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» Hatrack River Forum » Active Forums » Books, Films, Food and Culture » D.C. Circuit Panel (and Now SCOTUS) Finds Personal Right to Bear Arms, 2-1 (Page 1)

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Author Topic: D.C. Circuit Panel (and Now SCOTUS) Finds Personal Right to Bear Arms, 2-1
Dagonee
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They struck down the District's ban on firearm possession.

Excerpt from the decision:

quote:
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.

...

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — “the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment — “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” — indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all — e.g., “the states.” These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions....

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia [which the court had earlier concluded “was a large segment of the population” rather than just a government-selected National Guard-like subgroup -EV] — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias....

[I]f the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit — and thus the most appropriate to express in a political document.



[ June 26, 2008, 01:13 PM: Message edited by: Dagonee ]

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MrSquicky
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That bit about the prefatory not being limiting is something I always wondered about the 2nd ammendment.
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Dagonee
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There's the possibility that the D.C. Circuit might hear this en banc, in which case they might overturn it.

It'll be interesting to see if SCOTUS even takes this up. If they do, I have no idea if they'll punt on the issue (again) or make a straight up decision. There are some very technical issues, such as standing, that would let them dispose of the action without addressing the merits.

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Icarus
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Seems well-put to me.
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Jim-Me
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in the meantime...

HARD LIQUOR AND HANDGUN NIGHT TONIGHT AT DAG'S PLACE EVERYONE


YEEEEEHAAAAW!!!!!

[Party]

*please consider the balloon to be an ak-47 firing in the air... thank you*

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Dagonee
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Hell, I live in Virginia. We don't have to stay in the house, we can hop in the explorer and go cruising. Passengers can have open containers and everyone can have their guns out as long as their not concealed. And if we want to conceal them, this is a must-issue state.

I tend to think this is the right judicial interpretation. I have no idea where I draw the line on acceptable regulation of firearm possession and bearing, but outright bans seems contrary to the amendment.

I so hope SCOTUS addresses this.

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Bokonon
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My question is whether someone can use this as a precedent to keep in their homes (and register) hand-held mortar weapons or grenade launchers? Not that I think people were waiting for this to do such a thing, but does it leave that question open, legally?

-Bok

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Dagonee
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I'm sure someone, somewhere will make that argument.

Edit: and it's "open" legally until SCOTUS rules on it, although they have, like bold and brave sir Robin, boldly turned their tail and fled almost every time the second amendment has come up.

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Shmuel
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quote:
Originally posted by Bokonon:
My question is whether someone can use this as a precedent to keep in their homes (and register) hand-held mortar weapons or grenade launchers? Not that I think people were waiting for this to do such a thing, but does it leave that question open, legally?

Not so much. There's a long section about what sort of arms are relevant here, noting that the right is not an unbounded one, but concluding that handguns (which are at issue in this case) are clearly within its parameters.

I'm not exactly a fan of the Second Amendment, but I think the court got this one exactly right.

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Bokonon
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What sort of judicial reasoning could be used to separate that situation from this? Assuming, of course, there is a difference.

In a way, I think that's why I prefer the "collective" argument versus "individual", even if it wasn't intended originally. I think within the framework of the collective definition, I think one can still carve out pretty liberal gun laws. The individual POV seems to me increasingly archaic as a foundation, given technological progress in the past 230 years. I think this is the right decision, but I thing the framework needs an update (which will never happen)

-Bok

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Shmuel
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quote:
Originally posted by Bokonon:
What sort of judicial reasoning could be used to separate that situation from this?

You might, you know, read the decision? It's linked to in the first post...
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Dagonee
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quote:
What sort of judicial reasoning could be used to separate that situation from this? Assuming, of course, there is a difference.
It depends entirely on the Justice's judicial methodology. What follows is very superficial analysis meant to serve as example, not a prediction.

