Supreme Court Strikes Down DC Gun Ban

The Founders punted on this (4.00 / 2)

The Pennsylvania Convention in 1787 proposed a much less fuzzy amendment:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals...

So the issues were all seen before the Bill of Rights was adopted. The Pennsylvania language provided much greater clarity:

1. It is both a collective AND an individual right
2. Both self-defense and hunting are acknowledged purposes of the right
3. Public safety can trump the right.

But that language evidently did not command a consensus, and they muddied things up.

---

by: elwood @ Thu Jun 26, 2008 at 16:20:34 PM CDT

As always (4.00 / 1)

I think the decision is worth reading on its own.

Here's a link to District of Columbia v. Heller

---

by: Alex Gallichon @ Thu Jun 26, 2008 at 17:25:43 PM CDT

I wonder a little bit (0.00 / 0)

with the 2nd Amendment notwithstanding, whether there would be an individual right to keep and bear arms protected under the 9th amendment as a preexisting right. Especially given that the majority opinion's basis for recognizing it as an individual right comes out of the history of English law and the rights of Englishmen.

I guess what I'm saying is I don't know where the news story gets the idea that there was a "long-held notion that the right to bear arms is strictly linked to militia service" when there is a much longer history (ie pre-1789) recognizing an individual right to bear arms.

---

by: Alex Gallichon @ Thu Jun 26, 2008 at 17:34:10 PM CDT

The Ninth, Alex (0.00 / 0)

If you read the Second Amendment narrowly, defining it as militia only, then the Ninth would not come into play, no?

I found the story's evocation of that "long-held notion" a little odd (as in, I've never heard that sincerely argued) , but I thought the context was necessary for the point that followed (which is definitely true, however one reads the Second Amendment).

("The Ninth, Alex?" Get it? Who's with me?)

---

by: JimC @ Thu Jun 26, 2008 at 21:20:49 PM CDT

[ Parent ]

Maybe (4.00 / 1)

but I was thinking if there were no second amendment at all.

The Federalist argument against a Bill of Rights: we can't mention everything, so we'll be limiting rights if we guarantee some.

The anti-Federalist reaction: the ninth "don't worry, we're not taking away rights by not including them here" amendment.

The interesting part, to me, is in this part of the opinion:

This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right...

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents...

Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant
enemies...

These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment...

By the time of the founding, the right to have arms had become fundamental for English subjects.Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, "the natural right of resistance and selfpreservation," id., at 139, and "the right of having and using arms for self-preservation and defence," id., at 140; ... Other contemporary authorities concurred...Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that "[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence."

---

by: Alex Gallichon @ Thu Jun 26, 2008 at 21:40:05 PM CDT

[ Parent ]

Interesting (4.00 / 3)

I still feel like Scalia double-deals when it comes to issues close to his conservative heart. If the founders wanted to express the fundamental right, I think they would say "Congress shall make no law ... "
 

---

by: JimC @ Thu Jun 26, 2008 at 22:04:27 PM CDT

[ Parent ]

Yeah, I wish I knew the history (0.00 / 0)

on how the very specific language of the PA Convention cited above, was made more vague.

Two possibilities come to mind: a) a gun rights faction opposed the PA language because it was too limiting; or b) a public safety faction opposed it because it was too broad.

---

by: elwood @ Thu Jun 26, 2008 at 22:13:02 PM CDT

[ Parent ]

In Heller (0.00 / 0)

they mention someone wanted to include the part about those being conscientiously scrupulous about bearing arms not being compelled thereto, like we have in the New Hampshire Constitution, which predates the federal one.

We also have clauses about the danger of standing armies, the militia being the natural form of a security to the state, and other ideas that have slimmed down equivalents in the national constitution. I don't think we had a specific right to bear arms in NH, but considering we have a constitutionally guaranteed right to revolution, it was probably unlikely that the idea would ever come up.

I wonder if something happened between the adoption of the NH and MA constitutions and the federal constitution that made the right to keep and bear arms part necessary, or if, maybe, southern (anti-Federalist) constitutions had it and wanted its guarantee in the national constitution.

---

by: Alex Gallichon @ Thu Jun 26, 2008 at 22:23:05 PM CDT

[ Parent ]

Article 2-a (0.00 / 0)

We do now, though, since 1982: Article 2-a - The Bearing of Arms. All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

---

by: Liam Clark @ Fri Jun 27, 2008 at 04:27:47 AM CDT

[ Parent ]

Right, but at the time the state constitution (0.00 / 0)

came was adopted, that wasn't there and wasn't around to inform the national constitution which came afterward.

---

by: Alex Gallichon @ Tue Jul 01, 2008 at 00:00:04 AM CDT

[ Parent ]

This is not an issue high on my radar screen, (0.00 / 0)

other than to say that I support the 2nd amendment.

What gets lost in the theory and the stridency of the oppposing sides is common sense.

How I wish those who support all guns all the time could spend a couple of weeks caring for small children in an inner city neighborhood plagued by gun violence.

And how I wish those who are anti-gun all the time could spend some time deep in the country on a property that border thousands of acres of undeveloped land.

It all depends on the situation.  States' rights, etc...  

Wonder if Sununu's fired now.

---

by: Dean Barker @ Thu Jun 26, 2008 at 18:17:17 PM CDT

"What gets lost in the theory and the stridency of the oppposing sides is common sense." (4.00 / 1)

Very true.  What's unfortunate is that so many people (and most of them NRA types) don't see the difference between, on one side, keeping a pistol on your nightstand for protection or hunting deer in the woods, and on the other side, carrying an AK-47 down Pennsylvania Avenue.

---

by: Douglas E. Lindner @ Thu Jun 26, 2008 at 18:28:37 PM CDT

[ Parent ]

I've never met anyone (4.00 / 1)

who is "anti-gun all the time."

