[luke warm]

well, any thought? any bets on how the court will rule? can a local gov't prevent its citizens from keeping hand guns in their homes? should the gov't be so allowed?

edit for gerben: sometime in the '70s, washington d.c. passed a law forbidding its citizens from keeping hand guns in their homes... the law was recently challenged and subsequently overturned in federal court, and d.c. appealed to the u.s. supreme court

[Gerben42]

Can you give more details, I'm sure most of the posters have no clue what you are talking about.

Anyway, if the federal government allows you to have hand guns in your house, I don't think the local government can forbid it. But if someone gets hurt because of your (in my personal opinion stupid) decision to have one of these around, you are responsible for it.

[Winstonm]

The hand-written version of the second 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 qualifying phrases that explain the law do not change the law - the right to keep and bear arms is not dependent upon a well regulated militia, rather a well regulated militia is dependent upon keeping and bearing arms. Gun control should require a constitutional amendment to either repeal or modify the second amendment instead of having the Supreme Court attempt to interpret extremely plain language.

[kenrexford]

I find it humorous how the Supreme Court analyzes things.

The Supreme Court has discounted our expectation of privacy in our cars and has allowed officers to conduct warrantless searches of vehicles for amazingly minimal cause. The rationale actually involves the consideration that, when the Framers drafted the Constitution, U.S. Marshalls were allowed to stop horses and wagons in the hinterlands, without warrant, to search them to find untaxed rum and other contraband. The justification back then was that it would take too long to ride a pony across the mountain pass to the frontier town with a magistrate for a warrant. Now, with cell phones, wireless internet, and the like, we are using this same theory to justify invasions of tinted-window vehicles, locked boxed inside those vehicles, and passengers in the vehicles. The right to privacy is essentially dead for vehicles. Oh, and when assessing the "expectation of privacy" in a vehicle, consider whether you have ever heard of wagons in 1781 being known as places where pilgrim teens would do the nasty.

So, let's look at the Second Amendment. The right to bear arms is in part to ensure a good militia. Well, I'd venture that an effective militia these days would need modern weaponry, eh? No sense fighting invading aircraft with a 12-gauge. It seems that the theory parallel to the wagon-vehicle scenario would suggest that the Second Amendment covers anti-aircraft weapons, anti-tank weapons, grenades, flame-throwers, and maybe even some nice sarin gas.

I doubt that the Nine would ever bite on that theory.

[Mbodell]

Winstonm, on Nov 21 2007, 03:14 PM, said:

The hand-written version of the second 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 qualifying phrases that explain the law do not change the law - the right to keep and bear arms is not dependent upon a well regulated militia, rather a well regulated militia is dependent upon keeping and bearing arms. Gun control should require a constitutional amendment to either repeal or modify the second amendment instead of having the Supreme Court attempt to interpret extremely plain language.

Even if it were true that the militia part wasn't a key part of the rights, a position that the courts have never taken, until the recent 2-1 ruling in the Heller case that doesn't imply no gun control. Rights are generally not absolute. If the gov't has a compelling case it can, and does, limit rights.

My guess is due to the politics of the current courts they will rule in favor of Heller. The thing I think that is more unclear is if they will eliminate all state's rights to make similar rules or will say that the federal gov't is unable to make these type of rules and that this means the federal gov't, in its role in charge of DC, will not be able to make these restrictions in DC but Ohio could choose to have similar restrictions.

But I am not a lawyer or judge and it isn't clear anyone really knows.

[kenberg]

This is one of the many things jn life that i am unsure of.

I cannot possibly supply any legal insight that has not been given many times. Instead, Ill say a few words about whether folks should be allowed to own guns, I have the uneasy feeling that I have said some of tis before.

Sixty years or so ago my parents rented out the top floor of our house to a divorced woman with a couple of kids. One evening her drunken ex showed up banging on the door demanding to be let in. My father was not at home. I have a clear memory of my mother standing there with a shotgun in her hands explaining to the guy he should go away. If we went back to my house I could show you where i was standing and where my mother was standing. It's a very clear memory. He went away. Agood move on his part.

