SCOTUS poised to strike down D.C. gunban.

[Lonestar]

"From my cold, dead...."

WASHINGTON -- The Supreme Court justices, hearing a historic argument on the meaning of the 2nd Amendment, signaled they are likely to strike down a handgun ban in the District of Columbia and rule that homeowners have a right to keep a gun for self-defense.

But if the oral arguments are any guide, the outcome will not be unanimous. Several justices said they believed the 2nd Amendment was intended to protect the state's right to maintain a "well-regulated militia," not to give gun rights to individuals.

Justice Anthony M. Kennedy, who is the swing vote in close cases, said he believed the 2nd Amendment did more than bolster the state militia. "In my view, there is a general right to bear arms" that goes beyond serving in the militia, Kennedy said.

Didn't a judge previously say that the D.C. gun ban was legal because "the Constitution doesn't apply to D.C."?

[Broomstick]

Bullshit - of course the Constitution applies to the District of Columbia. It's part of the United States even if it is not, itself, a state.

This could be huge - it's a review of the 2nd Amendment.

For those of you outside the US, this is not a dispute on whether the government has a right to regulate weapons, it's whether or not individual citizens have right to bear arms.

Washington DC (along with Chicago, Illinois) BANS ownership of guns within the city limits. This is being challenged on the ground that while the government can regulate weapons (that is not in dispute) it can not BAN them.

By the way - here is the entire text of the 2nd Amendment to the US Constitution:

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

A few links:


BBC

The New York Time

CNN

[Darth Wong]

American conservatives ... so the government can restrict the time and place of free speech, but not guns?

[brianeyci]

Is that really the second amendment? Is that really what some Americans are so up in arms about? Every time I hear about it the "militia" part is fucking left out. What the fuck!

It seems to me that to anybody who understands English, that the amendment only applies to members of a Militia. Therefore, if the state decided to regulate the size of Militias they could regulate indirectly, guns. In fact, the word "regulated" is even right in the text.

Also, the end part where it says the right of the people to keep and bear arms might be argued to be the American people. But since when does the people have to mean all the people? When it's "The People versus Mr. Simpson" it doesn't mean each and every individual is individually attacking Mr. Simpson in court, but The People's representatives.

But of course it's time to cut to the heart of the matter and not semantic whore. I'm trying to divine the intent of the amendment solely based on the wording, which is probably a dishonest way of interpreting the amendment. The proper way is probably the proper historical context -- the Founding Fathers wanted to ensure a militia could be raised on the fly, to prevent invasion. The spirit of the amendment seems to be to ensure the existence of the militia not that every single citizen should have the right to a weapon. The Founding Fathers could in no way have anticipated the technological revolutions which would transform warfare... the aeroplane, the machine gun, and the tank. So if those implements had existed, even a moron would understand that fighting in human waves would not work and a militia would not be needed for the survival of the country. Ergo, no need to guarantee the right of a weapon to every citizen, since conscript armies are completely ineffective in modern warfare.

Am I missing something?

[Broomstick]

American conservatives ... so the government can restrict the time and place of free speech, but not guns?

neither side is disputing the government having a role in regulating weapons - that was settled in the 1930's - what's under dispute is whether individuals have any right at all to ownership of a weapon. The government would, however this is decided, still be able to regulate, but if it goes one way governments (even at as low a level as city government) could BAN weapons of all sorts, and if it goes the other they could still regulate, but not to the point of banning. So either way you'd still have laws preventing automatic weapons, mentally ill people from owning weapons, and so forth.

[Chris OFarrell]

So the Government could 'restrict' weapons sales unless you meet some absurd level of qualifications which is effectively a ban in of itself?

[aerius]

Am I missing something?

Yeah, the 2nd Amendment is a sacred cow in the US constitution, few people can name the other amendments, but damn near everyone knows the 2nd, and are "experts" on it. It's the one everyone talks about and go apeshit over.

[Mr Bean]

*Snip since it's one post up
Am I missing something?

It all comes down to the comma breaks and the word milita as far as reading it goes, as well it comes down to the writings of the founding father's and the times at which they lived.

Here's an important thing, in 1776, never mind the British, there were Native America's only to happy to kill the colonists, and there was at that time still fucking BEARS and other wild-life which would be more than happy to eat you if they got the chance. Not an issue today, but considering the times, it was an imperative that you carried a gun with you if you ventured into the wilderness. The Wilderness being defined as anyplace not Boston, and even then only the nicer parts of Boston.

More to the term milita itself was universal, if you owned a gun and you were able-bodied guess what? Your in the milita!, in those times everyone was defined as being milita.