Thomas (an original intent justice) might examine what common militia practices were at the time the amendment was drafted. If rifles and ammunition were kept in the home, and cannon kept in a central place, then there's a significant distinction there.

Scalia (who is not an "original intent" justice but rather an "original meaning" justice) might look at how militia enabling legislation using "keep and bear arms" or "right of the people" was interpreted at the time (to demonstrate the meaning of the words used) or he might sieze on "bear arms" and point out that mortars aren't borne as weapons - they are carried to where they will be used then sent down, and can only be used as weapons at that point (wouldn't work for bazookas). Or he might sieze on the word "arms" and point to uses that indicate that they generally referred to rifles (have no clue if this is true). Or he might point out that "people" bear rifles as individuals, while cannon are crewed by more than one.

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Lyrhawn
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I don't agree with an outright banning of firearms, I think that's against the amendment. But I don't have a problem with restrictions on firearm possession. If they want to restrict what kinds of firearms people can buy, what kinds of bullets, rules for use outside the home or for the ordering of an actual militia, that's all fine with me.

I'm one of those who thinks the amendment was specifically referring to a militia when it was written.

edit to add: At the time, "arms" would probably refer to muskets. Rifled guns were around but were scarce.

[ March 09, 2007, 04:30 PM: Message edited by: Lyrhawn ]

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Bokonon
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quote:
Originally posted by Shmuel:
quote:
Originally posted by Bokonon:
What sort of judicial reasoning could be used to separate that situation from this?

You might, you know, read the decision? It's linked to in the first post...
Well, I was asking the question in reverse, which I assume the opinion doesn't address. That is, if one WERE to decide to rule in favor of the District, how might one put it. The opinion is solely an attempt to support a position against the District.

-Bok

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Dagonee
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Bok, I thought you meant separate mortars from handguns - that's what my answer above refers to.

There is a dissenting opinion. I haven't read it yet, but in skimming it seemed to give a decent overview of the collective right theory.

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sndrake
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While I am in no position to give an informed opinion on the best coverage of this decision, I have to say that this analysis has the best graphic to go with the story that I've seen. [Big Grin]
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Shmuel
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quote:
Originally posted by Bokonon:
Well, I was asking the question in reverse, which I assume the opinion doesn't address. That is, if one WERE to decide to rule in favor of the District, how might one put it. The opinion is solely an attempt to support a position against the District.

You assume incorrectly. [Smile]

If you want the slice'n'diced precis of relevant paragraphs taken out of context, here goes:
quote:
The District would have us read this passage as recognizing a limitation on the Second Amendment right based on the individual’s connection (or lack thereof) to an organized functioning militia. We disagree. As already discussed, the Miller court was examining the relationship between the weapon in question—a short-barreled shotgun—and the preservation of the militia system, which was the Amendment’s politically relevant purpose. The term “Arms” was quite indefinite, but it would have been peculiar, to say the least, if it were designed to ensure that people had an individual right to keep weapons capable of mass destruction—e.g., cannons. Thus the Miller Court limited the term “Arms”—interpreting it in a manner consistent with the Amendment’s underlying civic purpose. Only “Arms” whose “use or possession . . . has some reasonable relationship to the preservation or efficiency of a well regulated militia,” id. at 177, would qualify for protection. (p. 44)

We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a “reasonable relationship to the preservation or efficiency of a well regulated militia,” because they were the very arms needed for militia service. And by the terms of the Act, they were to be personally owned and “of the kind in common use at the time.”

The modern handgun—and for that matter the rifle and long-barreled shotgun—is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller’s standards. (p. 52-3)

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.... [e.g., carrying a weapon while drunk, in a manner calculated to inspire terror, concealed weaponry, convicted felons] ...These regulations promote the government’s interest in public safety consistent with our common law tradition. Just as importantly, however, they do not impair the core conduct upon which the right was premised. (p. 53-4)

For the very long discussion of what a "militia" consisted of in colonial time, what weapons they used, and how that would be relevant in modern times, you'll have to read the decision itself. I'll note, however, that they explicitly cite cannons as an example of something not included by the amendment.