I think many people who advocate gun control live in circumstances much like I do today. I need a gun? For what? Maybe to shoot the deer that chew up out garden. To say I don't need a gun is not to say that a person living in different circumstances does not need one.

The case in DC (i live an hour or so away) involves a guy who wanted a gun for protection at home. I can tell you there are neighborhoods where I would want one as well if by some horrible twist of fate I were to find myself living there. Of course I realize that a gun may not help, that it may do more harm than good, and so on. Still, in life or death issues, who gets to decide, me or some legislator living where he can say he doesn't need one.


I favor strong regulation of guns but until we are all living in safe areas I would be uneasy taking the responsibility for telling a sane adult that I have decided it is better for him to not have one.


As to the constitutional issue, the writers could have helped a lot by being clearer. Presumably when they added the qualifying phrase they had some purpose in mind. I believe, historians may sat otherwise, that towns have over the years restricted the bearing of arms. Often, I think, this was a practical solution to a difficult problem in times that were not so tame. There is something to be said for respecting historical interpretation. A single sentence in the Bill of Rights does not provide a good basis for a balanced and practical approach. But my hope is that somehow we can allow people reasonable choices for self-defense while still stopping a mob from hiking down the road carrying assault rifles.

[mike777]

From what little I read this should be one heck of a case.

It seems to involve the issue if an individual american, outside of the milita, has the right to bear arms? In other words does the right to bear arms belong to the PEOPLE?

[mike777]

Gerben42, on Nov 21 2007, 01:58 PM, said:

Can you give more details, I'm sure most of the posters have no clue what you are talking about.

Anyway, if the federal government allows you to have hand guns in your house, I don't think the local government can forbid it. But if someone gets hurt because of your (in my personal opinion stupid) decision to have one of these around, you are responsible for it.

Gerben your post is excellent. It really hits home, where do rights come from? Do rights come from the Federal government? In other words.....the PEOPLE can do whatever as long as the Federal government says it is legal and the Federal Government grants that right....or do the Rights come from the People......and the Federal government can only do what the PEOPLE allow it to do?

[Winstonm]

Mike and Gerben,

I don't see how the concept of rights can be debated in U.S. law when the constitution seems quite clear on the matter.

10th Amendmnet

Quote

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.

I don't see much wiggle room here unless it is in expanding the definitions in the federal government's specified rights - which is what has happened. To be truthful to the original law, though, the rights of the federal government are limited and documented in the constitution, with the states or the people having all other rights.

It doesn't seem to me hard to understand.

[kenberg]

mike777, on Nov 21 2007, 10:43 PM, said:

Gerben42, on Nov 21 2007, 01:58 PM, said:

Can you give more details, I'm sure most of the posters have no clue what you are talking about.

Anyway, if the federal government allows you to have hand guns in your house, I don't think the local government can forbid it. But if someone gets hurt because of your (in my personal opinion stupid) decision to have one of these around, you are responsible for it.

Gerben your post is excellent. It really hits home, where do rights come from? Do rights come from the Federal government? In other words.....the PEOPLE can do whatever as long as the Federal government says it is legal and the Federal Government grants that right....or do the Rights come from the People......and the Federal government can only do what the PEOPLE allow it to do?

" do the Rights come from the People" you ask. Perhaps, but which people and what is the mechanism?

The rights under question, whatever they may be, come from the Constitution. Back in 1787 we wrote a Constitution, and then quickly added ten amendments, listing rights and, perhaps, setting bounds on rights. (Yes, of course I know that you know.) But then it isn't quite so simple since someone has to decide what these sentences mean in practice. As I understand it, the Commerce clause has been taken to grant some pretty extensive powers. More than would likely be expected if we were to concentrate on the Tenth Amendment that Winston mentions.

In theory we the people could hold another Constitutional Convention and rewrite it. As I recall there was a brief flurry of sentiment twenty years or so ago for doing just that. But we won't. So for the foreseeable future, the power will be from the Constitution, written by people but not currently alive people, interpreted by Supreme Court Justices, who will most likely pay at least some heed to the views of their predecessors.