Let me steal an NRA argument because it's a good legal one for this point

The Militia Act of 1792, adopted the year after the Second Amendment was ratified, declared that the Militia of the United States (members of the militia obligated to serve if called upon by the government) included all able-bodied males of age.

Hence when looked at through modern eyes it seems that the 2nd amendment only gives "milita's" the right to bear arms, because our definition of militia has changed over time.

We can get into all sorts of arguments about self defense, this that or the other, but the primary point, in 1792(When the 2nd was adopted officially) if you were Male, able-bodied and owned a Gun you were in the militia. Taken literately it means the very act of purchasing a gun gives you the right to own that gun.

That help some Brianeyci?

[Broomstick]

Is that really the second amendment? Is that really what some Americans are so up in arms about? Every time I hear about it the "militia" part is fucking left out. What the fuck!

It seems to me that to anybody who understands English, that the amendment only applies to members of a Militia.

At the time that was written, however, the "state militia" was every able-bodied free man in the state - and "man" might be people as young as 12 - and they supplied their own weapons an ammo. Therefore, if you restricted the right of private citizens to own weapons you automatically restricted the militia.

This has not been revisited in over 200 years. It's probably past time.

Therefore, if the state decided to regulate the size of Militias they could regulate indirectly, guns. In fact, the word "regulated" is even right in the text.

And it is on that very basis that we have gun control laws now, such as preventing the mentally ill from legally purchasing firearms (although the system isn't perfect)

Also, the end part where it says the right of the people to keep and bear arms might be argued to be the American people. But since when does the people have to mean all the people? When it's "The People versus Mr. Simpson" it doesn't mean each and every individual is individually attacking Mr. Simpson in court, but The People's representatives.

I think it starts with the preamble to the Constitution, which starts "We the People, in order to form a more perfect union...." OK, these guys sometimes used weird grammar and construction. What do you expect? This document was written and issued by a committee.

The 2nd is part of the Constitution, and for the most part "the people" in that document are, indeed, the people in the sense of everybody in the country.

The proper way is probably the proper historical context -- the Founding Fathers wanted to ensure a militia could be raised on the fly, to prevent invasion. The spirit of the amendment seems to be to ensure the existence of the militia not that every single citizen should have the right to a weapon.

No, just every able-bodied adult male - and some of the older teenagers. Nowadays, we'd probably extend that to women, too. And certainly criminals, the mentally ill, and so forth were not part of the militia (although it's possible slaves were - since the militias of the time were for self-defense it was possible that slaves might be involved during an attack by hostile forces)

The Founding Fathers could in no way have anticipated the technological revolutions which would transform warfare... the aeroplane, the machine gun, and the tank. So if those implements had existed, even a moron would understand that fighting in human waves would not work and a militia would not be needed for the survival of the country. Ergo, no need to guarantee the right of a weapon to every citizen, since conscript armies are completely ineffective in modern warfare.

Am I missing something?

Well, aside from the deep, deep mistrust the average US citizen has of his/her own government... not too much. And do keep in mind that the folks who drafted that document were rebels. Their writings outside of official government documents made it very clear that the idea of allowing the populace to be armed was to provide a means to overturn tyranny at home.

I don't think you can safely conclude that even if the founders had anticipated modern weaponry they would NOT have approved of every home owning a machine gun, six-pack of grenades, and a family tank. These guys were not pacifists.

However, even if the founders had be gonzo-guns that doesn't mean that's the way it should be NOW - we do, after all, have a mechanism for making more amendments (not easily - that was also delibrate). If we want to change the intention of those words then we should write it out explicitly and tack it on to the official list of changes.

[Broomstick]

So the Government could 'restrict' weapons sales unless you meet some absurd level of qualifications which is effectively a ban in of itself?

No - if bans are unconstitutional then restrictions so severe as to effectively act as a ban would also be unconstitutional You're not allowed that sort of loophole.

[Darth Wong]

American conservatives ... so the government can restrict the time and place of free speech, but not guns?

neither side is disputing the government having a role in regulating weapons - that was settled in the 1930's - what's under dispute is whether individuals have any right at all to ownership of a weapon. The government would, however this is decided, still be able to regulate, but if it goes one way governments (even at as low a level as city government) could BAN weapons of all sorts, and if it goes the other they could still regulate, but not to the point of banning. So either way you'd still have laws preventing automatic weapons, mentally ill people from owning weapons, and so forth.

That sounds like nonsense to me; the government already bans certain type of weapons. Chemical weapons, for example, are outlawed for civilian use. So are many military weapons AFAIK. To say that the 2nd amendment outlaws the banning of any particular type of weapon seems completely absurd in that context. And if it does mean that, then the 2nd amendment needs to be amended.