(Edited to add that the above selection, in context, explictly does not imply that the Second Amendment was intended for militia-maintaining purposes; rather, it operates under the contention that standard weaponry among militia members can be assumed to have been covered by the definition of "arms" in the amendment.)

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Bokonon
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Dag, your response was fine. I was just explaining that I was coming at it from the other direction. I wasn't looking for what the Circuit Court thought was the difference, but how one could define the difference.

-Bok

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aspectre
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One-shot muzzle-loaded blackpowder&ball smooth-bored pistols and long-barreled muskets were available at the time the 2ndAmendment was ratified. As Lyrhawn says, while rifles did exist, they were far too expensive for common use, and far too much trouble to safely load&reload for common military use.
Now if'n the three-judge panel intended to say that more advanced firearms can be legally banned...
If not, what would be the reasoning for banning RocketPropelledGrenades? Shoulder-fired anti-tank or anti-aircraft missiles?
Or a DaveyCrockett? Or an Abrams? Admittedly the Founders didn't have nuclear bombs or tanks with breech-loaded cannons back then. But they didn't have bullet cartridges either, or multi-shot rifles and pistols.

Not saying that owning a Warthog wouldn't be useful in preventing traffic jams. After a few strafing runs, traffic would undoubtedly lessen to a reasonable smooth-flowing level.

[ March 09, 2007, 06:34 PM: Message edited by: aspectre ]

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Occasional
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I have thought that if the "militia" is what defines the 2nd Amendment, then the government has usurped authority by creating the National Guard. It should be all volunteer and independant. Not that the government wouldn't be able to have something like the National Guard, but don't describe them as militia as a way to gut the Constitution.
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Dagonee
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quote:
If not, what would be the reasoning for banning RocketPropelledGrenades? Shoulder-fired anti-tank or anti-aircraft missiles?
I already outlined some possible reasonings that could be used. It's fun to say "ignoring progress in weapons means you have to allow a tank." But it's overly simplistic.

It's clear that a nuclear weapon or a tank is not an analog to a revolutionary war musket. An M-16 might be, depending on if you use capability or role as the trait to draw on. The M-16 is the standard issue infantry long arm - filling the same role as the revolutionary musket.

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Reshpeckobiggle
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I just saw the mayor of D.C. lamenting the decision. He said something along the lines of, "striking down a law which has done so much to reduce gun violence..." This coming from the mayor of a city with one of the highest gun related violence rates in the country.

I guarantee if they relaxed the gun control laws even more and allowed concealed carry (like in Colorado), gun crime would plummet. Out here, there are more good guys carrying guns under their jackets than there are bad guys doing the same. And surprise surprise, everyone is real nice to each other. Denver has the lowest violent crime rate in the country for a city its size. Coincidence? Maybe. But doubtful.

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aspectre
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A 21stCentury infantry squad could easily wipe out a RevolutionaryWar regiment in a few minutes.
Heck, any half-way decent modern-day shooter with a WWI-era bolt-action hunting rifle could wipe out an 18thCentury regiment. It'd just take a bit longer to constantly change positions to keep the moving targets within view while keeping out of musket range

A nutcase with a single-shot pistol, or even a brace of single-shot pistols, can easily be overwhelmed after the first shot, or two if he has one in each hand. Be more luck than skill to even hit a moving person at more than point-blank range.
A nutcase with a modern semi-automatic pistol can reload faster than an unarmed opponent beyond point-blank range can reach him.

It's disingenuous at best to claim that a modern assault rifle is equivalent to a long-barreled musket. Or that a Glock 9mm is equivalent to an 18thCentury pistol.

