ADDED: From WaPo's Robert Barnes:
For years, legal scholars, historians and grammarians have debated the meaning of the amendment because of its enigmatic wording and odd punctuation:
"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."
Gun rights proponents say the words guarantee the right of an individual to possess firearms. Gun-control supporters say it conveys only a civic or "collective" right to own guns as part of service in an organized military organization....
The court rewrote the question to say it would decide whether the relevant provisions of the city's law "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."
Posts
250 comments:
«Oldest ‹Older 201 – 250 of 250trumpit, so you consider the bill of rights to be ancient history? I certainly hope Thomas reviews ancient history when he makes his decisions. As stated a few times earlier, if you feel the 2nd amendment is dated, there is a process in place to update it. You just have to convince your fellow citizens your right.
jeff: e. volokh has posted some of his classic articles at volokh.com including the original intent of the drafters of the 14th amendment in 1868.
don't feel bad about covering some of the same ground. the whole "incorporation" doctrine is confusing and bears repetition.
Original intent is all that matters.
Guns for white men.
Not for the women or black people.
Trumpit - It is germane to understanding the 2nd to note that the right to keep and bear arms preexisted the Constitution as a right won in the English Civil War and codified in the Glorious Revolution as Common Law.
It is even more germane that the right to keep and bear arms is one critical reason why we we able to undertake a successful insurrection.
It it is supremely germane in context of the utter implausibility of the Convention meeting and deciding - with high concerns of tyrants from without and maybe arising within, hostile Indians, no police force, and 1/3rd to 3/8ths of households actively hunting for dinner - to decide to strip away existing rights to small arms under the Glorious Revolution Laws, Colonial Charters, State Constitutions as a freedom the colonists fought to lose in favor of a militia of government "doing all that"..
In fact, that argument is stupid beyond measure and usually comes from people not knowing the rights that pre-existed the Constitution and utterly misunderstood the Founders in favor of being on the wrong side of a comma or a little creative word-parsing today in doing a 180 from what rights the 2nd Amendment enumerates to "the right of the People" to critical freedoms in keeping with achieving the goals of the Preamble.
The Supreme Court settled this point as far back as Presser v. Illinois in 1886
In 1896, the Supreme Court held that state laws discriminating on the basis of race were Constitutionally permissible, so long as the treatment was "separate but equal".
So I guess that's settled. Brown vs. Board of Education must have been a mistake.
Luckyoldson: So you think those handguns and rifles we own...will offset the United States government, backed by the United States military...will handle things?
The U.S. Fish & Wildlife Service's 2006 survey stated, "An estimated 10.7 million hunters pursued big game, such as deer and elk..."
As of September 30, 2007, there was a grand total of 1,421,202 in the United States armed services (Army, Navy, Marines, Air Force, and Coast Guard).
Just counting big game hunters, the entirety of the United States military would be outnumbered 7.5 to 1.
The 11/21 Dilbert is about originalism.
Former law student wrote: "The second sentence is essentially meaningless. In 1886 it was settled law that NONE of the Bill of Rights protections could be enforced against the states. The first application of the 14th amendment to the states didn't occur till 1899."
What a strange result-oriented argument. By this logic, those who take the view that a particular right is incorporated into the Constitution and made applicable to the States can never lose; no matter how many times the Supreme Court says they are wrong. Instead, they always win, eventually, under your theory. That is treating the Constitution frivolously. It does not favour one political view over another.
The Supreme Court is just as authoritative when it says a right is NOT incorporated into the Consitution as it is when it says a right IS incorporated. It has said that the 'right to bear arms' is not applicable to the States.
Also, it was not 'settled law' that NONE of the Bill of Rights was incorporated. The Court does not issue blanket pronouncements like that and no case obviously presented the question of whether every right in the Bill of Rights was settled or not. All that was settled by 1886, on the usual case by case basis, was that the First Amendment, the Second Amendment, and perhaps a few others were NOT incorporated into the Constitution and made applicable to the States, despite the adoption of the Fourteenth Amendment. The decision with respect to the First Amendment was, obviously, overturned in the course of the 20th-century. The decision with respect to the Second Amendment has not been. That is the whole point; and that is why it is key to understanding the effect of the new case in the Supreme Court.