[Broomstick]

That sounds like nonsense to me; the government already bans certain type of weapons. Chemical weapons, for example, are outlawed for civilian use. So are many military weapons AFAIK. To say that the 2nd amendment outlaws the banning of any particular type of weapon seems completely absurd in that context. And if it does mean that, then the 2nd amendment needs to be amended.

The precedent was set in the 1930's that particular weapons can be banned (it concerned sawed-off shotguns, to be specific - I'm not entirely clear on the reasoning used), but did not address the question of whether individual citizens have a right to be armed. The effect of the DC ban (which is the one before the court) and the Chicago one is to effectively ban ALL firearms for ANY reason from private citizen ownership. Since the 2nd does not say "firearms" but rather "arms", such could be extended to ban ownership of any weapon whatsoever if it is decided that there is no such inherent right.

And yes, I did mention that is was probably past time to revisit this and if the wording wasn't clear enough the first time maybe we should fix it.

[Rogue 9]

Am I missing something?

Yeah, you're missing the Militia Act of 1792, as amended to it's present-day form, which reads as follows:

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

This provision was last amended in 1958.

So in short, a large mass of the population is part of the unorganized militia, and thus entitled to bear arms even if you ignore the fact that it says the right of the people to keep and bear arms shall not be infringed, rather than the right of the militia to do the same.

[Rogue 9]

Ghetto edit: Forgot the link.

[Simplicius]

10 USC 311 still defines the militia as every able-bodied male citizens between the ages of 17 and 45 plus female National Guard members.

Also, the end part where it says the right of the people to keep and bear arms might be argued to be the American people. But since when does the people have to mean all the people? When it's "The People versus Mr. Simpson" it doesn't mean each and every individual is individually attacking Mr. Simpson in court, but The People's representatives.

The problem with this line of reasoning is that the Bill of Rights pretty obviously grants rights to the people of the United States as a body of individuals, and not "The People" as a collective, as that was the whole purpose of those amendments in the first place.

Yeah, the 2nd Amendment is a sacred cow in the US constitution, few people can name the other amendments, but damn near everyone knows the 2nd, and are "experts" on it. It's the one everyone talks about and go apeshit over.

I'd say 'everyone knows' the Second in the same sense that 'everyone knows' the First - i.e. if you asked them to tell you the whole of it, they'd not get much further than "Right to bear arms," just like people would definitely say "Freedom of speech and religion" but would probably overlook freedom to assemble peaceably, to petition, freedom of the press, etc.

This case is actually kind of a big deal, though, because it's not every day that one of the first ten amendments get direct scrutiny.

That sounds like nonsense to me; the government already bans certain type of weapons. Chemical weapons, for example, are outlawed for civilian use. So are many military weapons AFAIK. To say that the 2nd amendment outlaws the banning of any particular type of weapon seems completely absurd in that context. And if it does mean that, then the 2nd amendment needs to be amended.

If I understand it correctly, current Supreme Court rulings hold that arms not "reasonably related to the preservation or efficiency of a well-regulated militia" are not subject to Second Amendment protections. The controlling case is US v. Miller, 307 US 174, from 1939. It upheld a conviction of transporting a sawed-off shotgun across state lines.

Dang, it looks like I've been typing too slowly here.

[Sea Skimmer]

The precedent was set in the 1930's that particular weapons can be banned (it concerned sawed-off shotguns, to be specific - I'm not entirely clear on the reasoning used), but did not address the question of whether individual citizens have a right to be armed.

They allowed the saw off shotgun ban on the grounds that the government claimed citizens had need only of military weapons suitable for militia service, and that sawed off shotguns had no value in warfare. This however was bullshit, as the US had issued thousands of shotguns to troops in WW1 and many had been promptly sawed off for use in narrow trenches, but the justices accepted the nonsense and thus it became law. Note that no defendant was present at the Supreme Court hearing on this matter and no physical evidence was presented. Sawed off shotguns would be used again in combat in the Pacific war and in Vietnam.

This case is the only time the Second Amendment was directly addressed by the Supreme Court, and the other clauses of the National Firearms Act were not addressed, nor has 1968 Gun Control Act (which turned many NFA regulations on things like .50cal+ caliber guns and exploding ammo into bans on specific types of weapons) ever been addressed.

So really, as far as Supreme Court precedent goes, there really isn’t any when it comes to the big issues of US gun control. No power exists to force the Supreme Court to take any specific case, you can ask nice but they make there own schedule. This is good and bad, but sometimes I really wish we could force them to make rulings on things like this.

