D.C. handgun ban ruling

[Sisyphus]

Anyone following this (I really haven't)? Is it as big of a landmark as the hype would suggest?

 

As far as its immediate impact in national politics, I did like this nugget from McCain:

 

Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right — sacred, just as the right to free speech and assembly."

 

For Obama's part, he has refrained from taking a position on it, about the ban only saying (in an April debate), "I confess I obviously haven't listened to the briefs and looked at all the evidence." He supports individual (rather than merely collective) rights to bear arms, but also "common sense local laws." He was quick to disavow an aide's claim that he thought the ban was Constitutional.

[john5746]

On this issue:

 

The 5 that voted against banning guns

 

Kennedy Anthony McLeod................ Reagan

 

John Glover Roberts, Jr. ................ G. W. Bush

 

Alito Samuel Anthony Alito ................ G. W. Bush

 

Antonin Gregory Scalia ................ Reagan

 

Thomas Clarence Thomas ................ G. H. W. Bush

 

 

Those who dissented

 

John Paul Stevens................ Ford

 

Souter David Hackett ................ G. H. W. Bush

 

Ginsburg Ruth Bader ................ Clinton

 

Breyer Stephen Gerald ................ Clinton

 

 

I have always disagreed that the 2nd amendment is clear about individual rights to bear arms. It justifies it with the need for a militia. To say this is a "sacred" right comparable to opening your mouth is retarded, IMO.

 

It is unclear enough to me to at least let states decide, but I think the legislature needs to revisit this and make it clear - is it an individual right to own a gun for self protection or is it a privilege much like driving a car. Gun ownership comes with much responsibility and has different applications in urban vs rural areas.

[bascule]

I have always disagreed that the 2nd amendment is clear about individual rights to bear arms.

 

I don't think the Second Amendment is clear about anything. It doesn't even read like a valid English sentence to me.

 

That said, I strongly support the right to keep and bear arms. I think it would work much better as a states rights issue, though. I don't think we need a national law as different laws are needed for different states.

[Pangloss]

What's really notable about the voting above is not who appointed them but what side of the "strict constructionism" vs "living constitution" debate they're on. Stevens, Souter, Ginsburg and Breyer are the "living constitution"-ers, and the others at least tend towards the direct, literal interpreation of the document.

 

It's no accident that Scalia wrote the majority opinion, even though Chief Justice Roberts was amongst the majority -- Scalia is the self-proclaimed champion of strict constructionism. I haven't seen this in any articles yet, but I've no doubt that this will be seen as Scalia's legacy, this decision right here. Americans have been waiting for a decision on this obscure constitutional wording since 1791.

 

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 well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms,[/b'] shall not be infringed.

 

Do the extra commas, which are included in the document I saw hanging under the dome in the National Archives two weeks ago (I failed to disguise it as a souvenir and escape through the gift shop, so it should still be there!), mean that the amendment only applied to state militias, and not to all people? It was one of the Great Unanswered Questions, and now we have an answer, for what it's worth.

 

That's not to say that they weren't giving their honest opinions and efforts, but I can't help but think that was a factor in this. I don't even think that's necessarily a bad thing (that they debate such fine legal points, or that they might consider it their legacy). Who am I to say he's wrong?

Edited June 26, 2008 by Pangloss

[D H]

We discussed this in this thread . The consensus: The second ammendment is very poorly worded. This poor wording lets some mistakenly read the ammendment as expressing the need for a militia. I said "mistakenly" because the Supreme Court just told Washingoton, DC, that such interpretation is mistaken.

 

I don't think the Second Amendment is clear about anything. It doesn't even read like a valid English sentence to me.

It's called the ablative absolute construction. The framers, who were well-versed in Latin, understood that construction. Latin is no longer considered relevant, so that sentence looks like Greek to us.

