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The 2nd Amendment and the US Supreme Court

Brown

Penultimate Amazing
Joined
Aug 3, 2001
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On Tuesday, 18 March 2008, the case of District of Columbia vs. Heller will be orally argued before the United States Supreme Court. It is the only case scheduled for argument that day (for all other argument days in March, two cases are scheduled for argument). At issue is:
QUESTIONS PRESENTED:

Whether the Second Amendment forbids the District of Columbia from banning
private possession of handguns while allowing possession of rifles and shotguns.
...
THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED LIMITED TO THE
FOLLOWING QUESTION: WHETHER THE FOLLOWING PROVISIONS - D.C.
CODE §§ 7-2502.02(a)(4), 22-4504(a), AND 7-2507.02 - VIOLATE THE SECOND
AMENDMENT RIGHTS OF INDIVIDUALS WHO ARE NOT AFFILIATED WITH
ANY STATE-REGULATED MILITIA, BUT WHO WISH TO KEEP HANDGUNS AND
OTHER FIREARMS FOR PRIVATE USE IN THEIR HOMES?
Emotions are running high over this case, often to the point that there is a loss of good sense. The purpose of this thread is to discuss this case as adults, relying upon reason rather than dogma, and hopefully being or becoming well-informed about the legal issues.

Those inclined to read the briefs in the case--and there are a lot of them--can find the briefs at this web site.

The oral arguments will be big news tomorrow. I caution against relying upon what you may read in the media. Transcripts of the arguments will be available on the Supreme Court web site, and I strongly recommend reading what the justices and the advocates actually say, and the context in which they discuss the issues.
 
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Yeah, this is one both sides of the gun issue have been waiting a LOOOOOOOOONG time for. It's been bounced around for so long I was starting to wonder if the actual case was just an urban legend. ;)
 
For the hell of it, here are a few predictions about the oral argument:

A reference will be made to the Court's own security. In order to get into the Supreme Court building, citizens must prove they are unarmed, and must submit to metal detection. (This is now virtually standard at courthouses around the US.) What this means is that the Court has decided that having an armed citizenry is NOT desirable (at least on the Court's home turf), and that some sort of firearms regulation must certainly be constitutionally permissible.

The "intent of the Framers" will be mentioned quite a bit. What will also be mentioned (and I'm betting it will be mentioned by Justice Stevens or Justice Ginsburg) is that the firearms familiar to the Framers of the Bill of Rights are nothing like the firearms available today.

The notion of dueling will be mentioned.

A justice might ask whether, if the purpose of the Second Amendment is for citizens to possess weapons to protect themselves from governmental intrusions on their liberty, does that imply that the citizens will also have the right to use those weapons against federal employees in the event the citizens feel that their liberty is being infringed? So if a federal officer detains you and you are quite sure that the federal officer has no reasonable grounds for doing so, are you entitled by the Second Amendment to shoot the officer?

The adage, "If guns are outlawed, only outlaws will have guns" will either not be mentioned at all, or will be mentioned in jest.
 
A reference will be made to the Court's own security. In order to get into the Supreme Court building, citizens must prove they are unarmed, and must submit to metal detection. (This is now virtually standard at courthouses around the US.) What this means is that the Court has decided that having an armed citizenry is NOT desirable (at least on the Court's home turf), and that some sort of firearms regulation must certainly be constitutionally permissible.
At which point it can be pointed out that the members of the SC are protected 24/7 by armed guards, an option not available to the general public.

BTW, the Appellate Court decision this case is an appeal of can be found here:
SHELLY PARKER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND
ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA,
APPELLEES
 
I really hope the SCOTUS doesn't punt on this one. This has been simmering for too long and really needs to be clarified.
 
There's a 50-50 chance that it will not be clarified, but only muddled further. We're talking about the Supremes here.
 
Thanks to WildCat for the link to the lower court's decision.

Additional links of interest: The Federalist Papers. The "hot" papers seem to be Nos. 29, 45 and 46.
 
As I understand it the two essential points at issue are the intent of the Second Amendment, and whether the Second Amendment applies to Washington DC.