---

by: elwood @ Thu Jun 26, 2008 at 18:28:48 PM CDT

[ Parent ]

You know, you're right. (4.00 / 1)

I think that group only lives in the ether of Jennifer Horn's AM radio fantasy campaign.

Wonder if Sununu's fired now.

---

by: Dean Barker @ Thu Jun 26, 2008 at 18:33:54 PM CDT

[ Parent ]

we fought a war over that one (0.00 / 0)

State's Rights...ahem

This is not a novel to be tossed aside lightly. It should be thrown with great force.

   Dorothy Parker

---

by: JonnyBBad @ Fri Jun 27, 2008 at 05:28:59 AM CDT

[ Parent ]

States' rights matter. (0.00 / 0)

That doesn't mean the states have the right to preserve their most, as they put it, "peculiar" institutions.

---

by: Douglas E. Lindner @ Fri Jun 27, 2008 at 19:23:09 PM CDT

[ Parent ]

Speechless (0.00 / 0)

I don't know what else to say after SCOTUS's 5-4 decision. Not that DC was safe city to begin with, but I wonder what it will be like now. Obviously homicide rates will go up and more John Muhammeds and Lee Malveuxs will be popping up around the area (no thanks to the Iraqi "occupation" and skyrocketing PTSD cases).

These are weird times we're living in. I just hope today's ruling doesn't reflect where American culture is headed.

BTW, the Washington DC Chamber of Commerce has begun a new ad campaign aimed (no pun intended) to attract more tourism. The following TV commercial you're about to see is scheduled to run on most Washington, DC networks. Have a look.

"Seventy percent of Americans want our troops out of Iraq and two pro-war candidates win the NH Primary. If that doesn't tell you how f-ed up the system is, what does?"

- Matt Taibbi, Rolling Stone

---

by: NH Ex-pat @ Thu Jun 26, 2008 at 20:00:30 PM CDT

I miss my M-60 (0.00 / 0)

That is Rock 'n Roll!

Look at me; all teary, waxing nostalgic.

I loved my M-14 best. 7 point 6....2..Full Metal Jacket.

Huah! (not for the polite)

The giant finds its gait.

---

by: Jack Mitchell @ Thu Jun 26, 2008 at 20:17:33 PM CDT

[ Parent ]

Re: (0.00 / 0)

I don't think you'll have a hard time finding one now. LOL.

"Seventy percent of Americans want our troops out of Iraq and two pro-war candidates win the NH Primary. If that doesn't tell you how f-ed up the system is, what does?"

- Matt Taibbi, Rolling Stone

---

by: NH Ex-pat @ Thu Jun 26, 2008 at 20:22:43 PM CDT

[ Parent ]

If only -- (0.00 / 0)

the rest of the movie was that good.

---

by: JimC @ Thu Jun 26, 2008 at 21:05:25 PM CDT

[ Parent ]

For real? (0.00 / 0)

That doesn't make me want to visit.

---

by: JimC @ Thu Jun 26, 2008 at 21:25:32 PM CDT

[ Parent ]

In no way guaranteed... (0.00 / 0)

...but there's a pretty good chance gun violence will go down. Gun violence has been seen to go down when gun control laws are repealed, as in the case of Florida, and sadly there was a small increase of crimes committed with assault weapons during the time of the assault weapons ban.
But really, it could go either way. DC's problems may be so serious that even handguns aren't a deterrent.

---

by: Liam Clark @ Fri Jun 27, 2008 at 04:36:45 AM CDT

[ Parent ]

That's probably a classic case (4.00 / 2)

of a post hoc ergo propter hoc fallacy.

Gun control laws won't get repealed when/where the public feels threated by gun violence.

---

by: elwood @ Fri Jun 27, 2008 at 05:04:57 AM CDT

[ Parent ]

Here's my take... (4.00 / 2)

... I'm not so sure outlawing guns or passing legislation to regulate them is the answer. Personally, it's about stopping or slowing demand or diminshing the allure guns have on people. Guns give people a false sense of power, the ultimate equalizer. It's like people glorify them. Whadda you do to take that away or diminish that? Who knows.

Then again, there's the fear factor. Michael Moore did hit upon this topic well in "Bowling for Columbine." There's a sense of fear among Americans unlike in other countries (like Canada). Take away that and maybe demand for guns go down.

There's so many layers to the problem. A lot of it sociological, some of it psychological. Seems like that might be the better route than regulating.  

"Seventy percent of Americans want our troops out of Iraq and two pro-war candidates win the NH Primary. If that doesn't tell you how f-ed up the system is, what does?"

- Matt Taibbi, Rolling Stone

---

by: NH Ex-pat @ Fri Jun 27, 2008 at 19:53:34 PM CDT

[ Parent ]

Heller's limit (0.00 / 0)

One aspect that a lot of pundits don't seem to understand is: This ruling spells out only the limits on the federal government regarding gun control. It does not limit what states (and therefore cities other than DC) can do.

The Bill of Rights limits the federal government's power and does not speak of the authority of individual states.

After the Civil War, the Court began to determine just what the 14th Amendment meant in terms of the states. Due process, equal protection? The Court decided that our best source for those terms was the Bill of Rights language and began to apply those limits on power to the states as well.

Prior to this, individual states could limit freedom of speech or the press, or jury trials, without federal oversight.

This long-term judicial movement, IIRC, is known as "incorporation:" that is, incorporating Bill or Rights protections into the 14th Amendment. Several of those protections have already been incorporated; others have not.

The Second Amendment has not.

The NRA has set its sites on a Chicago case to litigate that issue, hoping to quickly drive incorporation.

---

by: elwood @ Tue Jul 01, 2008 at 05:47:18 AM CDT