It is true that the 1886 Supreme Court issued a ruling in Presser that concerned an Illinois state law, but it did not base its ruling on the Second Amendment. That was held to be totally inapplicable in the clearest terms:
"The [second] amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542, 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government. . ."
You can't be more clear than that.
The fact that later Supreme Courts started to 'incorporate' other provisions of the Bill of Rights can hardly be said to undermine the effect of this clear ruling that the right to bear arms is not one of those rights. The Court has also ruled, in the 1960's that certain other rights are not incorporated. Would you deny precedential effect to those rulings as well, or just to ones that happened, by chance, to predate the first Supreme Court decision which went the other way, and recognized an incorporation affirmatively?
You can't pick and choose the Supreme Court decisions you wish to give effect to. The Supreme Court has rules on that, and under their rules, Presser, having never been modified in any way, still accurately states the law with respect to the Second Amendment.
Daryl said: "First, you're probably not even an American, what with your Commonwealth email address. . . That's such a British response."
I don't know whether I'm taken aback more by your Xenophobia or by your basic ignorance of the internet. In case you haven't heard, 'the internets' actually has a worldwide reach, and seldom replicates national borders. And so it is quite common for Americans such as myself, sitting at my home now in Austin, Texas to write emails on my British, as well as my Italian, and German email accounts.
But it is quite easy for Brits and Germans too to see the error in your comment; I'm surprised you can't. By the Court expressing signalling to us that it is only looking at the alleged 'right to bear arms' in the context of persons "who are not affiliated with any state-regulated militia", it makes crystal-clear that the Court is only reviewing the question of federal power, not of individual rights. When Heller is decided we will know someone more about the acknowledged 'right to bear arms' which exists in federal territories like DC. We will know nothing more about whether there is actually a 'right to bear' arms that individuals outside DC can claim.
Your claim that "Whether or not the Supreme Court will recognize an individual right to firearms ownership premised on the 2nd Amendment is the issue the Court will be deciding" is shown to be wrong just by reading the issue in the Court's grant of certiorari; something which I imagine foreigners can do better than you.
How many people here have used a gun to protect their family or others from an attack of any sort...and not while serving in the military or a police force.
About a year after I was married I was just going to sleep after coming home from working midnights. Wifey had just left for work. Heard some glass breaking and when I looked down the hall to my front door (which has those cute little windows in the frame) saw a guy's hand working the lock. Got my .45 and by that time he was halfway to my room. He didn't resist or try anything and was quite relieved when I called the cops rather than simply kill him which I was more than prepared to do if he so much as farted.
Cops took 15 minutes to get there BTW.
Your claim that "Whether or not the Supreme Court will recognize an individual right to firearms ownership premised on the 2nd Amendment is the issue the Court will be deciding" is shown to be wrong just by reading the issue in the Court's grant of certiorari
Well I am willing to agree with you on this one point, but for a reason you will probably disagree with.
In my opinion the wording at least suggests that the Court has already decided that there is an individual right to own a firearm, the controversies are:
1) What level of scrutiny should be applied to the regulation of firearms?
2) Should the Second Amendment be applied to the States?
and/or
Does the Second Amendment cover Washington D.C. since it is not a State and is administered by the Federal government?
The rate of private gun ownership and the restrictions on keeping it in your home (it had to be kept unloaded, in a locked case with the ammunition stored in a separate locked case and you were subject to frequent unannounced police visits to ensure you were complying),
Gee imagine the outcry in this country if Americans were subjected to frequent unannounced police visits to ensure compliance.
Rather makes a good argument for the right to keep and bear arms I would think.
So you think those handguns and rifles we own...will offset the United States government, backed by the United States military...will handle things?
Why not? As Freder has pointed out numerous times, a few rag tag insurgents in Iraq has wreaked the US Army and Marine corps in 5 years.
I always find it fasicnating that so many people think Bush has turned this nation into a police state yet would have absolutely no problem if he ordered all privately owned guns to be confiscated.