[Pangloss]

We discussed this in this thread . The consensus: The second ammendment is very poorly worded. This poor wording lets some mistakenly read the ammendment as expressing the need for a militia. I said "mistakenly" because the Supreme Court just told Washingoton, DC, that such interpretation is mistaken.

 

Exactly.

 

There's an interesting parallel here with the issue of separation of church and state. This "comma" issue was considered moot and irrelevant -- there was never any question about ownership as a basic right of citizenship -- until the rise of the gun control movement in the late 20th century. So you could say that the over-analysis of commas was partisan to that issue.

 

It's very similar to the way those who advocate total separation of church and state harp about the fact that the word "God" was only added to the Pledge of Allegiance in the 1950s.

 

Neither argument is relevant to the matter at hand. It's just something used to give the appearance that the other side's argument is weaker. I mention it here just to show how often and thinly these constitutional questions digress into modern, applied ideological concerns.

[doG]

I think the first thing I would ask of anyone commenting here is who has read the entirety of the ruling? There are a number of good points made by the court and the dissent. IMO fair commentary can only be made by those that have given both sides their attention.

 

I must agree with the court for the reason given at the close of its opinion where Scalia writes:

 

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but [b']what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.[/b]

 

While acknowledging that the amendment could be outdated, he makes it clear that legislation via judicial fiat is not the role of the court. I could not agree more. The law cannot be a fluid document that means one thing today and something else tomorrow. The rule of law depends on the fact that the law says what it means and that it means what it says. Whenever the law does become obsolete it is the job of legislature to change the law, not the duty of the court to change its interpretation. We have separate branches of government in the judicial and legislative branches for a reason and neither should perform the duties of the other.

 

The dissent makes clear its interpretation is grounded in reading the amendment in the context of the era in which it was written when Stevens writes:

 

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.

 

Then, having acknowledged the context of the era he advocates a modern day interpretation by writing:

 

At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated?

 

IMO, this is an affront to justice, a direct advocation of judicial fiat.

 

Aside from these points it is also my opinion that the court did rule correctly on the meaning of the 2nd Amendment as it exists in our Constitution today. It was one of 12 amendments proposed by Madison specifically for the purpose of amending the Constitution to grant rights to the people, not the states. In his opening to the House Madison stated:

 

There have been objections of various kinds made against the constitution. Some were levelled against its structure because the President was without a council; because the Senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State Governments. I know some respectable characters who opposed this Government on these grounds; but [b']I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary.[/b]

 

The people wanted rights that were not given them in the new constitution and one of the reasons was because they considered such rights a safeguard between themselves and the magistrate which represented the state. The Bill of Rights was not about states rights, it was about peoples rights. It was not about a state's right in regulating the militia but the people's right to be armed, at an advantage to the States.

 

It is also helpful in discerning the structure of the 2nd Amendment in reading his original proposal to Congress where he stated:

 

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

 

He made 3 statements. They are grammatically joined by semi-colons, not commas and as such are effectively 3 separate sentences in the context of grammar used in the era. He did advocate a right for all the people to keep and bear arms. He justified it with the claim that an armed militia was beneficial and he qualified that by advocating that military service should not be compelled. I could not see this as a requirement for participating in a militia in order to have the right to keep and bear arms or Madison would have said that and I think the current ruling reflects that.

 

The entirety of Madison's proposal to Congress and the debate in the House can be read in the Annals of Congress by going to the first session of the first Congress where he begins on page (image) 448.

 

I think one should also note that the majority did acknowledge the trouble caused in modern society by this literal interpretation where Scalia wrote:

 

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.

 

It seems the majority does see a need for addressing handgun violence but simply felt that the Constitution currently prohibits the method chosen.

[Pangloss]

I'm surprised you didn't mention Breyer's slippery slope argument in today's ruling, doG (interesting post, though). Anybody want to grab that ball and run with it?

 

Incidentally, I thought Obama's comment on today's gun control ruling was interesting when viewed in contrast with Bush's reaction to earlier decisions. Obama seemed to recognize the importance of this and the fact that it doesn't ultimately threaten gun control efforts.

