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Friday, November 30, 2007
Paul Greenberg :: Townhall.com Columnist
Whose Right to Bear Arms?
by Paul Greenberg
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There long has been a legal, almost philosophical, question hanging over the Second Amendment. While it protects the right to keep and bear arms, is that an individual right or may it be exercised only in connection with the state's need to maintain a militia?

The exact wording of this much-disputed amendment has been the subject of many an historical and even grammatical debate. To quote the sacred text itself: "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."

Is that introductory clause only an explanation of why citizens have a right to bear arms, a kind of rhetorical fillip, or is it a restriction on that right?

That kind of question makes good grist for legal seminars and after-dinner conversations, but now - Uh oh! - the Supreme Court of the United States has decided to rule on it by agreeing to review a decision out of Washington, D.C.

That decision found that the capital city's sweeping gun-control ordinance violates the Second Amendment by making it illegal for ordinary citizens to own a handgun. (Even privately owned rifles and shotguns must be kept "unloaded, disassembled or bound by a trigger lock.")

The result has been just what you might think - the law-abiding are legally deprived of handguns while the lawless show as much respect for this law as they do others.

To quote Cathy Lanier, Washington's acting chief of police: "Last year, more than 2,600 illegal firearms were recovered in D.C., a 13 percent increase over 2005." The bad guys seem to have no trouble finding a weapon in the nation's capital, while the innocent are legally disarmed.

The numbers tell the tale: In the five years before this anti-gun ordinance was adopted in 1976, the murder rate in D.C. was dropping: from 37 for every 100,000 residents to 27. Five years later, the murder rate was back up to 35 per 100,000.

Over the course of the 30 years that this ordinance has been in effect, the annual murder rate has fallen below its 1976 level only once. No one can seriously contend that this law has cut down on crime. Quite the contrary.

"This comports with my own personal experience," writes Mike Cox, who is now attorney general of Michigan. "In almost 14 years as prosecutor and as head of the Wayne County (Detroit) Prosecutor's Office, I never saw anyone charged with murder who had a license to legally carry a concealed weapon.

"Most people who want to possess guns are law-abiding and present no threat to others. Rather than the availability of weapons, my experience is that gun violence is driven by culture, police presence (or lack of same), and failures in the supervision of parolees and probationers."

Washington's largely futile ban on handguns also has run afoul of constitutional scholars who see an individual right to keep and bear arms in the Second Amendment, not just a collective right to maintain a militia.

Now, with the Supreme Court's having agreed to review this case, some see a chance to clear up - once and for all - any doubt about the Second Amendment's reach, and establish beyond cavil the individual's right to bear arms in this Republic.

But beware of courts when they decide to hand down a definitive decision about a long-debated principle of constitutional law. That's what happened in 1857 when Chief Justice Roger Taney decided that the Supreme Court over which he presided was going to clear up the cloudy legal issues hanging over the South's peculiar institution.

The result was the Dred Scott decision, surely the high court's worst ever. It made slavery not just a peculiarity confined to part of the country but legal everywhere, voiding the those hard-wrought compromises that had managed to preserve the Union ever since its founding. And The War came. The moral of this story: Some questions are best left to time, precedent and the evolving standards of the common law.

It happened again in 1973, when the Supreme Court in its wisdom installed abortion as the law of the land rather than leave so morally troubling a question to the several states. Instead of resolving the issue once and for all, the high court ignited it. The acrimony over abortion now has been mounting for decades and shows no signs of abating. That tends to happen when courts lose the sense of restraint that ought to mark prudent law.

Now the court has agreed to open another Pandora's Box. (Or, as an Arkansas politician once put it in one of his wilder flights of rhetoric, a whole box of Pandoras.) Never mind that for decades now the question of the Second Amendment's root meaning has been left open while a consensus gradually formed, namely that the individual's right to bear arms does not mean the government cannot regulate that right for good reason.

To quote a balanced appellate decision back in 2001 out of the Fifth Circuit (U.S. v. Emerson), the "Second Amendment does protect individual rights (but) that does not mean that those rights may never be subject to any limited, narrowly tailored specific expectationsŠ."

The ruling in Emerson upheld an act of Congress denying the right to buy or carry a gun to someone who was under a protective court order for good reason. In that case, the defendant had threatened his estranged wife.

The decision in Emerson made good sense - and good constitutional law. The right to bear arms may belong to the individual, but that doesn't mean it's an absolute right that trumps society's interest in saving life and preserving the peace.

The court could have declined to review this appellate decision out of the District of Columbia, and just left it standing. That way, the justices would not have run the risk of handing down a landmark decision that could overturn not just one bad law in the District of Columbia but sensible gun laws throughout the Union. On the other hand, the court in its zeal for clarity could undermine the fundamental right of all Americans to bear arms.

Here's hoping the justices will practice a much praised but less practiced principle called judicial restraint, and recognize that every right, including the right to keep and maintain arms, carries with it a responsibility. And that government should protect not only our rights, but our safety.

Some questions of abstract principle are better left unresolved rather than resolved clearly - and wrongly. When it comes to making law, ambiguity is a much under-rated virtue.

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read carefully...

"The bad guys seem to have no trouble finding a weapon in the nation's capital..."

You know, Virginia's not very far from D.C., and we all know how hard it is to get a gun in Virginia.