Gahrie
1) What level of scrutiny should be applied to the regulation of firearms
Where does the Constitution say that different rights get different "scrutiny." Or is this something the Sup Ct made up along the way? Where's Justice O'Connor when you need another three part, bi-lateral, too-complicated-for human-minds-to-comprehend "test?"
The guys who wrote the Constitution just finished a revolution where they, fortunately, had the weapons to kill off the bad guys (uh, the government). To think that they would have been in favor of letting feds, states, and local communities take away, or inhibit their rights to use, their weapons, is laughable. Anyone suggesting such a thing would have been laughed out of town.
Why not? As Freder has pointed out numerous times, a few rag tag insurgents in Iraq has wreaked the US Army and Marine corps in 5 years.
Umm no, Bush is the one who has wreaked havoc on the Army and Marine Corps. The damage the insurgency has been able to inflict to the military would have been relatively minor if the president hadn't been so incompetent and inattentive in maintaining materiel and expanding personnel levels.
And the insurgents in Iraq have AK-47's, mortars, RPGs, and an almost endless supply of high explosives that they obtained because they were able to loot military depots when we were unable to adequately secure them after the invasion.
Umm no, Bush is the one who has wreaked havoc on the Army and Marine Corps. The damage the insurgency has been able to inflict to the military would have been relatively minor if the president hadn't been so incompetent and inattentive in maintaining materiel and expanding personnel levels.
Yes of course. That's why we're being defeated in detail over there.
Exactly how much material have we lost?
Exactly how much material have we lost?
Just as an example, the backlog at Annistion is well over 1000 M-1s. So while not "lost" (in that they are damaged beyond repair), that is over 1000 tanks that are deadlined and unavailable to the military. There are similar backlogs for depot level maintenance at all the depots.
"sitting at my home now in Austin, Texas"
Makes even more sense than the assumption you were British. Isn't there a tower somewhere near you? In addition to the shootings, Whitman broke laws prior to the shootings. Gun laws would have done nothing to stop him (unless you would favor a complete and total ban, not just in law but in fact as well). On the other hand, we have Officer Martinez's assertion that the civilians blasting away at the tower should be credited with having limited the damage Whitman managed to inflict.
Regardless, had you been in Norriss Hall, would you have rather been armed or not? If you answer "armed," then I would assert you have common sense. If you answer "not," then I would assert you are not honest.
Just as an example, the backlog at Annistion is well over 1000 M-1s.
Obviously off topic but can you clarify something for me? Are you saying we have 1000 Abrams which are in need of repair or are these replacements or simply on order to augment existing inventory? When you claim the Army and Marines are ‘wrecked’ the implication is our troops do not have sufficient quantities of material or personnel in which to conduct operations.
I read a US Today report which indicated that of the 1100 hundred tanks we have had in Iraq since 2003, 89 were damaged badly enough to be sent back to the states for repair. Since 1991 we lost a total of 18 in combat. To me that is hardly an indicator that the military is wrecked unless you’re just fond of hyperbole.
BTW -- did you know that 90 percent of the Blackwater mercs in Iraq aren't Americans?
Source please?
Regardless, had you been in Norriss Hall, would you have rather been armed or not? If you answer "armed," then I would assert you have common sense. If you answer "not," then I would assert you are not honest.
Gee, while it may be simple to say "I wish I had a gun that day at Va. Tech" (we all have dreams of being the hero), the reality is of course much more complex.
It is very easy to imagine a scenario where (to paraphrase John Lott) "More Guns More Death". Say a significant number of students and faculty were packing and being brave Virginians as soon as they heard gunshots, instead of seeking shelter they all started rushing to the scene with guns drawn. Now of course no one would know who the crazed gunman is (I assume he wasn't wearing a t-shirt that said "crazed gunman, shoot me") and "armed citizens" as well as unarmed citizens might very well be killed in the confusion. Likewise, when the police showed up, they also wouldn't know who was who and might end up shooting people who were just trying to help out.
Before you tell me that my scenario is completely ridiculous and could never happen, it is exactly what happened in the Beslan disaster.
I read a US Today report which indicated that of the 1100 hundred tanks we have had in Iraq since 2003, 89 were damaged badly enough to be sent back to the states for repair.
