November 2, 2007
D.C. Gun Laws Move Closer to Day in Court -- Or Not
In the coming weeks District officials will find out whether a Court of Appeals decision that found the city's gun laws unconstitutional will stand or whether the U.S. Supreme Court will take up Mayor Adrian Fenty's appeal.
According to SCOTUSBlog, the justices of the Supreme Court will debate whether or not to take the case on November 9. Should they choose to, the two sides would argue before the court in February or March; otherwise, by mid-November city officials would be faced with the unenviable task of re-writing the District's restrictive gun laws to square with the decision handed down by the U.S. Court of Appeals for the District Circuit in March. That decision found that the city's ban on handguns was unconstitutional.
Much has been made of the city's brief to the Supreme Court, which attempts to dodge the larger question of whether or not the Second Amendment confers an individual right to own a gun (as opposed to a collective right, which is the standing wisdom) and instead limit the court to deciding whether or not a city with a history of violent crime can act to limit the ownership of certain guns for the larger public interest. Gun rights activists are hoping the court will instead take up the larger issue and finally decide what exactly the Second Amendment protects. Ultimately, should the Supreme Court decide to hear the case, they will announce what exactly it is they will be considering -- the city's more narrow question on the right to impose restrictions on ownership or the other side's broader interpretation of the intent of the amendment. Of course, the court could blend the two.
We're still mixed on what would be the better blessing for the District -- for the court to grant their appeal or to just turn it down. On the one hand, if the justices voted to take the case, the District would at least have a chance to save its gun laws, but at the expense of a monster case that could well reshape the national debate on gun control. On the other, should the court choose not to hear it, the city will have to deal with the more immediate problem of re-writing their gun restrictions, but other urban areas won't be forced to scrap their own gun regulations.
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Either way, DC needs to rewrite the law. It's just going to be a matter of how restrictive they can make it.
I don't think a rational person would have a problem with ownership being restricted to those over 21, never having been convicted of a felony, having no history of mental illness or domestic violence, and having mandatory training and gun locks. But the no-handguns-at-all and long arms being disassembled and scattered around the house has gotta go.
Then again, we are talking about DC, so I'm sure the Council will exempt themselves from any and all restrictions. I'm looking forward to seeing Jim Graham's ghetto fabulous bodyguard posse clad in muscle tees, booty shorts, and dual MP7s. It'll be like Huey Long on bad acid.
What is a 'collective right'? Do you have a collective right to an abortion? Do you have a collective right to free speech?
Please. The amount of lying that liberals do to promote their causes makes Larry Craig look honest.
Clearly it's in the DC Government's best interest to implement every possible restriction on gun ownership short of outright banning. That way, they get to create an elaborate, arcane, and EXPENSIVE bureacracy to register and track firearms and their owners. There's nothing wrong with this problem that expensive, pointless, and unenforceable legislation can't prolong.
HCE,
What "lying" are you referring to?
And the "collective right" comes from the idea that the Second Amendment protects the right to own a gun in the context of a militia, not simply as an individual. I don't necessarily agree with that view, but that's pretty much been the standing legal wisdom for a long time.
There may be some legal scholars who feel that way, but very few serious ones. Name any other right conferred under the Bill of Rights that is a collective right. Religion and association might both be collective rights, but they have their individual components as well.
The "collective" argument is a crock.
HCE, name any other right conferred under the Bill of Rights that begins:
"A well regulated militia, being necessary to the security of a free state..."
Now you can suggest that the standing legal wisdom is the product of some minority of the legal profession, but it might sound like hyperbole if you did.
I believe that there is room for debate here among reasonable people about interpretation; however, the BoR's overall economy of words suggests the well regulated militia clause wasn't intended to be glossed over.
In conclusion, don't be a dick.
I've always thought that freedom of the press is a collective right as well. There are far too many lone bloggers with dangerous opinions out there, hiding behind the 1st Amendment. Why should some pro-vivisectionist blogger be allowed to spread those hurtful lies about my helper monkey Diderot's gender identity? So what if he chooses to wear a Gautier corset and pink feather boa? It makes him feel sexy and desireable and that's what counts!
Not trying to be a dick here, but you left of the kinda important "the right of the People to keep and bear arms, shall not be infringed" part. And to a lot of people, prohibition counts as "infringe."
But this is what happens when you hire a hundred monkeys to write your material, and none of them are editors. Jesus, try diagramming that sentence! WTF is the farking SUBJECT?
1. Anyone who has taken 4th grade grammar knows that the beginning is a dependent clause.
2. Through numerous writings and speeches, it is fairly clear this was meant as an individual right just like the rest of the Bill of Rights.
If you are claiming that United States v. Miller (1939) is judicial wisdom, then I look forward to you arguing that segregation is dandy and abortion rights are a figment. Those were both the standing judicial wisdom of that time as well.
The "collective" argument is a canard that liberals keep repeating in hopes of making it come true. The fact is the 2nd Amendment confers an individual right that 'shall not be infringed'. Like it or not, if you want to strictly prohibit gun possession, you are going to need a constitutional amendment.