"In the five years before this anti-gun ordinance was adopted in 1976, the murder rate in D.C. was dropping: from 37 for every 100,000 residents to 27. Five years later, the murder rate was back up to 35 per 100,000."

This is a perfect example of why you can never trust anybody who doesn't show you the data. Both 1971 and 1981 were much higher than the years immediately before and after. Here's the data from http://www.disastercenter.com/crime/dccrime.htm:

1967 22.00
1968 24.10
1969 35.96
1970 29.21
1971 37.11
1972 32.75
1973 35.92
1974 38.31
1975 32.82
1976 26.78
1977 27.83
1978 28.04
1979 27.44
1980 31.49
1981 35.06
1982 30.74
1983 29.37
1984 28.09

From the data, one could just as easily say that the average murder rate for the 5 years before 1976 (35.38) was much higher than for the 5 years after (29.97).

.


Sean Taylor
I'll bet Sean Taylor (in heaven now) wishes he had kept a handgun in the bedroom. Nobody kicks down a door when the person on the other side has just put a hole in it. That's all he would have needed to do. No one dies, burglars leave house immediately.

Are they STILL confused...
by the Second Ammendment? Let me make it simple for them in my own words: ignore the militia statement as one from the past; the document was written 218 years ago. States had their own individual armies. The important part is the "we". The Declaration of Independance begins with "We, the People..." meaning the citizens of the (newly-formed) United States. Get it? We is us. And "we" has to clean his gun, so if you'll excuse me...

Mr. Greenberg there is a lot wrong with
your reasoning here. First off, any child who understands English would have no problem understanding the 2nd amendment. The first part explains why we have it and the rest says that the federal government can not do ANYTHING to reduce the right to keep and bear arms. It is only stupid gun grabbing liberals who think that they can torture some kind of meaning out of the first part of that sentence. Also notice that that is "may not do anything". Now I haven't reviewed this "Emerson" decision that you are discussing, but it seems to me that the implication was that a court simply ordered that he may not purchase a gun or carry one and that this was done as part of a restraining order without a trial. One's "rights" may not be denied except under "due process" which for citizens means a trial in which one is found guilty of a a felony or one has been found to be mentally incompetent.

The other thing I would pick a bone on is the Dred Scott decision. This one is dragged up every time someone wishes to show an example of "bad" jurisprudence. Regardless of what one thinks about the institution of chattel slavery, Dred Scott was not a case of exceptionally bad constitutional law. The constitution did, in fact, recognize slavery which had been in place in the Americas since the 1500s. If the constitution had not included that recognition there would have been no constitution and we would still be operating under the articles of confederation. The question of constitutionality was settled by the 13th amendment.

If you are really looking for some bad law examples look no further than most of what has been done since the Warren court and the cases upholding FDR's socialism.

There isn't a right...
...in the whole Bill of Rights that doesn't have limitations including the right of free speech.Cannot yell "fire" in a crowded theatre when their isn't a fire.Cannot print libel in a newspaper irregardless of Freedom of the press.The old time sherrifs in the West had all the cowboys passing thru town to turn in their guns until they left.All for good practical reasons.

The problem seems to lie in the fact that five citizens,if those five citizens happen to be sitting on the Supreme Court,get to make the laws for the whole country,instead of letting all subordinate governments make their laws and if the local citizens don't like it,they can work to change them.

It is a delemma (sp) that will never be resolved in this country.So Mr Greenberg does have a point.

I fail to see the problem
The Second Amendment is very clear to all but those who want to outlaw the private ownership of guns.
This IS NOT a man made right, and the Second Amendment DOES NOT GIVE US the right to "keep and bear arms."
It simply states that that GOD GIVEN RIGHT can not be infringed, or denied, by the government.

All one has to do to see that gun grabbing laws do not work is look at how the crime rates soared in Australia after they banned and seized the guns from private citizens several years ago.

Then there's the matter of what John Lott, who was originally researching gun ownership in defense of gun bans, found during his research. That was that the more often private citizens own and legally carry guns, and it's made known that they can, the lower the violent crime rates went in those areas.

As for me, the gun grabbers can have my guns only when they pry them from my cold, dead hands.
If they try to take them before that, they'll get them one bullet at a time.
And I DON'T MEAN that I'll hand them those bullets.

BS Detector
Using the figures you have provided it would appear that the restrictions placed on the citizens of the District have had no appreciable effect on the rate at which they murder each other.

Nam65-66
In the days of the "old West" we did not yet have "incorporation" so it was OK for localities to have their own laws regarding gun control. And we do have restrictions on the 2nd amendment. The first bars automatic weapons and short shotguns and the 2nd is the 1968 act. Both of these I consider unconstitutional.

As for restrictions on the 1st amendment, try suing a newspaper for libel some time. Since Sullivan it is virtually impossible. All of these so called restrictions are manufactured by the courts. They should be based on the wording of the amendments, as altered for incorporation. i.e. Congress (and the States) shall make no law etc.

And finally, nothing prevents you from yelling fire in a theater. You will however be forced to suffer the consequences if damage is done. That is really what the 1st amendment is all about. There can be no prior censorship and in selective cases, the government can not punish you afterwards.

Silicondoc
"the right of the people to keep and bear Arms, shall not be infringed.
I'm one of the people, I have the right, and it shall not be infrigned."