89 may have been damaged by enemy fire, but like any extremely complex machine (and the M1 is the most complex tank ever designed), M1s simply wear out and must be overhauled. The M1 was not designed for the war in Iraq, it was designed as defensive weapon to fight the Russian tank armies in Europe. The tanks I am referring to are ones that are at the depot in Anniston (the only place where such work is conducted) for major overhauls (e.g., engine and transmission rebuilds, retooling the turret carriage, etc.). More than just battle damage can take a tank out of action.
The Anniston Depot (indeed all the depots) is still operating on a 40 hour workweek, a sign of the severe inattention this administration has paid to basic, but mundane tasks, like maintenance.
1100 seems an awful low number for the number of tanks we have had in Iraq. Is that correct? There are about a 1000 tanks in a fully equipped armored division.
"we all have dreams of being the hero"
I disagree. Some people clearly have dreams of being the victim. I notice you didn't answer the question. So is it safe to say that you would answer "not," since Beslan could happen here (though, of course, it hasn't). I also note that in your mind defending oneself from a rampaging murderer is "being the hero." Truly liberal societies (which, admittedly, we are not) do not force their citizens to be victims.
Okay Crimso, I'll answer your question if you'll answer the one I indirectly posed. Would you rather be in a situation where a bunch of people (one of them may or may not be a crazed gunmen bent on mass murder) are running around shooting at random because nobody is sure what is going and have a gun (and have to rely on a Barney Fife police force) or be among a bunch of unarmed people faced with a single gunman knowing that a well-trained and well-equipped police force is minutes or seconds away?
If you phrased your question that way I would choose the latter.
Changing the scenario a bit puts a whole new spin on things, doesn't it?
1100 seems an awful low number for the number of tanks we have had in Iraq. Is that correct? There are about a 1000 tanks in a fully equipped armored division
Going by what the report says. It was from 2005 so while it may be dated, I doubt the numbers increased all that much.
http://www.usatoday.com/news/world/iraq/2005-03-29-abrams-tank-a_x.htm
The Anniston Depot (indeed all the depots) is still operating on a 40 hour workweek, a sign of the severe inattention this administration has paid to basic, but mundane tasks, like maintenance.
By chance, is Bush personally overseeing operations at the Anniston depot? Or is there an administrator there who actually determines work schedules?
So again, if we have 1000 Abrams backlogged, is that saying we are short of armor in Iraq? I understand we have somewhere in the neighborhood of 8000 M-1s which leaves us 7000. Since we aren't needing them to protect Europe from the Soviet hordes, it stands to reason we have sufficient quantities left.
>By chance, is Bush personally overseeing operations at the Anniston depot? Or is there an administrator there who actually determines work schedules?
No, but as head of the executive branch he sets priorities. And I think there has been a general unseriousness on his part not only about Iraq but national security and other measures.
Also, it was not 'settled law' that NONE of the Bill of Rights was incorporated.
Fascinating. Have you never heard of the Slaughter-House Cases?
The Presser Court does no more than accurately state the effect of the Constitution on the states at that time, a century and a quarter ago. In that time, a tsunami of individual rights has been recognized and protected against state interference. So, while Presser still has precedential effect, it is as badly out of date as Plessy v. Ferguson.
Say a significant number of students and faculty were packing and being brave Virginians as soon as they heard gunshots, instead of seeking shelter they all started rushing to the scene with guns drawn.
When I looked into this a few years ago, I learned that this scenario seldom happens. The vast majority of times, people with concealed carry permits defend themselves, not other people. So, if a professor or student had been armed in one of the Vatech classrooms, s/he would have been able to fend off the attacker, who likely would have gone on to the next classroom.
"who likely would have gone on to the next classroom."
Not if the person confronting him knew how to use the weapon. He would have gone on to the morgue.
"Would you rather be in a situation where a bunch of people (one of them may or may not be a crazed gunmen bent on mass murder) are running around shooting at random because nobody is sure what is going and have a gun (and have to rely on a Barney Fife police force) or be among a bunch of unarmed people faced with a single gunman knowing that a well-trained and well-equipped police force is minutes or seconds away?"