Actually, I'm pretty comfortable with the idea of the Constitution, interpreted by the Supreme Court, being fundamental and trumping "the will of the people", whatever one may take that to mean. I don't think the Justices should find things in the Constitution that plainly are not there, but some sort of interpretation seems inevitable. The right to free speech presumably doesn't include the right to aim monster speakers at my house and force feed me information 24/7. The right to bear arms presumably doesn't include nukes. It's reasonable to interpret these rights as the right to say what you think and to provide for some type of defense (whether the defense is personal or militia is to be debated).


I would not place any heavy bets on how this case will come out. But then I have had no legal training whatsoever.

[mike777]

"Actually, I'm pretty comfortable with the idea of the Constitution, interpreted by the Supreme Court, being fundamental and trumping "the will of the people", whatever one may take that to mean:



Well this is a whole other thread.

[helene_t]

Seems clear that Winston is right. Wonder how this can be an issue.

[mike777]

As I understand the issue is as I framed it before.

Do individual Americans outside of the militia have the right to bear arms.

To put it another way...is this a right or is it a privilege.

The courts have ruled driving a car is a privilege not a right so they can force adults to wear seatbelts or motorcyclists to wear helmets to protect themselves even if they do not want to.......in other words they do not have the right to risk their lives in this way. The government can step in and tell them if they drive they must do it the way the government says even if it pertains only to their lives and not others.

As I understand it the Supreme Court has never ruled on this right to bear arms issue.

[Winstonm]

mike777, on Nov 22 2007, 11:41 AM, said:

As I understand the issue is as I framed it before.

Do individual Americans outside of the militia have the right to bear arms.

To put it another way...is this a right or is it a privilege.

The courts have ruled driving a car is a privilege not a right so they can force adults to wear seatbelts or motorcyclists to wear helmets to protect themselves even if they do not want to.......in other words they do not have the right to risk own their lives in this way. The government can step in and tell them if they drive they must do it the way the government says even if it pertains only to their own lives and not others.

As I understand it the Supreme Court has never ruled on this right to bear arms issue.

Mike, I think you are walking around the edges of the true debate - not intentionally so don't take that the wrong way, please.

Mode of transportation is not a subject of the constitution; however, keeping and bearing of arms is addressed. The real crux of the matter is whether the commerce clause can be extended to in essence eliminate another amendment's rights guarantee.

No matter which way you slice it - my belief is that the qualifying phrase simply explains the right - others believe the qulifying phrase grants the right - either way, the fact the no malitia is presently used in no way undermines the authority of the amendment. This would be like saying that forcing 18-year-olds to register with selective services is overturnable because at present there is no draft.

The only real way - IMO - to get around the 2nd amendment is via the commerce clause, whereby the government could impose regulations so strict on the sale of guns as to be a de facto breach of the 2nd amendment. And I believe this is where the debate has to go - otherwise, gun abolishment seems a mute issue.

[Winstonm]

mike777, on Nov 22 2007, 10:50 AM, said:

"Actually, I'm pretty comfortable with the idea of the Constitution, interpreted by the Supreme Court, being fundamental and trumping "the will of the people", whatever one may take that to mean:



Well this is a whole other thread.

Mike, are you as comfortable with the idea of the Constitution, interpreted by the Supreme Court, being fundamental and trumping "the will of the federal government" - meaning going beyond the bounds of Consitutional restraints on the federal governmnet?

[blackshoe]

mike777, on Nov 21 2007, 10:39 PM, said:

From what little I read this should be one heck of a case.

It seems to involve the issue if an individual american, outside of the milita, has the right to bear arms? In other words does the right to bear arms belong to the PEOPLE?

USC 10:311 said:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
( The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

It seems likely, although I haven't checked the details, that Mr. Heller is a member of the militia.

Rights adhere to individuals, not groups. Also, rights are inherent - they are not things that a group can grant or take away at whim.

What the second amendment says, in plain English, is that the right of individuals to keep and bear arms - any arms - shall not be infringed. That every level of government in the United States from the Federal down to the town violates this amendment does not change what it says.

USC 32:311 has to do with age limitations for appointment to the National Guard, and provides that one might be appointed a member of the NG even if over 45.