And the anti-Abrams argument doesn't work either. Yeah there were no one-man portable cannons back then.
But there weren't rapid-fire muskets using an explosive-reaction motor to clear a fired cartridge then reload the chamber either. So what's the difference in using a different type of explosion-based motor to propel&aim a cannon instead of reloading a rifle or pistol.

[ March 09, 2007, 08:21 PM: Message edited by: aspectre ]

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Icarus
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Given that the founders took up arms in violent rebellion against their own previous government, and the distrust of centralized government power they showed everywhere else throughout the process of founding this country, I don't buy into the "only for a militia" argument.

-o-

Resh, I'm on your side of this debate, but if you believe that crap in your last post, you live in a fantasy world. Colorado has less crime because it has less population pressure and less poverty, not because your bad guys are afraid of your guns.

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Dagonee
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quote:
It's disingenuous at best to claim that a modern assault rifle is equivalent to a long-barreled musket.
Good. I didn't do that. But you know that, don't you.
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Rakeesh
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quote:
It's disingenuous at best to claim that a modern assault rifle is equivalent to a long-barreled musket. Or that a Glock 9mm is equivalent to an 18thCentury pistol.
He said they filled the same role, aspectre, not that they were equivalent. That's not disingenuous at all.
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Rohan
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Interestingly, the opinion actually addresses many of the arguments and ideas in this thread. I found it to be a pretty easy read. I've always thought Judge Silberman was a good writer, but this really is one of those opinions it seems was crafted for mass consumption. It's clear, it's to the point, it addresses all (ok, almost all) of the major arguments on this topic. My favorite line from the opinion:
quote:
The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if
the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document.


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Lyrhawn
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quote:
Originally posted by Icarus:
Given that the founders took up arms in violent rebellion against their own previous government, and the distrust of centralized government power they showed everywhere else throughout the process of founding this country, I don't buy into the "only for a militia" argument.

Read original drafts of the second amendment before its final form, and the couple other dozen right to bear arms amendments in state constitutions. Read some of the Federalist and anti-Federalist papers, and some of the personal journals and writings of founding fathers at the time.

Whenever they mention the right to bear arms, it's almost always in conjunction with a militia, which they thought was both the best protection against an oppressive government, and against an armed rebellion. The thing they feared the most was a standing army, which is why a well armed, regulated citizen militia was considered the best protection agaisnt government abuses. There's no way a government can oppress you if there's an all volunteer militia that'll shoot down any order you give them that causes them to oppress their neighbors. One of them specifically said something to the effect of 'the standing army must always be a 1% of the total population of the US, so that a nation of 3 million will have an army of 30,000, against almost 3 million guns in the hands of the people.' That's the gist, I don't remember the exact quote.

A lot of it was a direct reaction to British attempts to disarm their own citizens, and Americans at the onset of the Revolutionary War. But everywhere you look when they were discussing this amendment back then, it was mated with a regulated militia, to be used in defense of the state and to protect against oppression.

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quidscribis
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quote:
Originally posted by Dagonee:
like bold and brave sir Robin, boldly turned their tail and fled

[Big Grin] You just made my day. [Big Grin]
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Jim-Me
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quote:
Originally posted by Lyrhawn:One of them specifically said something to the effect of 'the standing army must always be a 1% of the total population of the US, so that a nation of 3 million will have an army of 30,000, against almost 3 million guns in the hands of the people.'
Emphasis mine. Lest you think I'm being flippat about that, consider also that your quote assumes the vast majority of the population (and does that number include women and children?) is a part of the armed militia.

quote:
A lot of it was a direct reaction to British attempts to disarm their own citizens, and Americans at the onset of the Revolutionary War. But everywhere you look when they were discussing this amendment back then, it was mated with a regulated militia, to be used in defense of the state and to protect against oppression.
More emphasis mine. This doesn't run counter to what Icarus said at all and all of your quotes really do tell a lot about what the fathers meant by a militia-- a bunch of private citizens with contemporary weapons and trained in their use... not what we now know as the national guard.
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Dagonee
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quote:
Resh, I'm on your side of this debate, but if you believe that crap in your last post, you live in a fantasy world. Colorado has less crime because it has less population pressure and less poverty, not because your bad guys are afraid of your guns.
Looks like the Post likes to engage in the same kind of unsupported grandstanding in the other direction:

quote:
If allowed to stand, this radical ruling will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder.