The first point was addressed by the lower court, which concluded that the amendment did guarantee the right individually (to each citizen) and not collectively (to each State Militia). They based their decision, in part, on the position of the amendment, amidst a list of other restrictions on government action, which guaranteed the rights of individuals. If the 2nd can be interpreted to mean a collective, rather than an individual right, then why not the 1st?

The Supremes may avoid addressing that issue by considering only the second question; "Does the Second Amendment apply to Washington DC?". DC is arguing that since it is a Federal District, rather than a state that the 2nd doesn't have any force. This has precedent in other situations. In a Court House or on a military base your rights are limited, not just the right to bear arms, but also freedom of assembly, freedom of speech and so on. Keep talking when the judge is done listening and you can find yourself in lock-up.

If the decision is made favorably on DC's argument it will raise the question of what rights the citizens of DC do have.

It should be interesting.

Robert Klaus
 
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Little-known fact: the concept of bearing arms appears in the Declaration of Independence. One of the grievances against the crown was:
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
 
I agree with Pope130 and believe that the ONLY issue addressed by the SCOTUS will be the idea of DC as a Federal District and therefore whether or not the 2nd amendment applies. The SCOTUS has too many conservatives to allow general discussion regarding the 2nd amendment. Especially considering the fact that Roberts loves consensus and the last thing he wants to see is a bunch of dissenting opinions regarding the very issues that Brown brings up in his/her predictions.
 
For the hell of it, here are a few predictions about the oral argument:

A reference will be made to the Court's own security. In order to get into the Supreme Court building, citizens must prove they are unarmed, and must submit to metal detection. (This is now virtually standard at courthouses around the US.) What this means is that the Court has decided that having an armed citizenry is NOT desirable (at least on the Court's home turf), and that some sort of firearms regulation must certainly be constitutionally permissible.

The "intent of the Framers" will be mentioned quite a bit. What will also be mentioned (and I'm betting it will be mentioned by Justice Stevens or Justice Ginsburg) is that the firearms familiar to the Framers of the Bill of Rights are nothing like the firearms available today.

The notion of dueling will be mentioned.

A justice might ask whether, if the purpose of the Second Amendment is for citizens to possess weapons to protect themselves from governmental intrusions on their liberty, does that imply that the citizens will also have the right to use those weapons against federal employees in the event the citizens feel that their liberty is being infringed? So if a federal officer detains you and you are quite sure that the federal officer has no reasonable grounds for doing so, are you entitled by the Second Amendment to shoot the officer?

The adage, "If guns are outlawed, only outlaws will have guns" will either not be mentioned at all, or will be mentioned in jest.
Well, let's be honest - the people who run the government don't, generally, support the principles espoused by the framer - that any people should have the right and the means to throw off their government should they find it oppressive. That really is the central issue from the libertarian perspective.

I find talk about the right to self defense and so on off the mark in the same way I find talk about "medical marijuanna" off the mark in as much as they give credence to the idea that gun owners and marijuanna users need to justify their right to gun and self ownership sufficiently to law makers in order be given the privilege of keeping their rights. I might add that in much same way that the "drug war" represents a war on the disadvantaged classes by those in power, gun control laws target those most at risk from violence. Those people in violent inner city neighborhoods who are most at risk of being assaulted are specifically prevented from effectively and legally protecting themselves by gun bans. And as been mentioned before, gun control laws, like drug control laws, have their roots in oppression and racism.
 
Little-known fact: the concept of bearing arms appears in the Declaration of Independence. One of the grievances against the crown was:

Your quote. Well, except this isn't about carrying a rifle around the house. This is about pressing your sailors. That is, civilian sailors were taken off
American civilian ships and adding to the crews of British warships.

So it's really about a purportedly illegal military draft, not about whether or not it's OK for non-military types to carry guns. Different kettle of fish.
 
A justice might ask whether, if the purpose of the Second Amendment is for citizens to possess weapons to protect themselves from governmental intrusions on their liberty,
All of the writings of the Founding Fathers make it quite clear that they intended the general populace to be able to possess and be proficient with any type of small arms. At the time, that included swords as well as firearms, particularly since the British empire often banned them for occupied peoples.