As a libertarian, this is the only right that I truly care about. The rest are meaningless when the government shows up at your door claiming you have been thinking, saying, doing naughty things they don't approve of.
HCE-
No need to be so snippy. You have a valid point for sure, one that will be debated should the court decide to accept the case. I personally side with the individual rights interpretation, though can see how the collective right argument came about.
I don't think it's accurate to call a "collective right" interpretation of the Second Amendment the "standing wisdom." Ever since Sandy Levinson published "The Embarrassing Second Amendment" in the Yale Law Journal (99 Yale L. J. 637 [1989]), the ever growing consensus, even among liberal constitutional scholars, is that the Second Amendment creates an individual right to gun ownership.
Monkey: I thought you moved to VA.
HCE, the "collective rights" theory is a 20th century invention. The 2nd amendment has never been anything but an individual right. The right is explictly reserved to the people because the people are the militia.
"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. ---Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
"I ask, who are the militia? They consist of now of the whole people, except a few public officers." ---George Mason, 1788
"The people are not to be disarmed of their weapons. They are left in full possession of them." ---Zacharia Johnson, 1788
"The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of. ---Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers, 2.
Supreme Court Justice Joseph Story wrote in his book Rules of Interpretation, "Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only when there is some ambiguity or doubt arising from other sources that interpretation has its proper office." Story also said that a preamble "...is properly resorted to, where doubts or ambiguities arise upon the words of the enacted part, [but] "...never can be resorted to, to enlarge the powers confided to the general government. It can never amount, by implication, to an enlargement of any power expressly given. It can never be the source of any implied power..."
U.S. Supreme Court ruling U.S. vs. Miller(1939) "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
Regardless of the final SCOTUS decision on the 2nd Amendment case, DC needs to revise its antequated advice for crime victims. As it is, their website continues to recommend that when faced with a mugger or home invasion, the victime should extend their arm while yelling, "Swiper! No Swiping!" three times. Personally, I've had much success with training Boots the Monkey to attach himself to the assailant's face and make sweet, sweet love to the thug's headholes. This provides the necessary diversion so that I can escape and obtain police assistance and, barring that, a video camera so that I can upload the footage to Youtube.
I provide this hard-won experience in the hope of making DC a safer and more entertaining place to live. Bon chance!
The collective rights view was born out of a judicial and political desire to justify laws denying freed slaves and black political civil rights agitators the means to defend themselves. There's certainly no basis for the collectivist view in the writings of the founders, that's for sure.
One does wonder how a collective right works; how can the collective enjoy a right if the individuals who comprise the collective can't exercise it?
The qualifier in the initial dependent clause of the 2A is merely a justification--the 2A in plain terms says "because the fit sometimes hits the shan and govt breaks down, the people will need a militia made up of ordinary citizens...and those folks are going to need to bring their own firearms since when the fit's hittin the shan, govt won't be there to dole them out." Or, more simply, because we need a militia, and a militia is made up THE PEOPLE, the people's right to have guns is protected.
Everywhere else the Bill of Rights uses the phrase "the people", it means private citizens. There's nothing in the dependent clause of the 2A that indicates anything to the contrary. It doesn't say "you can have guns if you're in the militia". It says because we need a militia sometimes, the govt can't take your guns away.
The SCOTUS upheld this view in 1990 in US v. Verdugo-Urquidez, in fact, stating that "the people" does indeed mean individuals. Besides, if the court really had held that the collectivist view holds water...in all of the other cases it's considered relating to the RKBA issue (the two Miller cases, Cruikshank, Verdugo, Presser, etc), if the court really subscribed to the collective rights view, they simply would have dismissed the plaintiff's cases by pointing out that they weren't militiamen--which never happened. The SCOTUS has never said "you don't have the RKBA because you're not in the militia."
An interesting note people should consider before throwing too much emphasis behind the Miller decision.
The fundamental issues related to the case were never truly decided because the Supreme Court remanded the case to the federal district court "for further proceedings", which never took place -- by the time of the Supreme Court decision, Miller had been killed, and Layton (the other guy charged) made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.
Also as this was 1939, with a depression still raging on, the lawyer for Miller (with his client dead) never paid to travel from Arkansas to show up for court so I am sure the proceedings were a bit one sided.
OK. there are well meaning defenders of the right of individuals to keep and bear arms, but this point MUST be stressed: the so-called Bill of Rights does not confer s single right. Rather it protects pre-existing rights by limiting the power of government over individuals. You should all read the preamble to the Bill of Rights (yes there is such a thing). The presumption is that rights come from God. The Bill of rights simply enumerates certain natural rights with a disclaimer in the 9th amendment for all unenumerated natural rights.
The Bill of Rights, so-called (by us) protects individual rights by limiting the power of government, and contrary to popular thought, limits both federal and state authority---no point in a statement offerng protection only aginst federal abuse.
As to the militia clause, which is a dependent clause and also known as the restrictive clause, it refers to the militia, which to the founders was NOT a professional force, but the body of the people (well, white males anyway---back then) who had arms to possible fight against tyranny even if by their own government.