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Lyrhawn
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This is my basic argument for why I think the second amendment is specifically referring to an organized militia. It's not all I have, but it's all I'm really willing to spend the time to assemble for a Hatrack post. I constructed this for a different Hatrack thread, when I was specifically arguing against someone who was saying that the Second Amendment was specifically there to protect the right of the people to have weapons so they could overthrow the government whenever they felt it was necessary. But the jist of the militia argument is in there.
..........
Alright, this isn’t everything, but it’s a good gist of the militia argument, with some good background docs.

I can see, by the way, how really both sides could be right. Militias were viewed at the time as the people’s way of keeping the government in check. They were against standing armies, and thought they were pathways and playthings for governments on their way to corruption and tyranny, and thought that if the power was vested in the people’s army, a militia, then the government would never be able to overcome them. So in effect, keeping the guns with the people, organized in a militia, could be considered a way for the people to ‘rebel’ if the government gets out of hand.

I reject out of hand though, that the principle of guns in the hands of all citizens is some sort of safeguard against anything. They never planned for the people to have the ability to lead an insurrection, indeed the militias the second amendment were designed to protect and create were specifically tasked to defeat any such insurrection. I think an all volunteer army, an all volunteer national guard (which is a modern militia) is a damned good defense against our government taking extreme action (to say nothing of natural democratic safeguards). Granted I don’t think home state loyalty is what it was in the 1860’s, there’s very few who would say their loyalty to Virginia is higher than that to the US, though I suppose it would have to depend on the circumstances. The militias themselves, that are mentioned in the multiple state constitutions and in the previous versions of the second amendment were there specifically for defense of the states (individually and together), against foreign enemies and domestic insurrections. They weren’t created as an instrument of insurrection, but as a prevention and defense mechanism.

Anyway, the history of the amendment can be traced back to England. The English Declaration of Rights gave Protestants (no dice for Catholics and Jews) the right to “have arms for their defence suitable to their conditions and as allowed by law” http://www.constitution.org/eng/eng_bor.htm At the early stages of the Revolution, the British tried to take away the guns of the militias in an effort to quash the ability of the Americans to stage a real revolt, really it was an attempt to take away the option at all, since the people being deprived of guns weren’t rebelling yet. They tried to cite the above stated passage, and parts of Common Law as reason to keep their weapons, that they be allowed to have them for hunting, self defense, militia obligations, etc.

Their real fear was a standing army. Standing armies were to them the ultimate tool that a president (or king) could use to revoke the civil rights and liberties of the people. Jefferson, writing to John Adams while they were in Europe (Paris and London respectively) said of the Presidency: “He may be reelected from four years to for years for life…Once in office, and possessing the military force of the union…he would not be easily dethroned, even if the people could be induced to withdraw their votes from him.” That’s from The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson & Abigail & John Adams[/b] edited by Lester J. Cappon. At the start of the United States of America (post Articles of Confederation), there were less than a 1,000 men in the Federal Army, from [i]John Adams by David McCullough. They believed that militias were the best form of defense against foreign enemies and domestic insurrections, such as the Whiskey Rebellion and Shay’s Rebellion, though it’s also true that Shay’s Rebellion is a probably the best represenatation of why the looser Articles of Confederation weren’t strong enough to deal with threats to the nation.