[brianeyci]

Well, thanks for the replies but it looks like the solution is to amend the Militia Act to mean only the National Guard .

Anyway, for the larger question whether the Supreme Court should rule, I don't think they should be forced to, especially on partisan issues. The Supreme Court shouldn't be forced to rule on anything so politically charged. I see no problem in maintaining an indefinite deadlock, with local jurisdictions making their own bylaws and ordinances, especially since the whole concept underlying US government is deadlock and dilution of Federal power.

[Guardsman Bass]

I listened to a good chunk of the recorded oral argument on C-SPAN. It was a little hard to follow (they kept referencing centuries-old legal precedent, like the question about whether or not the 1689 English Bill of Rights was more or less restrictive on gun ownership), but a lot of it seemed to come back to what constituted a valid "militia" weapon.

[The Duchess of Zeon]

The precedent was set in the 1930's that particular weapons can be banned (it concerned sawed-off shotguns, to be specific - I'm not entirely clear on the reasoning used), but did not address the question of whether individual citizens have a right to be armed. The effect of the DC ban (which is the one before the court) and the Chicago one is to effectively ban ALL firearms for ANY reason from private citizen ownership. Since the 2nd does not say "firearms" but rather "arms", such could be extended to ban ownership of any weapon whatsoever if it is decided that there is no such inherent right.

And yes, I did mention that is was probably past time to revisit this and if the wording wasn't clear enough the first time maybe we should fix it.

The explicit reasoning used in the decision was that the 2nd Amendment only preserved the right for citizens to carry military arms which would be useful in a militia. Sawed off shotguns were banned, as were automatic weapons, under these grounds, because neither was a standard issue service arm at the time.

[Master of Ossus]

Well, thanks for the replies but it looks like the solution is to amend the Militia Act to mean only the National Guard .

Anyway, for the larger question whether the Supreme Court should rule, I don't think they should be forced to, especially on partisan issues. The Supreme Court shouldn't be forced to rule on anything so politically charged. I see no problem in maintaining an indefinite deadlock, with local jurisdictions making their own bylaws and ordinances, especially since the whole concept underlying US government is deadlock and dilution of Federal power.

Okay, I'm sorry but you've got to be kidding. The point of having a Supreme Court is so that we can get reasonably final rulings on controversial issues. Cases like Roe v. Wade and Brown v. Board of Education prove that the Supreme Court is at its most valuable when it tackles controversial issues regarding the proper reading of the Constitution. Moreover, there are problems associated with having different jurisdictions promulgating different rules, such as differing expectations as to what people should be able to expect, and there are issues that neither the legislature nor any individual state is in any position to handle on its own. As an example, do you really think that AMENDING THE CONSTITUTION to define "militia" as "National Guard" is an expedient solution to the problem? How can anyone claim that this is a more expedient solution than a SCOTUS decision on the matter? Moreover, past amendments have sometimes been deliberately targeted to either overrule or preempt a SCOTUS decisions, proving that there is interaction between the Constitution and SCOTUS decisions even after the decisions are promulgated. Finally, it's not like the Supreme Court is compelled to issue rulings on very many topics. They largely get to set their own agenda, and by all accounts this is a case that they chose to review. So what's your problem with the system?

[Turin]

I listened to a good chunk of the recorded oral argument on C-SPAN. It was a little hard to follow (they kept referencing centuries-old legal precedent, like the question about whether or not the 1689 English Bill of Rights was more or less restrictive on gun ownership), but a lot of it seemed to come back to what constituted a valid "militia" weapon.

Now, I'm not a lawyer, but this doesn't make a lick of sense to me. What the hell does the original intent of the "militia" clause have to do with the DC case?

None of the rights given under the Bill of Rights are really absolute. We restrict most of them under exceptional circumstances of one sort or another. Many of these circumstances are good reasons -- we eliminate the right against search & seizure for persons getting on airplanes, for example. Why shouldn't cities that have demonstrated absurdly high rates of gun deaths be permitted to make guns (and/or their sale) illegal within their boundaries? This is a pretty clear-cut case of consequential ethics winning out over some abstract legalistic rule. One could argue (although I wouldn't) that the anti-gun law in question won't actually reduce gun crime, but that's not the argument being made here as far as I can tell.

[Coyote]

It seems to me that to anybody who understands English, that the amendment only applies to members of a Militia. Therefore, if the state decided to regulate the size of Militias they could regulate indirectly, guns. In fact, the word "regulated" is even right in the text.

The problem is, if "the People" referred to in the 2nd Amendment refers only to the state militia, then who does "the People" refer to in the First Amendment's right to free speech-- only state government newspapers? And does "the right of The People to be secure from unreasonable search and seizure" only refer to state land and employees?