 

But from the news reports today it does sound like we're entering a period of numerous legal challenges to all forms of gun control. That's how the single-issue special interest groups react to things like this, spending our money on stuff we don't want.

[D H]

OK. I have to find some other good posts so I can give some rep points to doG for his very nicely written post.

[doG]

I'm surprised you didn't mention Breyer's slippery slope argument in today's ruling, doG (interesting post, though).

 

Breyer's whole dissent is based on the premise that the rights granted in he Bill of Rights are not absolute but subject to regulation. IMO he misses the whole rule of law thing entirely by failing to realize that it is his job to interpret the law "as written". No where is it implied that any of the rights enumerated in the Bill of Rights are to be regulated by government. All he does is try to justify government regulation of the 2nd Amendment. I really think we should expect a better argument from someone on the highest court.

[Sisyphus]

The full text of both candidates responses:

 

“Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic' date=' the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense.

 

“Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right — sacred, just as the right to free speech and assembly.

 

“This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.”[/quote']

 

“I have always believed that the Second Amendment protects the right of individuals to bear arms' date=' but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

 

“As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today’s decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe."[/quote']

[ParanoiA]

Breyer's whole dissent is based on the premise that the rights granted in he Bill of Rights are not absolute but subject to regulation. IMO he misses the whole rule of law thing entirely by failing to realize that it is his job to interpret the law "as written". No where is it implied that any of the rights enumerated in the Bill of Rights are to be regulated by government. All he does is try to justify government regulation of the 2nd Amendment. I really think we should expect a better argument from someone on the highest court.

 

I'm very disturbed by this and totally agree we should expect better on the highest court. I guess I've been underestimating the danger of fluid interpretation, because I'm suddenly feeling a little nauseous.

 

By the way, that was a bang up post up there doG. I really like how you get into this stuff and your level of understanding, as well as your lecture. Once again, I walk away smarter after a doG post.

[Rev Blair]

Ah, guns. I understand how they work, and I've used them a fair bit. What I don't understand is the fetish some develop over them. Of course I don't really understand S&M or B&D either.

 

I am pretty sure that if you guys in the US got your act together and regulated the hell out of guns, we'd have a lot fewer of them up here and our gang members would have to go back to stabbing each other.

 

I'm all for that, because there aren't a lot of innocent bystanders to a knife fight.

 

Your second amendment neither says what it means or means what it says. It is anachronistic, misinterpreted...mostly on purpose, and pretty damned stupid.

 

I'm pretty sure this won't be a popular opinion, but if you aren't strong enough to recognize the failure of the second amendment to protect you from tyranny, at least grow a set and recognise that the NRA is at least as bad as any terrorist group and make the gun makers responsible for the end use of their product.

[Pangloss]

Breyer's whole dissent is based on the premise that the rights granted in he Bill of Rights are not absolute but subject to regulation. IMO he misses the whole rule of law thing entirely by failing to realize that it is his job to interpret the law "as written". No where is it implied that any of the rights enumerated in the Bill of Rights are to be regulated by government. All he does is try to justify government regulation of the 2nd Amendment. I really think we should expect a better argument from someone on the highest court.

 

Yes that's a good assessment. Not to detract from that, what I was getting at really was the use of the slippery slope in his argument, vis-a-vis talking about how this decision would lead to the loss of other gun-control legislation. It was a little painful to see a Supreme Court justice use such an obvious logical fallacy. The fact that Scalia touched on the same points suggests that the subject came up in debate between the justices, which is also a little disappointing. But of course they're only human.

[iNow]

It was a little painful to see a Supreme Court justice use such an obvious logical fallacy.

 

Precisely which fallacy are you suggesting was at play here?