On the subject of militias vs. a standing army, James Madison had this to say (From Federalist No. 46).
quote:
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
The ongoing French Revolution scared the hell out of a lot of people too. John Adams, while remarking on the debate around the second amendment had this to say:
quote:
The State is in critical Circumstances, and have been brought into them by the Heat and Impatience of the People. If nothing will bring them to consideration, I fear they will suffer
http://www.masshist.org/digitaladams/aea/cfm/doc.cfm?id=L17931222ja&mode=popuplg&pop=L17931222ja_2

His fear was that if the people were armed, and disastified with their government, they’d take up arms and let mob rule supplant the government, to the ruin of all. Something along the lines of the decline that followed in Russia after the Revolution killed off the Romanoffs. Given what was happening in France at the time, I don’t think anyone could really brush off his fears.

Alexander Hamilton, speaking on the subject of militias in Federalist No. 29 had this to say:
quote:
The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy

This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

http://www.constitution.org/fed/federa29.htm

What he and the others are saying, is similar to what others on this board were saying, that an armed populace is the an ultimate defense against a tyrannical government, but that isn’t the same thing as saying the second amendment was forged for the purpose of the people retaining the right to insurrection at will. On the contrary, it was designed so that standing armies, being the most obvious threat to liberty and civil rights at the time, would be rendered unnecessary except in times of war, and that militias would always outnumber them and could always overpower them at any given time, for the defense of liberty, and of the state, against domestic insurrection and foreign invasion. I think there is an emphasis on the collective rights of people to keep and bear arms, as a militia, rather than the individual right of a person to.

If you look at earlier versions of the second amendment, the material being played with had entirely to do with military service to a militia:

quote:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The words “necessary to” were added before the final version, “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.” was submitted to the states for approval. I think it should be especially noted, that a measure was put forth in the Senate and the House to add the words “for the common defense” after “bear arms” but was defeated narrowly. Much of this had to do with compromise, but clearly the thought of the time was that the defense of the nation against all threats, foreign and domestic was best held in the hands of a regulated militia.
h t t p://rs6.loc.gov/cgi-bin/ampage?collId=llsj&fileName=001/llsj001.db&recNum=74&itemLink=r?ammem/hlaw:@field(DOCID+@lit(sj001133))%230010075&linkText=1 (I had to break up the link, as Hatrack doesn't allow urls with ( ) in them.)


Forty-Four states have a right to bear arms in their state Constitutions, around 28 of those states specifically include the provision that the right to bear arms is for the common defense of the state, or similar language. http://www.law.ucla.edu/volokh/2amteach/sources.htm#T11

quote:
Massachusetts: The people have a right to keep and to bear arms for the common defence

Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796)

Virginia: That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Several states sent requests for a Bill of Rights, and that they include the following amendments:

quote:
New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

Virginia: . . . Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

New York: . . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

North Carolina: Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms."

Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York.

The North Carolina Declaration of Rights (12/18/1776) states:
quote:
“The people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”
Pennsylvania and Vermont wrote an almost identical provision in their Declaration. http://www.yale.edu/lawweb/avalon/states/nc07.htm

Another interesting conversation to be had, as an aside from this one would be the Militia Act of 1903. It was the act that turned what had once been citizen militias into what is today the National Guard, which functions as a highly trained offshoot of the regular army. That did away with citizen militias, which theoretically I think anyway, is a violation of the spirit of the second amendmenta and the Constitution, but apparently doesn’t violate the letter of the law. I’m more a fan of something akin to the Swiss system, which is I think what the framers intended us to have, a well regulated, trained force of citizens who could be called up to defend the state with a medium amount of training, which would also serve as a bulwark against a standing army’s threat to personal liberty.