Exactly. Well-said. Why would the second amendment be the only amendment in the Bill of Rights that does not apply to the individual. Sure the 10th is shared by the states and the people, but the people are clearly mentioned...

"When firearms go, all goes. We need them every hour."
- George Washington

"The great object is that every man be armed."
- Patrick Henry

"It will be found an unjust and unwise jealousy to deprive a man of his natural liberty upon the supposition that he may abuse it."
- George Washington


On the Second Amendment
It's worth noting that 10 USC Sec 311 defines the militia as "...all able-bodied males at least 17 years of age and ... 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."

Short version: it's pretty much every male. And in this age of nondiscrimination, preventing people from owning handguns simply because they are old, disabled, female, Quakers, or legal, non-citizen residents is not the right thing to do.

Check with NRA
They have monthly reports where a weapon in the home stopped cold home invasions. It is ridiculous to think a cop will save you when you're on your own and attacked.

Detector
I note that you picked 1984 as your stopping point for your figures. Any particular reason? Could it be that the murder rate in DC the mid 80s started to shoot way up (no pun intended)? By 1988 they were calling DC the murder capital of the world. (I live in Northern Virginia. That was the local news at the time.) By 1988 it was 59.5, by 1991 it was over 80. It didn't drop back below 40 until 2004. The imediate effects are never the way to determine how a law works or doesn't. You have to let it steep for a few years to see the full effects, and the full effect of the gun ban was a dramatic increase in gang violence in mid-80s DC that has since spread throughout the region in both Maryland and Virginia.

I'll agree that Greenberg's choice of 5 years of data was probably not the best. You have to look at the whole picture. And the whole picture shows that the murder rate after the gun ban was far higher than it was before.

Supreme Court decisions
By the way, I take some issue with Mr. Greenberg's declaration that the Dred Scott case was the worst decision in Supreme Court history. While to our eyes, with the 20/20 hindsight of history, the decision was morally reprehensible, it was legally correct. The Court did not singlehandedly invalidate state laws that were not prohibited by the Constitutiton solely because the Court decided that it preferred something else. It decided the case based on the law at the time, which is what a court is supposed to do.

In Roe v. Wade (and other cases with similar "controversial" (read: wrong) decisions) the Court was both morally AND legally wrong. Specifically, it pulled a previously unknown right out of a hat and declared that the several states could not violate that right. The Supreme Court really was never even intended to get involved in state matters, except where they directly violate the Constitution (such as restricting free speech or, interestingly enough, abridging the right to keep and bear arms). In Roe, the court specifically invalidated dozens of state laws solely because it did not agree with them ideologically, and not for any solid, legal reason whatsoever.

Rudy tried to finesse
this issue at the last "debate". He called the 2nd an individual right, but seemed to support the draconian laws of NYC which are the same as DC.
The question needs to be clarified and these guys need to be held to a real answer.
I have a carry permit issued to me by the Commonwealth of Virginia..it should be as valid in all 50 states as my drivers license is and I shouldn't be subject to arrest unless I abuse that right. The Sullivan law in NY and other laws like it are prior restraint laws and should be held to be un-constitutional.


Silicondoc, Do you write for my
local election committee? I swear, they're paid by the word, and the more confusing the wording, the better they like it. Last election, they wrote a whole paragraph, asking if I supported the Constitution, without ever mentioning that the purpose of the question was to determine if our town Christmas tree should be called a Christmas tree.

As to bearing arms, I have a right to bear arms - even though I'm a girl, and it is precisely because of the GOVERNMENT that I was given that right. The founders were more afraid of the Government, than of thugs in the night, and rightly so.

When they come to take my children away because I spanked them, or did not put a helmet on them to ride a tricycle in my own driveway, they will be met with my constitutional right to bear arms.

Nanny government is the problem here, and the Constitutional right to bear arms is the answer.

"REASONABILITY"
The second amendment was a response to events, that were happening in France.That along with lingering sentiments of distrust,by the Anti-Federalist,gave purpose to this LAW!The controlling question must be put into a Historical context,if one is to reasonably understand it's application.Does the "THREAT" of government ever cease to exist?This is your query.Today,guns are a;commercial product,purposed to recreational activities,they are also used to protect ones family and property.The embedding of the aforementioned was present, when the amendment was first passed,even though they were not specifically mentioned!This has been a terrible year for Police,in that many have been KILLED,by handguns in the wrong hands.The "Supremes" cannot restrict the rights of the individual, in this particular case,unless it can remove the "THREAT" of government.This is Political Theater,another Political "TRICK",being perpetrated on the Faithful and GULLIBLE!!

Gun and logic
It seems that when there is a problem liberals in particular want to solve that problem by going after people who are not the problem. Guns is a prime example. They do not want you to own a gun because there is gun violence. You have a firearm in your home which is safe and secured, you are not a criminal, you have never shot anyone. They want to take that gun because of what you or others might do with it. After Katrina the cops wanted to do something about the roving criminals so they started going house to house seizing guns without regard to the 4th amendment. The problem is not guns it is criminals. Another thing. What about the anti-gunner elites that are protected by people carrying guns. They have a body guard because they have power and/or money. Joe Sixpack has no power or money but he is not supposed to have a firearm for his own protection. My concept is that a privately owned firearm is a poor man's bodyguard.