Wel, put that way, I would rather be able to defend myself (which should be the most basic of human rights). Now, you could easily note that among the former was the Texas Tower shootings, and the latter the VPI shootings. Which had the higher death toll? It would be worth someone doing a study of how often the former occurs versus the latter, insofar as you could find examples that are the opposite of the two I noted. Knowing the relative likelihoods of the two situations might clarify the issue for some.
"who likely would have gone on to the next classroom."
Not if the person confronting him knew how to use the weapon. He would have gone on to the morgue.
You're not ready to go about armed if you don't understand in which situations self-defense/defense of others justifies a killing. Thinking like a vigilante does not persuade those who fear armed citizens.
I would hope that it would have been completely justified to have gunned him down, rather than letting him become someone else's problem.
The Sniper at UT fired for 96 minutes. It is inconceivable in this day and age that police response would be so pathetic against a static target. Look at the shock and criticism garnered at VT shootings where the gunman was moving around and nobody knew exactly what was going on or where the gunman was and the incident ended relatively quickly (although there was a time gap between the initial dorm murders and the shootings in the classroom building).
"The Sniper at UT fired for 96 minutes. It is inconceivable in this day and age that police response would be so pathetic against a static target."
Are you suggesting that he fired for 96 minutes because the police response was "pathetic?" I don't know this, but I'd bet that the response time was similar in both cases. And Whitman was certainly more heavily armed. Is it possible that at least part of the difference in death tolls was because at UT civilians were blasting back at the gunman (did any of them hit each other? I don't know) whereas at VPI they could only wait to see if they would die before police could get to them.
"and the incident ended relatively quickly"
Because Cho shot himself. Whitman was killed by the police. After 96 minutes. And keep in mind that no one is suggesting that the mentally ill (such as Cho and Whitman) be armed, though there certainly are people out there of the mindset that ANYONE who wants to be armed is mentally ill (or just some uneducated redneck, which some people also see as a form of mental illness).
Freder,
It is a bit over eight years since the Columbine school shootings, and the debate is still hot and heavy about the police response. I think the Sheriff's records were only released this year. (And then we had another shooting this year in Conifer, in the next county over).
Why did it take so long for the police/ sheriff to respond, and then for a SWAT team to get in place, and then for it to do anything?
Remember, this is a suburban high school, in a reasonably wealthy area of the most populous county in the state in the Denver metropolitan area of somewhere around 3 million people. In other words, the optimal situation where a SWAT team should have made all the difference - but didn't. By the time the police entered the HS, the perps were dead, as were many of their victims.
This thread makes me want to go out and buy more guns.
Why are liberals so bent on fearing the government EXCEPT when it comes to actually doing something to prevent tyranny?
"Before you tell me that my scenario is completely ridiculous and could never happen, it is exactly what happened in the Beslan disaster."
Making it an excellent example for not arming the police, OR not allowing the Russian security forces to handle our hostage incidents. Otherwise, not applicable. Your argument seems to be that you would rather have the certainty of a lone gunman shooting whoever he wants until the police show up, and make entry over the hypothetical of multiple gun owners blasting away randomly at anyone that moves. We know the first example happens. The second is still hypothetical. I vote with being wanting a gun under those conditions.
Feder, like most anti-2nd amendment folks, seem to believe their fellow citizens, given access to weapons, would explode with rage and shoot everything in site.
Why this hasn't happened in states with concealed carry laws, or even occurred with non-firearm weapons like fists, knives, baseball bats, cars, and explosives is unclear.
For them, guns are totemic; magical inanimate objects that transform normal people into lunatics by their mere presence.
Freeman Hunt: Why are liberals so bent on fearing the government EXCEPT when it comes to actually doing something to prevent tyranny?
Not liberals, leftists. Huge difference.
It is inconceivable in this day and age that police response would be so pathetic against a static target.
It isn't inconceivable if you're actually intelligent and pay attention to the world around you. The police rarely, if even, stop a mass killing. They continue until the shooter runs out of ammo, kills himself, or is stopped by would-be victims acting independently.
Some interesting reading in the comments at volkoh.com.