Early American common usage of “to bear arms” had a decidedly military bent to it.
quote:
“The Oxford English Dictionary on Historical Principles declares that a meaning of "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight". This study casts doubt on the modern definition of 'bear arms' to mean 'carry firearms'. In Amyette v. The State the court stated in 1840 that bear arms "has a military sense, and no other."
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

There’s still a lot more to look at. But this post is already monstrous, considering I assembled it more as a term paper for a history class than a typical post (and spent more time than I’ve EVER spent crafting a post before). In closing, I submit the following site again, even though I already cited it once, http://www.law.ucla.edu/volokh/2amteach/sources.htm#TOC2 for further reading. It has a wealth of knowledge on the subject, from other state constitutions to a lot of supreme court decisions and opinions on the subject as well as Constitutional commentaries and analysis from notable scholars of different times.
..........

The quote that I paraphrased before is up there, and I apologize for badly, BADLY mangling it, my memory apparently didn't do it justice, though I think it captured the main point of the statement about militia versus a small standing army.

And though I say above that the National Guard is basically a present day militia, I don't agree with that now. Even if the National Guard is made up of "citizen-soldiers" the emphasis there should be on soldier. They get part time training, but they are still soldiers, subject to the same sorts of rules and training that the regular army is, and they are used just like regular army units these days as well. Militias should be citizens first, and act with force only when necessary to protect their homes.

And I see a lot of emphasis both from the court, and in this thread on the words "citizen" and "the people." I don't think that in any way rules out militias. Militias are made up of citizens and people, as a whole, and is totally different from the standing army. Militia could really be used interchangeably with "armed citizenry" or "armed people." I think for the purposes of the framers intent, "the people" in the second amendment refers to the militia.

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Icarus
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Lyrhawn, those were two very interesting posts, thank you. However, I don't feel that they really contradicted me. They certainly did flesh out my background understanding, though.

By the way, are you familiar with tinyurl? It's great for those long urls that Hatrack and other boards can't parse, and it also keeps them from stretching the page to be wider than a browser window. [Smile]

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Lyrhawn
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Did I break the thread? it looks fine to me but if it's messed up on your window let me know and I'll fix the links.

And I've seen tinyurl used before, but I'll admit, I wasn't really sure how it worked. Thanks [Smile]

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Dagonee
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D.C. has decided to ask for an en banc review of the decision. If the court grants the review, it would be heard in the fall. The next step is the Supreme Court.
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erosomniac
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quote:
Originally posted by Lyrhawn:
Did I break the thread? it looks fine to me but if it's messed up on your window let me know and I'll fix the links.

And I've seen tinyurl used before, but I'll admit, I wasn't really sure how it worked. Thanks [Smile]

Those of us running a resolution 1024 pixels or narrower have to side-scroll.
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Kwea
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Yep, it's broke.
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Dagonee
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Next stop, Supreme Court.

The D.C. Circuit declined to review the panel decision en banc, so D.C. has decided to petition for cert. They have asked to extend the deadline to September 5, which means it's unlikely the case will be decided next term if the Supreme Court grants cert.

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BlackBlade
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This sounds like its only a handgun ban, why do people NEED handguns for self defense? There are other weapons available to them that they can't conceal outside their homes very well.

Also why do we appeal to the original drafters interpretation of the right to bear arms? Did they consider bans on flintlock side arms? Weapons today although they accomplish the same function as all weapons are still radically different then weapons used in the 1780s, why isn't the right to bear arms then considered in terms of what we need now? I know its not agreed upon but then again the right to bear arms was not agreed on when the nation was formed. Its not as if the founding fathers had the power of truth and knew everything this country needed.

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Dagonee
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quote:
Its not as if the founding fathers had the power of truth and knew everything this country needed.
It's not a question of the founders having "truth," but rather abiding by the core framework of our government, which includes within it the prescribed methods for changing it.

quote:
Weapons today although they accomplish the same function as all weapons are still radically different then weapons used in the 1780s, why isn't the right to bear arms then considered in terms of what we need now?
Because arms can be viewed either by their capability or by their role in combat/defense. Should the First Amendment not apply to the Internet because the Internet wasn't around when Madison drafted the Bill of Rights?
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BlackBlade
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I don't mean throw the ammendments out. I mean evaluate them in terms of how thing exist now. I understand the judicial branch has to work with the constitution we HAVE not the one we SHOULD have.