Think of it this way
Some judge somewhere ruled it is not the job of the police to stop crime, or something to that effect. And in a way I can see his point. If they could be everywhere at once there would be no crime, BUT they cannot! No criminal in their right mind is going to wait for a cop to show up and stop them. And even if they could, I will still not give up my rights. Would you give up your right to save your family from a violent crime? Would you take my “god given right” to protect mine? Ain’t gonna happen! I do not care what they rule, if you come calling at my house in the wee hours of the AM without knocking at the door, we will not be swapping spit in a warm shower.

Free Ramos and Compean
If we can’t have HOME SECURITY first, the rest just don’t matter!
Hunter/Tancredo 2008!
http://www.gohunter08.com
http://www.ontheissues.org/Duncan_Hunter.htm
Hunter’s best quote: Move away from the Ted Kennedy Wing of the Republican Party. (Jun 2007)
To libs there is no lie, it is expedient exaggeration!

Justice and self-preservation
will not be denied. Individuals in society will always find a way to preserve both.

When law enforcement fails society turns to organized militias. If those fail, they choose vigilantism. After that, revolution. Our forefathers understood this and provided the means in the second amendment.


What those first two clauses really say
Take a look at the full text of the Second Amendment and think about what those first two clauses really say.

The founding fathers included, in the text of the document which created a nation, the idea that the individual states within that nation must retain the ability to ensure their own security from the overarching government of the nation.

The right to keep and bear arms pre-exists the Second Amendment, but does the Second Amendment really apply to the states? The text suggests it does not, as the guarantee of that right is predicated on the security of a free state being dependent on a militia.

What is likely to happen in the Court is a ruling which holds that the federal government cannot infringe on the right of the people to keep and bear arms, but that the states can do so if they choose. Which leaves us just about where we are today anyway. The only open question then is DC, which, being a creation of and creature of the federal government, may well be considered to not have that power even if the states do.

I fully support the right of any person to arm themselves for the purposes of defending their lives or just for fun, but don't count on the clear language as a gimme when it comes to the people on the Court. There's plenty of wiggle room, and plenty of precedent, to suggest they will find a way out.

the big picture

the overall context behind the bill of rights is about protecting individual rights, NOT government rights. why would the second amendment be an exception?

Second Amendment not necessary
"...is that an individual right or may it be exercised only in connection with the state's need to maintain a militia?"

Would the Second Amendment be necessary if it meant "collectively"? Even your most oppressive government in the world allows its militia members to "keep and bear arms collectively".


justpaul writes:
as the guarantee of that right is predicated on the security of a free state being dependent on a militia.


Now there is a thought, if we ALL refuse to join the national guard or the military, maybe they would start to get the point that WE THE PEOPLE have the right to keep and bear arms!

Free Ramos and Compean
If we can’t have HOME SECURITY first, the rest just don’t matter!
Hunter/Tancredo 2008!
http://www.gohunter08.com
http://www.ontheissues.org/Duncan_Hunter.htm
Hunter’s best quote: Move away from the Ted Kennedy Wing of the Republican Party. (Jun 2007)


KM
Maybe you are already aware that the state of Mass legal idiots are forcing a vote on wether or not to make it "illegal" to spank YOUR child. I think those idiots are the ones that should be forced to drop their drawers and be spanked in a public square. Without a doubt some of them would probably "like it"

Common sense
and certain evidence convinces me that the police cannot prevent someone from causing me harm, it's impossible in most cases. As a matter of fact the due process is only there as a means to deal with the "after the fact".

As always, I stand by common sense before being blindsided by special interests. It doesn't really matter to me how others think I should respond to any situation, they cannot possibly comprehend what any given moment may change or end my life. Why would you trust someone with your life when you can't even trust them with your money or the best interest of your country?

Therefore, I will continue to go by the rule of "I'd rather be judged by twelve, than carried by six"!

Now that's not really that hard to understand, is it?

Ninth Amendment and guns
The Ninth Amendment clears up all of the ambiguity about a militia, because it says that we have the right to protect ourselves with a gun even if the founders forgot to mention that in the rest of the Bill of Rights. The problem is that the Supremes protect and defend the erroneous decisions of dead judges (precedents) more than they protect and defend our "living document" written in disappearing ink on Silly Putty. http://www.poorgrandchildren.com

Dosent matter what the law says
You want em come and get em! Over my dead body!

The 2nd Amendment...
is not about hunting. It is about "...maintaining the Security of a Free State." That means the State can only remain free if the citizens have the means to prevent or have the ability to throw off a repressive government. The Founders wanted the several states to have the ability to protect themselves in the event the Federal government became oppressive. That is why it is written the way it is. Only politicians and governments taht have a real fear of the People would want to disarm them. Of course, they'll say "It's for the children." Mine can shoot...can yours?

Police protection
I have seen the issue of police not being required to protect people mentioned several times. This piqued my curiosity so had to do some research. I have found the actual case and it doesn’t read quite that way. The case is Castle Rock v. Gonzales which I have linked to here.

http://www.oyez.org/cases/2000-2009/2004/2004_04_278/

The case involved a woman who had a restraining order against her husband while seeking a divorce. The husband violated the restraining order and ultimately killed the 3 children. The woman sued the city in a federal court because the city had “willfully not enforced the order” and her children had been deprived of their lives without “due process”.