The Founding Fathers could in no way have anticipated the technological revolutions which would transform warfare... the aeroplane, the machine gun, and the tank...

True, but then the Founders probably could not have comprehended the Internet or television, but no one would argue that these are not protected by Free Speech.

The Ten Amendments are supposed to be the "unassailable rights" left to individuals-- some, I think Jefferson primarily, did not want the 10 Amendments since he felt that their inclusion would be tacit approval for the government to soak up all other rights not spelled out directly (hence the 10th Amendment leaving "anything not specifically enumerated here is the purview of the States" (paraphrased).

Again, that it is in individual right to bear arms is not disputed; but it is the nature of what makes a reasonable restriction. Area-effect weapons (for example) are probably considered a "reasonable" restriction because there is no way for the "firer" to control their release (whereas a gun must be aimed at a target and so no ignorance about what results can be reasonably had).

A further argument can be had that since the Constitution is a Federal statute, it does not limit the States to limit further, so long as they don't ban completely. So they could say "okay, fine-- you can have handguns. And the handguns you can have are... .22 caliber, 2-shot derringers!" By allowing handguns, they are in compliance, but by allowing essentially pathetic handguns, they are not allowing guns thought to be "criminal" out on the streets.

[Coyote]

Well, thanks for the replies but it looks like the solution is to amend the Militia Act to mean only the National Guard.

This has been advocated as well, but part of that problem is that the National Guard is discriminatory in its hiring practices: since it has to comply with Federal Army regs, women can't serve in combat, diabetics, epileptics, or people in wheelchairs can't serve, etc.

Some states do have official unpaid militias, I think like the "territorials" in the Commonwealth countries (if I understand correctly), but again they have to own & equip their own weapons.

[Sea Skimmer]

Why shouldn't cities that have demonstrated absurdly high rates of gun deaths be permitted to make guns (and/or their sale) illegal within their boundaries? This is a pretty clear-cut case of consequential ethics winning out over some abstract legalistic rule.

So your position is the ends justify the means? That’s a dangerous default opinion to have on matters of civil rights. Anyway the Washington DC handgun ban has been 100% ineffective at reducing gun murders, in fact DC is top in the nation for gun murders… and law abiding citizens can’t have handguns which are most suited to personal protection. Funny don’t you think?

[brianeyci]

Okay, I'm sorry but you've got to be kidding. The point of having a Supreme Court is so that we can get reasonably final rulings on controversial issues. Cases like Roe v. Wade and Brown v. Board of Education prove that the Supreme Court is at its most valuable when it tackles controversial issues regarding the proper reading of the Constitution. Moreover, there are problems associated with having different jurisdictions promulgating different rules, such as differing expectations as to what people should be able to expect, and there are issues that neither the legislature nor any individual state is in any position to handle on its own.

As an example, do you really think that AMENDING THE CONSTITUTION to define "militia" as "National Guard" is an expedient solution to the problem? How can anyone claim that this is a more expedient solution than a SCOTUS decision on the matter? Moreover, past amendments have sometimes been deliberately targeted to either overrule or preempt a SCOTUS decisions, proving that there is interaction between the Constitution and SCOTUS decisions even after the decisions are promulgated. Finally, it's not like the Supreme Court is compelled to issue rulings on very many topics. They largely get to set their own agenda, and by all accounts this is a case that they chose to review. So what's your problem with the system?

1. Rogue 9 mentioned that the Militia Act was amended in 1958, so I assumed it was possible. Your righteous outrage is completely unwarranted, especially since the comment is tongue in cheek with a smiley.

2. The point of a Supreme Court is not to issue final rulings on controversal issues. The Supreme Court part of the Federal (say it again, Federal) trinity of executive, legislative and judicial branches. Viewed in that context, it is part of the system of checks of balances. Illuminatus Primus, someone more wise than me has said that the US system is not ruled by a bunch of almighty arbiters, making laws by fiat. Seen that way, the Supreme Court is a safety valve, like the Queen of England, only used when the executive and legislative branches fail to reach a consensus, and only when absolutely necessary. Do you dispute this characterization? I particularly dislike your use of the word "final" because it seems in complete, utter contradiction with your idea that there's interaction. A one-way decree is not interaction. Apparently you're angry that the judiciary doesn't issue black and white rulings and tries to appease as many people as possible.

3. Obviously there would be interaction, because there is always conflict, and I never said otherwise. All I said was in reply to Sea Skimmer's point -- that the Supreme Court should not be forced to make rulings, and he says it should be. Apparently you agree with me: so what is your problem with what I said?