But legislators get squemish when it comes to the bill of rights, and I am not sure that's a good thing entirely.

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Dagonee
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For those keeping track, D.C. filed for cert yesterday. I give it a 40% chance of getting Supreme Court review (a total guess).
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Paul Goldner
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If you'll pardon a little bit of premature discussion of the potential consequences...

DC banned handguns, and the claim made by the city in the filing is that banning handguns is, essentially, in the best interests of the "state." That by banning handguns (but allowing citizens to own other arms) the citizenry is protected.

The ban was overturned on the grounds that the right to bear arms is an individual right. (Hadn't noticed this until reading dagonee's link, but apparently the 5th district court has upheld a gun ban while declaring gun ownership an individual right).

If the gun ban is overturned by the SC on the grounds that gun ownership is an individual right, and therefore cannot be abridged in this way, even if there is a compelling state interest in doing so, (unlikely a decision would come down this way, but I find this interesting), then all sorts of SC decisions that rest upon a compelling state interest that over-rides Bill of Rights protections would be dramatically undermined.

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Dagonee
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It is interesting to think about how they would work this into the existing framework of rights. I agree it's unlikely they will not allow restricting it at all, even in the face of a compelling state interest.

When a right is subject to strict scrutiny, there's a three part test toward restrictions that implicate that right:

1) The restriction must serve a compelling state interest.
2) The restriction must be narrowly tailored - essentially, the restriction must not be over-inclusive (affecting exercises of the rights that do not implicate the compelling state interest) or under-inclusive (leaves essential aspects of the compelling state interest out).
3) The restriction must be the least restrictive means to achieve the compelling state interest.

Based on memory (I read the briefs and decisions months ago), I believe that the interest of reducing firearm deaths has been conceded to be compelling. It is other two factors that are at issue in this case.

If the DC opinion is upheld in substantially the same form, DC will have little guidance in what types of regulations it can impose on handguns - look for years and years of litigation in the circuits.

It's very possible that if SCOTUS finds an individual right to bear arms, the right will be deemed to be one subject to a lesser standard of scrutiny - possibly based on the words "well-regulated." One possibility would be finding the right subject to intermediate scrutiny, which requires a finding that the regulation is closely related to an important government interest. In essence, this eases the first two prongs of the strict scrutiny test and eliminates the third.

(Let me know if I need to unpack that more - I know it's a broad summary.)

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aspectre
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Now that the DC Court has decided that restrictions are unconstitutional, some squad weapons to consider for purchase.
My, what exciting tales we'll have to tell of our vacations. Not to mention how much more FUN our Senators and Representatives will have traveling between home and the RonaldReaganWashingtonNationalAirport.

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Dagonee
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quote:
Now that the DC Court has decided that restrictions are unconstitutional
The DC Circuit decided no such thing.
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Dagonee
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SCOTUS granted cert.
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BlackBlade
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This is very facinating stuff. I'm sure my Poly/Law class will be discussing this next Monday, probably Wednesday as well.

I'm glad SCOTUS is taking this up, it's an issue that needs looking into.

Tough to imagine how they will decide on this issue.

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Bokonon
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I don't think it's that tough... I expect a 5-4, maybe 6-3, decision, with a couple of different dissents, and at least one concurring opinion, on top of the ruling opinion.

My only caveat is that they try their darnedest to get as close to an unanimous decision as possible, to avoid complications that might arise from the above, politically. Still might be an 8-1 in that case too.

I don't know how I feel about it, but that's my expectation.

-Bok

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Dan_raven
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I am all for allowing the constitutionally guaranteed right for all individuals to own any weapon they wish.

Ammunition, however, should be outlawed.

After all, the Constitution says you have the right to "Keep and bear arms." It doesn't say a thing about the right to load or fire them.

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