Personally I find it strange that the Supremes ruled on this via a “property interest” instead of just overturning the appeals court. The district court had ruled correctly in that there was no due process issue. I gather that the plaintiffs went after the due process error because the Supremes had already ruled that police could not be held accountable all the way back to 1856 in South v. Maryland. In this case the court ruled that a sheriff, as a public officer, was liable personally only for misfeasance or nonfeasance of ministerial acts, where the sheriff is bound to an individual for a fee or salary, but not for a breach of his public duty.

http://members.tripod.com/~mdean/immunity.html

I guess if the courts did not rule this way cities and counties all over the country would be constantly sued every time a crook committed a crime.

Help the 2nd Amendment!
Buy more guns!

It's a created Pandoras Box.
__The container of Pandora held the evils that, when opened, were released. What the Supreme court deals with, today on this issue, are the evils that swarm around our foundation. Powers of individual ideology using, and defining, our Constitution according to their perceived definition. Supreme Court powers who have individually used the passion, and heat of the times, to, with fault, rule by speculation of the times. The interest of faction, a segment of society with a loud voice, deep pockets, over ruled the voice of the majority. The Republic. Later Supreme Courts, diligently reviewing history, the times, and voices of the people, and convention papers, have reversed those decisions. The people, not lawyers, who read, and approved of our Constitution, spoke of its value, just as we speak today. It is the voice "of the people, for the people, and by the people." SO BE IT!

Pffft
The Second Amendment should not be negotiated. The rights of the people to keep and bear arms shall not be infringed. I think "infringed" is a very telling word choice.

1st Amendment: Right of THE PEOPLE (free speech)
(wait for it...)
3rd amendment: Right of THE PEOPLE (property)
4th amendment: Right of THE PEOPLE (illegal search)
5th Amendment: Right of THE PEOPLE (legal rights)
6th Amendment: RIght of THE POEPLE (speedy trial)
7th Amendment: Right of THE PEOPLE (Jury trial)
8th Amendment: Right of THE PEOPLE (Cruelty, bail)
9th Amendment: Right of THE PEOPLE (More Rights)
10th Amendment:Right of THE PEOPLE (To Run Their States)

So, the 2nd Amendment is (according to Giuliani) debateable? That alone should disqualify that fascist pig from being our President.

right to bear arms
I believe it is my right to own a weapon if I so choose under the constitution.
Going target shooting will show you that the average person is far out guned by the cults and criminal element.
People such as myself most likely will never fire a weapon in anger or self defense.we do live in a violent society and should be armed for our self defense.


SCOTUS and CIVIL WAR
The SCOTUS has a fairly bright group of folks. I find it hard to imagine that they would not realize that if they allowed or started the elimination of the right to bear arms that this would be the start of a CIVIL war in the US.
I like most here WILL NOT simply give the government my firearms. We will DIE first. As for myself I would fight to the last two bullets. One for my dog and one for me...in that order.
Blinding foolish liberalisim from SCOTUS could bring about this circumstance.

Liberal dogooders are strangers to logic
As a result, they always go to the most simplistic, feel-good solution, regardless of facts:
-Guns kill people but automobiles do not.
-Guns require regulation but knives, baseball bats, etc do not.
-Criminals will not comply with any other law, but will magically honor gun laws.
-Law abiding gun owners, with no criminal record are the problem.
-Municipalities with the most severe gun laws are mysteriously the same ones with the highest crime rates.
-Conceal and carry States have the lowest crime rates, again mysteriously.

By this logic, do not ever go to a liberal physician. He is very likely to prescribe treatment for the symptoms rather than the disease.


justpaul - What is likely to happen...
Unlike in the First Amendment, the Second Amendment does not ONLY restrict the Federal government from making a law infringing upon the right in question (i.e. "Congress shall make no law...").

The limitations on the power of government outlined in the 2nd Amendment are TOTAL - it prohibits every government entity within the U.S. from infringing upon our right to keep and bear arms (federal, state and local).

By an extension of your argument regarding the probable outcome of the case at the SCOTUS, the Federal government would be forbidden from initiating cruel and unusual punishment (amendment #8), but the States would not. I do not think that is the intent of the Constitution and I do not think the SCOTUS will rule that way.

RE: ROBZUC
The phrase "We the People" is not contained within the Declaration of Independence. Ya might wanna review the Constitution to find that one.

Eliminate Ambiguity - Make a Precident
Paul Greenberg offers, "Some questions of abstract principle are better left unresolved rather than resolved clearly - and wrongly. When it comes to making law, ambiguity is a much under-rated virtue."

Interesting conclusion.

However, I prefer bringing it out in the open than left to ambiguity. Such things as the "Dred Scott" ruling would not be universally denounced if it were never presented. I say, bring out the bogus arguments and decisions and let us engage them in the open.

As to the Second Ammendment, the Constitution, by definition, only addresses the Government's role and its authority to meddle with the citizens' freedoms. Unless stated in the Constitution, the Government has no involvement with the freedoms of the citizens. Sometimes, as with the Second Ammendment, the Constitution explicitly promises that the Government will not meddle with a freedom. In this case, "...the right of the people to keep and bear arms, shall not be infringed", promises that the Government will not infringe on the people's freedom to keep and bear arms.

Seems pretty clear to me.