The independent clause states the individual right and stands alone. Anyone who has read the original submission of what is now called the Second Amandment and the proceedings/minutes of the Constitutional Convention of 1787, would see why they changed the words and their intent for it. It had nothing to do with a state's "National Guard." furthermore the use of the term, "well regulated" had a differnet meaning then. Actually it is still a lesser meaning but back then to regulate something meant to put in good working order. So, the founders were referring to a public well trained in arms to protect against tyranny.
Any arms, anytime, anywhere! If a bad guy tries something, the armed public will quickly supress the bad guy's action, now won't they? An unarmed public may still meet the acquaintence of the bad guy, but they won't be able to prevent him from indescriminately killing his victims. What is so difficult about this concept?
I hope the Supreme Court hears the case, thus gambling on the hopeful outcome that finally the question of an INDIVIDUAL right will be established, and this president will then have a profound effect nation wide. But, as a former DC resident, I fail to see how this now Unconstitutional law had any practical effect. Nor would it have practical effect, in the remote chance it’s reinstated. As a DC resident, I kept loaded hand guns readily available at home, in deliberate defiance of this law, and was always armed whenever I left the house. Most of my friends also defied this law. So in terms of practical enforcement, for many people this law ceased to exist from its inception. I now live in another State but continue to carry a gun “illegally” under the premise: “better judged by 12 than buried by 6”. Sometimes, it’s necessary to become a “criminal” to defend yourself against CRIMINALS.
Interpreting the Constitution and Bill of Rights should be no different than interpreting the King James Bible. It should be taken in it's most literal sense of what was written. Not to be allegorized or liberalized due to modern times or considered to be needing change due to varying cultures that we live with. Everything in the Constitution and Bill of Rights point to all rights as being individual rights. If the term "collective" is to be applied to the second amendment, then it must also apply to all of the amendments. When the amendment says: "The right of the people to bear arms shall not be infringed", that is exactly what it means! Those words meant the same thing in our founding fathers day and age as what they mean now. There is no difference.
What seems to be forgotten by some here is that when the Second Amendment was written the "militia" was meant to provide its own weapons. This seemingly forgotten detail indicates that the "right" is an individual right. The idea of the Bill of Rights giving rights to the government is also a bit strange since the rights were intended to protect the individual citizen from the force and power of the government.
So many of you DC folks are like the proverbial passive frog getting cooked in a gradually heated pot.
Immagine any normal jurisdiction, well armed and peacefully uninviting as an abode for street thugs, suddenly invaded by your little street darlings. And the administration and the police chief decide that the appropriate and enlightened response is to disarm all law abiding citizens. Would the lid not blow off of such a place?
I do hope for at least a partial restoration of 2nd ammendment rights to law abiding residents of DC via successful litigation, but I'm also glad that a few places with gun bans and buffoon cops and administrations are there as glittering jewels of bad policy for the rest of us to contemplate.
"CAN WE TALK"?
If the buffoonish DC government wants to continue to compromise constitutionally defined civil rights and liberties of US citizens in the name of violent crime abatemant, why not compromise the ones that actually will reduce the numbers of predatory thugs roaming streets and invading homes. Such as:
---Racial and demographic profiling of likely criminals and the elimination of a requirement for probable cause before making an apprehension.
---mandated abortions of illegitimate male fetuses from demographic or racial groups having a high probability of producing violent criminals.
---charging drug dealers with murder for any death directly or indirectly resulting from their merchandise, and apply the death penalty.
But of course none of this will ever fly in DC, or anywhere else in the US nor should it. But should "Pontius" Fenty, Bloomberg, Daley, et.al, continue to be permitted to wash their hands of the blood of innocent, and LEGALLY but UNCONSTITUTIONALLY disarmed and made vulnerable, law abiding citizens?
Perhapps we should study some of the methods Dr. MLK used to address the injustices of his time. In any case folks, it's time to get serious about this!
So many of you DC folks are like the proverbial passive frog getting cooked in a gradually heated pot.
Immagine any normal jurisdiction, well armed and peacefully uninviting as a thug abode, suddenly invaded by your little street darlings. And the administration and the police chief decide that the appropriate and enlightened response is to disarm all law abiding citizens. Would the lid not blow off of such a place?
But I'm glad that a few places with gun bans and buffoon cops and administrations are there as glittering jewels of bad policy for the rest of us to contemplate.
As regards "the larger question of whether or not the Second Amendment confers an individual right to own a gun (as opposed to a collective right, which is the standing wisdom)" please note that the "standing wisdom" does NOT support the "collective rights" view; the vast majority of Constitutional scholars, both liberal and conservative, agree that the Bill of Rights recognizes (not "grants") INDIVIDUAL RIGHTS.
And if you're "still mixed on what would be the better blessing for the District" because (in the event the case is heard) "the District would at least have a chance to save its gun laws" then you haven't been paying attention. Why would you want to "save" laws that disarm only the 99.7% of people who commit no crimes, especially when such policies have already contributed to making D.C. one of the most dangerous cities in America.
Wise up!