[mike777]

Shelly Parker, et al. v. District of Columbia and Adrian M. Fenty (pending appeal as District of Columbia v. Heller and Shelly Parker, et al. v. District of Columbia and Adrian M Fenty), 478 F.3d 370 (D.C. Cir. 2007), is a case in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to strike down a gun control law for reasons based on the Second Amendment to the United States Constitution, and the second to interpret the Second Amendment as protecting an individual right to bear arms; the first being United States v. Emerson 5th Cir. (2001).

The 2-1 decision in Parker struck down parts of the District of Columbia Firearms Control Regulations Act of 1975, which is a local law enacted pursuant to District of Columbia home rule. The law is controversial because it limited the ability of residents to own side arms. This law restricted residents, except active and retired law enforcement officers, from owning handguns, while also requiring that rifles and shotguns be kept "unloaded, disassembled, or bound by a trigger lock."[1]

In April 2007, the District and Mayor Adrian Fenty petitioned for a rehearing from the full court of appeals on the grounds that the ruling creates inter- and intra-jurisdictional conflict.[2] On May 8, 2007, the Federal Court of Appeals for the D.C. circuit denied the request to rehear the case, by a 6-4 vote.

Supreme Court review
Both the defendants and the plaintiffs petitioned the United States Supreme Court to hear the case. The questions posed for review by the petitioner (the District of Columbia) differed significantly from those posed by the respondent (Heller). The District of Columbia's petition stated that the question presented was, "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." Heller replied that the question was broader, to wit, "Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes." As discussed below, the Supreme Court adopted neither question, but came closer to the question posed by Heller in framing the question to include review of the District's prohibitions against possession of all types of firearms, and not just handguns.

On September 4, 2007 the District of Columbia and Mayor Fenty petitioned the Supreme Court to overturn a portion of the lower court's ruling. The Washington Post noted that most legal experts believed the Supreme Court would likely accept the case. Now that the Court has granted certiorari, this will likely be the first time since the 1939 case United States v. Miller that the Supreme Court has directly addressed the scope of the Second Amendment[3]

On September 10, 2007, five of the original plaintiffs in the case cross-petitioned the Supreme Court to reinstate their legal claims against the District. The appellate court ruling held that of the original six plaintiffs, only Heller had the necessary standing to challenge the law. The five plaintiffs other than Heller now ask that the court restore their case against the district. [4]

On November 20, 2007 the Supreme Court agreed to hear the case.[5] The court has rephrased the question be decided as follows:

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?


[edit] Summary of Circuit decision
The Court first addresses whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12), and it concludes that Heller (who applied for a handgun permit but was denied) has standing.

“ Essentially, the appellants claim a right to possess what they describe as "functional firearms", by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.[6] ”

The Court's own summary of its substantive ruling on the right protected by the second amendment is given on page 46 of the slip opinion (at the end of section III):

“ To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia. ”

The court did specifically find that "Once it is determined - as we have done - that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" while at the same time allowing reasonable regulation: "That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."


http://en.wikipedia....ict_of_Columbia

[mike777]

On November 20, 2007 the Supreme Court agreed to hear the case.[5] The court has rephrased the question be decided as follows:

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?


http://en.wikipedia....ict_of_Columbia

[jtfanclub]

blackshoe, on Nov 22 2007, 03:14 PM, said:

What the second amendment says, in plain English, is that the right of individuals to keep and bear arms - any arms - shall not be infringed.

Cheap Russian suplus 155mm howitzers? Human Anthrax? Nukes?

What if (as I heard theorized somewhere) that if you dropped a nuke into Old Faithful it would destroy much of the Midwest, due to a gigantic fault line that's stayed quiet until now? What do we say...you had a right to carry a nuclear weapon to Old Faithful, and if you kill millions of people with it we'll arrest you?

There must be some line between weapons too dangerous for individuals to walk around with and weapons that you can bear in case you get called into a militia. I don't think the Constitution says where that line is.

[mike777]

I don't think any sane American is saying the right to bear arms is unlimited, just as the right of freedom of speech and expression is not unlimited.

As I said the main issue here seems to be is there an "Individual" right, outside of the whole militia issue, to bear arms just as there is an individual right to freedom of speech.

If there is such a right then I would think that government has very a limited ability to restrict that right such as for public safety.

Of course that is a neverending debate what that may mean.