RE: Vic
The reason why the Dredd Scott decision was a bad decision isn't because slavery is mentioned in the Constitution. Point in fact, the only reference to slavery is the prohibition of congress to make any laws pertaining to slavery until 1806, and that is it.

The reason it was a bad decision is because it extended slavery even into those states that had laws prohibiting it. The 9th and 10th amendments clearly state that the federal government -- SCOTUS included -- does NOT have the authority to demand states that prohibit slavery to lift their bans.

X-Wyomingite
I made my posting before I scrolled up and read yours. I agree with you completely. Changing the 2nd amendment would start a civil war. Probably at first the police would try to enforce confiscation of firearms. But after a few of them and some of their friends and neighbors and family were killed resisting, they would stop or resist also. Then the military would probably be brought in. Ultimately lthis would also fail. The legislators would then become the targets of the local militias. The militias that the 2nd amendment was written about to protect us from intrusive/dangerous governments.

Founders words

GEORGE WASHINGTON:
"Firearms stand next in importance to the Constitution itself. They are the
people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than
99% of them [guns] by their silence indicate that they are in safe and sane hands. The very
atmosphere of firearms everywhere restrains evil interference [crime]. When firearms go, all goes,
we need them every hour." (Address to 1st session of Congress)

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
Thomas Jefferson

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
Thomas Jefferson


Sic Semper Tyrannis

RE: Vic
The 1932 (or was it 1931?) law that you are referring to does not "bar" anything. It places a $200 tax on the transferal of machine guns and shotguns with barrels less than 18". The 1968 law makes paying the tax a crime (yeah, weird law to say the least), and machine guns and short shotguns were not banned outright until 1985.

Interestingly, if we are to use the logic behind the 1939 SCOTUS case "upholding" (I put that in quotes because it really doesn't uphold the law) the tax law, then machineguns are, in fact, constitutionally protected. In US versus Miller (1939) SCOTUS ruled that the only guns that are protected by the 2nd Amendment were those that could be used by a militia or military. They then proceeded to state that since short barrel shotguns were used by neither (point in fact, short shotguns have been, and continue to be, used by our military since before WWI), short ghostguns are not protected by the 2nd. In upholding that law, they seemed to ignore the fact that the same law restricts machine guns as well, and NOBODY could credibly say that a machine gun wasn't used by the military. (Hence the reason the decision really doesn't "uphold" that law...it's an ambiguous decision that really says nothing).

Bill of Rights is a bill of INDIVIDUAL
rights and not a bill of collective rights.

Individuals have the right of free speech, free assembly, freedom of religion, to vote, etc. Why would the 2nd not address an individuals right when all the others do?

Besides the SC would never overturn 200+ years of individual gun ownership.

Wayne
You're arguing from your heart, but not from your head.

There is nothing in the Second Amendment which says it is a total ban on infringement. I believe it is. You believe it is, but does Ruth Bader Ginsburg?

Because of the wording, one can, and I'm sure someone will, argue that because the ban on infringement of this right is predicated on the security needs of a free State, the States retain the power to infringe on this right as they see fit. This is pretty much what we have now.

The Tenth Amendment, furthermore, opens the door to exactly what I said, as it is unclear whether the States have retained the right or the People. And since we already have all kinds of infringements of that right at the State level, the Court can easily decide that the ban applies only to the federal government, if only to make their own lives easier.

I agree with you about what it should be read to mean, but I think four liberal Justices and one swing vote can, and will, choose to see it otherwise. Worst of all, they can do so without taking a hard line stance by upholding the Circuit Court on the grounds that DC is not a state and therefore does not retain that power under the Second Amendment, but that the 50 States do have that power.

DerKreiger
You are correct in your assesment of the 2nd. But, you stated "Besides the SC would never overturn 200+ years of gun ownership"--well I think that's what the Australians thought right before they started confiscating guns a few years ago. Nothing is impossible in this day and age.

The interesting part
One thing I'm hoping for is that Justice Kennedy writes the opinion or dissent, whever side he is on (preferably the dissent.) I want to see if Kennedy cites British, Australian, or some other non-US law in his decision. He's done that sort of thing before. When he wrote the Opinion of the court in the case where they decided that 17-year-old murderers couldn't face execution, he cited (I think it was) Jamacan law as an example of one of the sources of his opinion on a US State law vis a vis the US Constitution.

Whose rights??
Quote:"There long has been a legal, almost philosophical, question hanging over the Second Amendment. While it protects the right to keep and bear arms, is that an individual right or may it be exercised only in connection with the state's need to maintain a militia? "

The Bill of Rights are in the Constitution because some states refused to sign on to the new republic called the United States unless and until there was SPECIFIC and EMPHATIC language in the new Constitution PROTECTING STATES AND INDIVIDUALS from the government. The Second Amendment is part of that language.

Quote:"Is that introductory clause only an explanation of why citizens have a right to bear arms, a kind of rhetorical fillip, or is it a restriction on that right?"

Anyone asking that question is a product of the government operated schools or someone with an agenda. Once again, the Bill of Rights are NOT in the Constitution to restrict the rights of the states or of individuals. They are there to RESTRICT THE RIGHTS OF THE FEDERAL GOVERNMENT from infringing on either states or individual rights and they CLEARLY say that.