[Pangloss]

The idea that just this ruling means that handgun laws may be overturned is a slippery slope fallacy. It's really in a gray area that always comes up in slippery slope arguments, so perhaps I'm exaggerating the point, it's just odd to see a justice even go into that area. He's correct in pointing out that all those other laws will now be challenged, but there's no particular reason to think they would be overturned. The one does not lead logically to the other, such that the one must be prevented for that reason.

[iNow]

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation' date=' where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. [/quote']

 

Oh. That's right. The role of the court is just to overturn elections.

 

 

 

 

 

 

It's really in a gray area that always comes up in slippery slope arguments, so perhaps I'm exaggerating the point.

 

Yes. I do suggest you've gone well beyond the scope of the objective here.

Edited June 27, 2008 by iNow
multiple post merged

[bascule]

The framers, who were well-versed in Latin, understood that construction.

 

Ego versio Latina sum. But that doesn't mean shit in terms of comprehending the construction of the second amendment.

 

Latin is no longer considered relevant, so that sentence looks like Greek to us.

 

Apparently, so does English... I don't get it, and I don't think that's my fault...

[D H]

I don't get it, and I don't think that's my fault...

As you said in the thread when the issue was first put to the Supreme Court, this amendment has all the signs of being written by committee.

 

I have somehow moved into a management role at work (something I have successfully avoided for several years by dint of technical expertise, but third time is not a charm). Anyhow, I have developed management disease and now think in bulleted form. Here is my bulleted interpretation:

• The framers successfully ended an armed uprising 10 years prior to writing the Constitution.
  
• The framers rebelled against an overly strong and overly centralized in that armed uprising.
  
• They experimented with an overly weak and overly decentralized government for 10 years.
  
• That experiment failed miserably.
  
• The new government the framers devised needed some strength and some centralization.
  
• The framers very reluctantly gave this government the ability to form standing armies.
  
• They fully realized that they might have just created the monster they defeated 10 years earlier.
  
• They created the Second Amendment to give the ability to hold an armed uprising against this beast.
  
• It would be rather difficult for a militia very well regulated by government to hold an armed uprising.
  
• The framers' ideal of a "well-regulated militia" are those guys running around in Michigan and Idaho, not the Maryland National Guard.

The Constitution was written at a different time and with a different mindset. If it needs to be changed because it is out-of-step with modern society, fine, change it. Hoping the Supreme Court will bypass the amendment process for us is not the way to do it. Scalia was right in saying it is not the Supreme Court's job to rewrite the Constitution. That is our job.

[doG]

Yes that's a good assessment. Not to detract from that, what I was getting at really was the use of the slippery slope in his argument, vis-a-vis talking about how this decision would lead to the loss of other gun-control legislation.

 

I see his slippery slope argument as just an effort to justify his attempt to legislate regulation of the right to keep and bear arms. One bad argument on top of another.

 

His points are valid that this ruling might be used to overturn other gun control legislation but it is not a valid "reason" for interpreting the 2nd Amendment in any way other than the way it was written.

 

I don't get it, and I don't think that's my fault...

 

You have to read it and interpret it in context with the era in which it was written. The U.S. was a new nation that had emerged from the Revolutionary War less than 10 years prior. The nation had only a small army that mainly fought small battles with indians. The nation needed an armed citizenry in the event that the nation needed to defend itself. It needed to depend on the availability of a militia:

 

militia

1590' date=' "system of military discipline," from L. militia "military service, warfare," from miles "soldier" (see military). Sense of "citizen army" (as distinct from professional soldiers) is first recorded 1696, perhaps from Fr. milice. [b']In U.S. history, "the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not" (1777).[/b]

 

Madison used the need of a militia as a justification to his peers in Congress that the nation needed the right of the people to keep and bear arms but also raised the right of the people to be conscientious objectors as well. His argument well balanced the needs of the new nation with those of it's people. He realized those people may have to rise up in defense of their nation from foreign invasion or invasion within and that the availability of the militia was in the people's interest.