One possible interpretation of the 2nd amendment is that, like reading the 1st amendment as prohibiting the establishment of a national church and allowing individuals free exercise of religious beliefs, the 2nd could be read as prohibiting the federal government from disbanding state-approved (i.e. well-regulated) militias and allowing individuals to provide for their own defense with (fire)arms.
*That* would be a ruling that would cause a few heads to explode.
Why are liberals so bent on fearing the government EXCEPT when it comes to actually doing something to prevent tyranny?
Because in their hearts they believe that tyranny is defeated by whining at it.
"Because in their hearts they believe that tyranny is defeated by whining at it."
Or that they know in a just world they are in charge therefore by definition it can't be tyranny.
Freder Frederson said...
1100 seems an awful low number for the number of tanks we have had in Iraq. Is that correct? There are about a 1000 tanks in a fully equipped armored division.
way off.
I'm not up to date on the current BCT TOE's, but the classic L series Armored Divisions from the 90's had:
5-6 tank Bn's @ 58 tanks each
3 Cav troops @ 9 Tanks each (plus M-3's of course)
so the range would be 317-375 tanks in the heaviest units.
Where does the Constitution say that different rights get different "scrutiny." Or is this something the Sup Ct made up along the way?
1) It's not the rights that undergo scrutiny, it's the attempts by the government to regulate those rights.
2) Strict scrutiny is among a hierarchy of forms of judicial review long established in Supreme Court Jurisprudence.
3) Fundamental, individual rights get the most protection from the Supreme Court. Up until now, the Second Amendment right to own a firearm has not been included among those fundamental, individual rights. Thus governmental attempts to regulate firearms has had to undergo a lesser degree of judicial review than strict scrutiny.
so the range would be 317-375 tanks in the heaviest units.
Oops, I goofed, I forgot an armored division has one infantry brigade and two armored brigades and was just multiplying out three armored brigades--which still would have brought the total to less than 500, so never mind. That's what I get for doing math in my head. (I had the numbers right 13 in a company, 4 companies per battalion, 3 battalions per brigade, I just got lost somewhere along the line ciphering in my head)
Which of course means there are more than three full armored divisions worth of tanks awaiting depot level maintenance at Anistion.
Because Cho shot himself. Whitman was killed by the police. After 96 minutes. And keep in mind that no one is suggesting that the mentally ill (such as Cho and Whitman) be armed, though there certainly are people out there of the mindset that ANYONE who wants to be armed is mentally ill (or just some uneducated redneck, which some people also see as a form of mental illness).
Why of course nobody wants the mentally ill to be armed. But on the other hand, the NRA's position on gun control makes it absolutely impossible to keep guns out of the hands out of the hands of anyone with the means to purchase one (or steal one for that matter).
Feder, like most anti-2nd amendment folks, seem to believe their fellow citizens, given access to weapons, would explode with rage and shoot everything in site.
Now where on earth did I say this? I wasn't talking about rage at all. I was talking about fear and confusion.
And frankly Pogo, if you are so afraid of the big bad world that you think you need to carry a gun for self-defense then, yes, I do think you have a screw loose.
Why of course nobody wants the mentally ill to be armed. But on the other hand, the NRA's position on gun control makes it absolutely impossible to keep guns out of the hands out of the hands of anyone with the means to purchase one
I don't think so, Tim:
(CBS/AP) After 52 years in Congress, John Dingell knows it sometimes takes a "rather curious alliance," such as between the National Rifle Association and the House's most fervent gun control advocate, to move legislation.
That's what took place Wednesday when the House, by voice vote, passed a gun control bill that Rep. Dingell, D-Mich., helped broker between the NRA and Rep. Carolyn McCarthy, D-N.Y.
...
"We’ll work with anyone, if you protect the rights of law-abiding people under the second amendment and you target people that shouldn't have guns," NRA chief Wayne LaPierre told CBS News Correspondent Sharyl Atkisson
(or steal one for that matter). Although ten percent of cops shot to death on the job are killed with their own gun, robbing an armed person is relatively infrequent. Nor are guns commonly shoplifted. Nor do burglars target armed homeowners. All the gun owners I know lock up their guns.
If you know of a NRA pro-theft policy, please share it with the group.
Post a Comment