Citizens of the United States have God given inalienable rights that are endowed by our creator and not those granted or LIMITED by government. The Constitution says exactly that to anyone with enough brains to read it, but given the quality of the government operated schools in the United States over the last half century, it is easy to see how most graduates of those indoctrination centers are easily confused if indeed, they can read the Constitution at all.


Molon Labe
.

Whose Rights?
Here are what the guys who wrote the Constitution and signed it said about owning guns:

Arms in the hands of citizens may be used at the individual discretion, in private self-defense." John Adams, A Defense of the Constitutions of Government of the United States of America, 1787-88

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." Samuel Adams, During the Massachusetts U.S. Constitution ratification convention, 1788

"Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust God it will forever remain, in the hands of the people." Tench Coxe, Philadelphia Federal Gazette, Feb 20, 1788

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." Tench Coxe, in "Remarks on the First Part of the Amendments to the Federal Constitution." Philadelphia Federal Gazette, June 18, 1789

"The best we can hope for concerning the people at large is that they be properly armed." Alexander Hamilton, The Federalist Papers at 184-8

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined. The great object is that every man be armed. Every man who is able may have a gun." Patrick Henry, During Virginia's ratification convention, 1788

The American People
will not willingly give up their guns, and there is no federal agaency that is large enough to take them. State and local folks would be lunatics to try and disarm their neighbors. As previously stated, there are enough (too many) infringements on the 2A as it is that the SC may very well just determine that it is a stae issue...something they should've done in 1973 (allowing the states to make their own determination).

Whose Rights?
I believe than a person’s moral compass can be determined by how he references the right of free men to defend their God given gift of life. That there is an argument in America that a free man can defend himself or his family is absolutely preposterous, completely unacceptable, and I will not accept it. That politicians would try to tell me they will dictate where, why, when, or if I can defend myself is ludicrous and I will not accept that. Until and unless there is an amendment to the Constitution passed by both houses of congress, signed by the president, and ratified by two thirds of the state legislatures within a seven year time period that makes null and void the Second Amendment, the Second Amendment is my permit to carry concealed weapons—PERIOD!! Until and unless that is done, no politician can tell me that I can not. No court can tell me that I can not.

Whose Rights?
I believe than a person’s moral compass can be determined by how he references the right of free men to defend their God given gift of life. That there is an argument in America that a free man can defend himself or his family is absolutely preposterous, completely unacceptable, and I will not accept it. That politicians would try to tell me they will dictate where, why, when, or if I can defend myself is ludicrous and I will not accept that. Until and unless there is an amendment to the Constitution passed by both houses of congress, signed by the president, and ratified by two thirds of the state legislatures within a seven year time period that makes null and void the Second Amendment, the Second Amendment is my permit to carry concealed weapons—PERIOD!! Until and unless that is done, no politician can tell me that I can not. No court can tell me that I can not.

"ambiguity is a much under-rated virtue"
when it comes to making law? What kind of thinking is that Mr. Greenberg? Thomas Jefferon said of the Constitution that we should adhere to the plain meaning of the words. That doesn't sound like an endorsement of ambiguity!

What the Supreme Court needs to do in this instance is to follow Jefferson's advice and rule that there is no ambiguity, the people have the right to own firearms. We need to also get away from this idea that holier than thou politicans can regulate that ownership.

We already have anti-gun folks looking at veterans who have "PTS" symptoms and declaring that they be banned from owning any firearms. This backdoor parlor trick is designed to eventually restrict more and more people from owning guns. The do-gooders in congress have been talking about psychological testing of our kids in grade school. As soon as the psychiatrists label someone slightly "not normal", you can bet that that child will never be allowed to own a gun.

It is time we restore our authority as the rightful owners of this nation and send a very strong message to our elite politicans that we are reclaiming the birthright that they have cleverly stolen from us.

I urge all of you to visit my website, JOEOLIVAFORPRESIDENT.ORG, and find out how the elites have accrued to themselves tremendous power and how we can reverse that before it becomes impossible to do so. The 2008 election is vitally important to America and the actual maintaining of our rights in many significant ways. Please check out the site, why not? Are we going to allow the continued theft of our inheritance by the elites or are we going to stand up to their own personal power, fame, and wealth agenda? Thanks, Joe

Unalienable Rights
We as individuals are born with rights that may not be taken or surrendered.

Arms: I may own, carry, hide, display, use any weapon I choose to. I do not need permission from anyone.

Speech: I may say, write, publish, disseminate by any method, any word I choose, anywhere, anytime. No power on earth has competent jurisdiction to deny me this right.

If I use either of these rights irresponsibly I may be put on trial before a jury of my peers, who will in their informed judgement decide if I have been negligent in the exercise of my rights. If in their judgement I have infringed on the rights of others I may be held responsible for my action and required to pay some form of reparation for that transgression.

This is simple. This is the law. Any legislation, or regulation, from any body, that pretends to infringe upon my rights is NOT law, regardless of the opinions held by the member of SCOTUS.

beowulfe
The following parts of the constitution all pertain to slavery as it existed in 1789:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

My point was that the constitution recognized slavery and that if it had not, the Southern States would have never ratified it. The worst thing about the Dred Scott decision was contained in the “dicta” where it ruled that “Africans” could not be held as citizens of the U.S. even if they were citizens of a State. That however had no forcve of authority since it was in the “dicta”.