Small arms were any arm that a militiaman or soldier could carry for long periods, along with the necessary ammo, and use without assistance. It would not have included crew-served weapons such as modern machine guns, just like it didn't included cannon then. It would, however, include everything from handguns, to small-caliber automatic "assault weapons", to high-powered hunting rifles. Anything that can be carried easily for long periods, and which does not kill indiscriminately (like grenades and bombs).

The intent was to provide for all self defense. Against criminals, against invaders, and yes, ultimately, against oppressive governments. There was no provision made for a professional police force, just as there was none made for a professional military. Citizens were expected to defend themselves against criminals. Only organized piracy was considered sufficient cause to involve government power; and even then, was typically handled by mobilizing citizen militias and sea-powers (the latter typically through letters of marque).

Clearly modern society requires some sort of police force, simply because the nature of crime has gone far beyond what an agrarian or mecantilistic culture could have produced. There must be a police force capable of adequately responding to large-scale organized crime. There is some debate about the necessity of a professional military vs. a strictly reservist-based force; but the nature of modern military technology effectively requires at least a small-scale professional force. However, the bulk of responsibility for self-defense and national defense rests in the citizenry.
does that imply that the citizens will also have the right to use those weapons against federal employees in the event the citizens feel that their liberty is being infringed? So if a federal officer detains you and you are quite sure that the federal officer has no reasonable grounds for doing so, are you entitled by the Second Amendment to shoot the officer?
This is one of those situations that the gun-banning crowd builds some of their most popular strawmen out of; taking things way out context and exaggerating it far beyond it's original intent.

Yes, strictly speaking, it is intended to allow in extremis self defense against federal agents; when there is no other option for redress available. The US is not, nor has it been, anywhere near extremis; and is not likely to be anytimes soon, despite the lunatic-fringe fear-mongering on both sides. Only when the government is truly tyrannical, when the Constitution is being abolished, and it no longer respects, let alone protects, human rights and liberties; is taking up arms against the government permissable.

At the current time, the federal officer who detains irresponsibly you faces disciplinary action, and government can be made to address such issues and provide recompense. There have been abuses of government power, but they have been the exception, not the norm, and have been rapidly brought to light. We are nowhere near the stage where secret abuses of government power are the norm. People are not being "disappeared" in the middle of the night, they are not having their property stolen without recompense as a matter of course, they are not being jailed or otherwise silenced merely for opposing the government.

The condition must be concrete and visible; not just extremist paranoia.
 
Let me return to one of my most popular themes: read the materials yourself.

In particular, read the briefs. One has to be careful about what one wishes were true and what actually is supported by the historical record. Both sides (and many of the Friend of the Court briefs) make extensive use of the historical record, and cite sources.

Read about Shay's Rebellion. Learn some of the reasons why the District of Columbia was created in the first place. Read earlier proposals of the Second Amendment, and also other provisions relating to the bearing of arms.

I want to address one point, namely that the Second Amendment supports a right to insurrection. The chances of the Supreme Court smiling upon such an argument are virtually zero, and it unlikely that the argument will be advanced during oral argument (at least in that form). Among other considerations, at the time the Second Amendment was adopted, the Framers were worried--with reason--about insurrection. The Framers did not consider insurrection to be a desirable thing, so it would be rather hard to argue that they intended to create a constitutional amendment for the purpose of making insurrection more likely.
 
Your quote. Well, except this isn't about carrying a rifle around the house. This is about pressing your sailors. That is, civilian sailors were taken off
American civilian ships and adding to the crews of British warships.

So it's really about a purportedly illegal military draft, not about whether or not it's OK for non-military types to carry guns. Different kettle of fish.
True. One side mentioned the Declaration to support the argument that "bear arms" is a military term. In the Declaration, the term is used in a military sense.

One of the other arguments made to the Court is that you don't "bear arms" against a rabbit, or even against an intruder. You only "bear arms" in a military context, not in a hunting context or in a personal self-defense context. Although the other side disagrees with this argument (and cites a few instances in which "bear arms" is used possibly in a non-military context), the argument is also made that this case involves the right to "keep arms," not the right to "bear arms."
 

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