interpretation of the Bill of Rights to individual liberties. The purpose of the Constitution is to delegate certain powers to the federal government of the United States. Because many people thought the government might overstep its bounds, they wanted to see in writing a guarantee that certain rights would be protected. The Bill of Rights was not meant to define each and every one of our rights. They serve to elaborate on the Constitution as to what the government (federal) can and cannot do. Only through the Fourteenth Amendment do the Bill of Rights apply at the state level. Here's the problem. Washington DC isn't a state.

 

[Single Seat]

 

[insanebikerboy]

That's exactly what my position would be as well if I were representing the government. Be careful about how you apply your interpretation of the Bill of Rights to individual liberties. The purpose of the Constitution is to delegate certain powers to the federal government of the United States. Because many people thought the government might overstep its bounds, they wanted to see in writing a guarantee that certain rights would be protected. The Bill of Rights was not meant to define each and every one of our rights. They serve to elaborate on the Constitution as to what the government (federal) can and cannot do. Only through the Fourteenth Amendment do the Bill of Rights apply at the state level. Here's the problem. Washington DC isn't a state.

I'm confused by your post. Are you saying that the Bill of Rights are simply to limit the powers of the federal government? If so, does that imply that the individual states have the right to decide on the issue of the 2nd Amendment as it pertains to the individual (or any of the amendments, for that matter)?

Genuine question, not rhetorical.

 

[The Chief]

I'm confused by your post. Are you saying that the Bill of Rights are simply to limit the powers of the federal government? If so, does that imply that the individual states have the right to decide on the issue of the 2nd Amendment as it pertains to the individual (or any of the amendments, for that matter)?Genuine question, not rhetorical.

The point has been argued. Myself, no scholar on the subject, but find interesting reading in the "papers" from "the period". For example, the First Amendment was in part designed to prevent the Federal Government from disestablishing churches that had been established by State and Local Governments. To wit, at least six states, New Hampshire, Massachusetts, Connecticut, Maryland, South Carolina and Georgia all had Government established/supported churches. At least 11 states had litmus testsfor those holding office, that is non-christian and non-protestants need not apply.

The Second Amendment background is also interesting reading, often called the Military Amendment, hence the segue "A well regulated Militia, being necessary .... ", unique in all the Bill of rights, in that none other have an introduction.

The true genius of the document called the Constitution is that in cases of disagreement in the interpretation of what the language means, the cases are decided by the Supreme Court. The courts function is to interpret the Constitution in the context of contemporary society.

In my view, the first ten amendments to the Constitution, called the Bill of Rights are actually individual freedoms and are absolute. That is one vote in over 300 million.

 

[White_Male]

That's exactly what my position would be as well if I were representing the government. Be careful about how you apply your interpretation of the Bill of Rights to individual liberties. The purpose of the Constitution is to delegate certain powers to the federal government of the United States. Because many people thought the government might overstep its bounds, they wanted to see in writing a guarantee that certain rights would be protected. The Bill of Rights was not meant to define each and every one of our rights. They serve to elaborate on the Constitution as to what the government (federal) can and cannot do. Only through the Fourteenth Amendment do the Bill of Rights apply at the state level. Here's the problem. Washington DC isn't a state.

I just am shooting from the hip here... It seems that the "federal government" is, at least partially, Congress. Congress governs the District of Columbia. Does it not follow then that the bill of rights would apply to the District of Columbia even without the Fourteenth Amendment? Additionally, you will not find anyone saying that the Fourth Amendment does not apply in the District of Columbia or any other Amendment within the Bill of Rights other than perhaps the Tenth Amendment.

Here is a link to the Bill of Rights http://usinfo.state.gov/usa/infousa/facts/funddocs/billeng.htm

However, if I was arguing for DC then I would probably make the same arguments they made.

 

[White_Male]

I'm confused by your post. Are you saying that the Bill of Rights are simply to limit the powers of the federal government? If so, does that imply that the individual states have the right to decide on the issue of the 2nd Amendment as it pertains to the individual (or any of the amendments, for that matter)?

Genuine question, not rhetorical.

The Bill of Rights is applied to the States via the 14th Amendment, same as the rest of the Ammendments.

However, in the beginning, if I remember correctly, the founding fathers were debating whether a bill of rights should be included in the Constitution. The reason for this was that they figured that any powers that were not specifically granted to the Federal Government by the Constitution were automatically reserved for the states or the people. However, I think the they added the Bill of Rights, including the 10th Amendment just in case.

Edit: I just found out that there has not been a case applying the Second Amendment to the States via the 14th Amendment. Also, there are a few others which have not been applied to the states, but most have.

 

[statesman]

However, in the beginning, if I remember correctly, the founding fathers were debating whether a bill of rights should be included in the Constitution. The reason for this was that they figured that any powers that were not specifically granted to the Federal Government by the Constitution were automatically reserved for the states or the people. However, I think the they added the Bill of Rights, including the 10th Amendment just in case.

The reason the bill of rights exists is that Massachusetts (of all places) refused to ratify the constitution with out an explicit bill of rights. So in a sense you are right that many of the people at the Constitutional Convention weren't thinking it was necessary but a number of people wanted it.

The Bill of Rights is considered amendments because it was not actually included in the original document. Massachusetts agreed to ratify because they were promised a Bill of Rights within a certain number of years.

 

[Steve Wilkins]

The true genius of the document called the Constitution is that in cases of disagreement in the interpretation of what the language means, the cases are decided by the Supreme Court.

There's no genius there in that regard. Please show me where it says in the Constitution that the SCOTUS will be the final voice in disagreements of the document's interpretation. I can save you some time by giving you a hint: don't bother looking, because you won't find it.

 

[The Chief]

There's no genius there in that regard. Please show me where it says in the Constitution that the SCOTUS will be the final voice in disagreements of the document's interpretation. I can save you some time by giving you a hint: don't bother looking, because you won't find it.

Will concede "genius" as that is only my viewpoint (and others).

At any rate, stand by my statement that the article in the "American Hunter" is a good read and very interesting within the context of the Second Amendment.

 

[statesman]

There's no genius there in that regard. Please show me where it says in the Constitution that the SCOTUS will be the final voice in disagreements of the document's interpretation. I can save you some time by giving you a hint: don't bother looking, because you won't find it.

That was the Genius of John Marshall, not the writers of the Constitution.