 

That was then and this is now. It would be difficult to proffer an argument today that the best security for our nation is a well regulated militia. We now have 5 branches of military departments for our common defense. Scalia sent a valid message to Congress that the 2nd Amendment may be outmoded and that it is their job to address it, not the court's.

 

It would also be a strained interpretation to read the 2nd Amendment today as protecting a right of the people to keep and bear such arms as grenade launchers or briefcase nukes but the language of that era does not address the needs of today. It was clear that the dissenters saw this too and realized that handguns may need to be regulated like other arms. Their approach in using a fluid interpretation of the law is flawed but many of the points they raise are valid concerns. I think they should have joined Scalia in his message, it would have been a stronger message to Congress.

[tvp45]

I don't think the Second Amendment is clear about anything. It doesn't even read like a valid English sentence to me.

 

That said, I strongly support the right to keep and bear arms. I think it would work much better as a states rights issue, though. I don't think we need a national law as different laws are needed for different states.

 

The second amendment does appear strange when you read it in today's context. If you look at it in light of Virginia militia laws as they existed in 1789, it just about clears up however (that last comma is still weird and doesn't appear in all copies). Madison, Henry, Mason, and Jefferson were informed by the Virginia laws which made bearing arms a collective duty rather than an individual right. I believe Pennsylvania law was similar but I have no expertise in PA and am only supposing.

 

Free Blacks, untaxed Indians (no, I'm not making that class up!), and women were barred from bearing arms, but could own and use guns. Interestingly enough, it was common for the Virginia militia to perform their yearly drill with cornstalks since many of them owned no suitable firearm. That appears to have been a cultural difference,and is in sharp contrast to western Pennsylvania militia where most did own suitable arms.

 

I am a strong advocate of the right to own guns, but find protection (if I need it) in the 9th and 10th Amendments, which bar the government from messin' with my business when it has no reason to do so.

[ParanoiA]

Why hasn't there been an effort to amend the constitution concerning gun regulation? Or has there and I just missed it?

 

I guess I'm glad they're being prudent with amendments, but after all of this long drawn out warfare with grammer and punctuation, I'm just surprised there hasn't been the resolve to just rewrite the damn thing.

 

Maybe that would make a good thread: How should the 28th amendment be written to repeal the 2nd, and establish the modern principle of rights to bear arms?

 

I think it would be an interesting exercise for the board to create a mock amendment, written and ratified by the membership. I'll bet we couldn't agree on the first freaking sentence...

[iNow]

Free Blacks, untaxed Indians (no, I'm not making that class up!), and women were barred from bearing arms, but could own and use guns.

Can you (or anyone) elaborate on this? I'm not sure I understand the distinction being made.

 

They were barred from bearing arms, but could own and use guns? What's the difference between arms and guns? Or, is it something else subtle I'm not grasping?

[Sisyphus]

I think it would be an interesting exercise for the board to create a mock amendment' date=' written and ratified by the membership. I'll bet we couldn't agree on the first freaking sentence...[/quote']

 

Ok, here's a first draft:

 

Whereas bears are strong and noble creatures; and man's limbs are his inalienable property; the right of the people to bear arms shall not be infringed.

[ParanoiA]

Ok, here's a first draft:

 

Whereas bears are strong and noble creatures; and man's limbs are his inalienable property; the right of the people to bear arms shall not be infringed.

 

Why didn't I see this coming?

 

Can you (or anyone) elaborate on this? I'm not sure I understand the distinction being made.

 

They were barred from bearing arms, but could own and use guns? What's the difference between arms and guns? Or, is it something else subtle I'm not grasping?

 

Yeah, I'm not real sure either. Maybe he's using "bearing arms" in the context of assuming a soldier's role. So women couldn't participate as soldiers, but could use a gun to kill a rabbit, or an intruder. But that's just a guess.

 

Of course, women and guns are a dangerous combination. My wife is a hell of a shot.