The ruling that slavery could not be prohibited in the territories actually has some basis when you look at it from the 1800 point of view that slaves were property and not humans. If that were not the case then the 14th amendment would never have been necessary.

beowulfe pt 2
As for the gun control laws, yes you are right but I was trying to avoid a lot of tedious detail. In fact, if you have the older versions of the machine guns you can still get a license for them but the “transfer tax” is now exceedingly expensive. In any case, I hold ALL gun control laws as unconstitutional except those that prevent felons from owning them. (And also those that prevent the insane from owning them).

Liberals have no problem degrading the C
What would propel us into serfdom faster than disarmament? Nothing. Commie Libs have been trying for years to enact a gun grab. Feinstein admitted it. The rest deny it, most notably candidate Clinton. She and her husband pushed on the country the most sweeping gun-ban in U.S. history. About tweny members of Congress lost their seats as a result of their disregard for the document they were sworn to protect.

The Federalist essays(the internet of the day)I'm sure will be consulted as to what the founders meant and what they indended with the bill of rights. Also as has been noted "The People" don't change from Amendment to Amendment or paragraph to paragraph. We the People are the same throughout. No matter what liberals want it to mean.

LAMESKI
Given the shrill tone of your posting, you aremost likely the keyboard cowboy. If you want to test your theory, I will send you my address
and you can TRY and get into my house some night.
Florida is a state that will not prosecut those who kill intruders into their home.
C'mon down.......keyboardkowboy.

The problem isn't guns
The problem is that government, be it federal or state, has its nose is absolutely everything from the purchase of firearms to spanding children to a "fairness" doctrine for public media to what you can and can't say in public without risk of losing your job. It's government that needs to be stopped.

I hate to admit this, but Ron Paul is looking better and better to me, in spite of the fact that I think he's partially a nut. But he sure is right about smaller and lesser government intervention into everything.

Constitutional Rights?
No constitutional rights? Put the kool-aid down and back away from the glass. I haven't read anything so pathetic since ... well, ever.

Source for your quotes? Links? Try again. SCOTUS has ruled on several occasions that the 2nd Amendment guarantees an individual right to keep and bear arms. Volumes have been written on the topic.

JohnLemski, context my boy.
__Context. A further quote might shine some light on the context, and truth of that remark.
"And, to the Bush Administration, the Constitution of the United States is little more than toilet paper stained from all the s--- (my edit) that this group of power-mad despots have dumped on the freedoms that "goddamned piece of paper" used to guarantee. Arguments from the left, and their liberal misuse of context is of their flimsy security. Educated idiots! Speaking of "parrots" Lemski, Johnny wanna cracker. I have a few left over from the venison pie I finished yesterday.

Never trust an interpretation...
...from a guy who can't even copy the amendment accurately.

The word "militia" is not capitalized in the 2nd Amendment. This is significant because at the time the Bill of Rights was adopted the "militia" was commonly understood to becomprised of every able bodied male in the community. Inother words, civilians. When you change "militia" to "Militia" you are implying there is but one, formal militia in the country and that this "Militia" is the centerpiece of the right to keep and bear arms.

The 2nd Amendment might also be less open to mis-interpretation if it were written in a grammatically correct manner. Separating the phrases "A well regulated militia" and "being necessary to the security of a free state" with a comma where none is needed or appropriate brings in confusion.

Still and all the key phrase remains "shall not be infringed". What part of this do gun grabbers not understand? "[S]hall not be infringed" means you can't limit it or qualify it. You can't touch it. Nobody can. Not the state, not the county, not the city, and not the feds.

If a "well regulated militia" comprised of able bodied civilians is no longer necessary to the security of the state (or the people), or if arms have become so fearsome and destructive that common folks can't be trusted with them, the Constitutional provision for modifying this absolute right is through the Amendment ( or repeal of Amendment) process. Not through the arrogant opinions of ordinary men and women who have mistaken their appointment to the courts as license to rule over the people instead of an obligation to serve the people.

Finally, statistics on gun violence are irrelevant to what the 2nd Amendment means. If we aren't getting the results we want the solution is Amendment, not re-interpretation.

Lemski writes
Source for the quotes? Didn't think so. No constitutional rights? I haven't heard anything that ingorant since ... well, I've never heard anything that ignorant. Now, put the kool-aid down and step away from the fridge.

A few minutes of research will reveal several SCOTUS decisions that affirm an individual right to keep and bear arms.

In defense of Dred Scott
I get a bit upset to hear Dred Scott cited as bad law.

One part of the decision was a ruling we could sue today: The Federal Government may not, through ex post facto laws, deprive a citizen of his property. That the property in this case was a slave makes others shudder, I know, but the principle (since largely ignored) is one we should applaud, not denigrate.

Yes, the ruling did also state that slaves were not citizens, but that is a logical and necessary condition for slavery to exist. if the court had declared slaves citizens, THAT would have started the civil war, as the ruling stands, it seems a bit peculiar (to say the least) to blame the Dred Scott ruling for the civil war.

Now I am sure someone will tear into me for supporting slavery, or something equally silly.

By the way, on the gun control issue, I have one thought: When the Constitution speaks of government entities, it uses the word "powers", when it speaks of citizens, it uses the word "rights". It seems to me a "power to arm" would belong to a militia, while a "right to bear arms" would belong to a citizen. At least, I have never noticed anywhere in the Constitution where a right was granted to any governmental body, always to citizens.