Law School Discussion

Specific Groups => Black Law Students => Topic started by: Burning Sands, Esq. on March 25, 2008, 10:59:53 AM

Title: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on March 25, 2008, 10:59:53 AM
The District of Columbia v. Heller went to oral argument before the U.S. Supreme Court last week.  DC has a strict ban on all hand guns.  Gun owners are arguing that this restriction is in violation of the 2nd Amendment's protection of the individual right to own a gun.  DC is arguing that the 2nd Amendment does not give an absolute individual right to the people to bear arms but instead it gives a right to bear arms that should be taken in the context of the state's ability to raise a militia comprised of the people. 

The 2nd Amendment reads:

"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."



So who is right?
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: $Bill on March 25, 2008, 11:05:11 AM
"A well regulated Militia, as being necessary to the security of a free State, and the right of the people to keep and bear Arms, shall not be infringed."

Fixed ;-).  Its almost like the text was written to be misleading and encourage debate.  As far as my opinion, I find it doubtful that the members of the various state delegations wanted to strip the pistols from their pseudo-aristocracy and leave them in the hands of state regulated militias (as the militias in the Revolutionary war were not state regulated; this fact was alluded to in the transcript of the DC attorney pleading his case last...Tuesday?)
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: jack24 on March 25, 2008, 11:10:10 AM
I also don't think that the government had a surplus of weapons at that time that could be distributed to militias when needed.  If the state needed to call in a militia, it would depend on individual gun ownership to do so.

Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: $Bill on March 25, 2008, 11:14:41 AM
I believe Justice Scalia answered that:

JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: $Bill on March 25, 2008, 11:16:07 AM
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

Transcript BTW
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on March 25, 2008, 11:25:55 AM
So do you guys think the two clauses in the 2nd Amendment are indepenedent of each other then? 

The first recognizing a need for a militia and the second recognizing that the people have the right to own guns?
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: jack24 on March 25, 2008, 11:29:54 AM
So do you guys think the two clauses in the 2nd Amendment are indepenedent of each other then? 

The first recognizing a need for a militia and the second recognizing that the people have the right to own guns?

I honestly don't know.  The founders could have been more clear.
I just believe that the first clause relies on the second clause.  If individuals don't have the right to bear arms then a militia wouldn't have the right to bear arms.  A militia is regulated by the government, not armed by the government.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: $Bill on March 25, 2008, 11:32:57 AM
So do you guys think the two clauses in the 2nd Amendment are indepenedent of each other then? 

The first recognizing a need for a militia and the second recognizing that the people have the right to own guns?

I think the two are the same.  Barring peasants from owning weapons was one of the means the samurai class asserted control over early modern japan, not allowing serfs steel body armor ensured the vitality of the feudal system.  Gunpowder was a great equalizer of men, but to remove it would have a similar consequence.  An armed populace is the last bastion against tyranny.  I suspect the reason it was written as such was partly patriotic/artistic...the people are the militia and the militia are the people.  Im certain the founding fathers, who had just thrown off the [not really] oppressive yoke of the British state that they were citizens of, would have no problem with their ancestors rising against an equally or much more so tyrannical domestic government, and it was written in a way to suggest that the people, not the state are the ones who can decide who bears arms.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on June 26, 2008, 08:50:57 AM
Hot off the Press:

Court rules in favor of Second Amendment gun right

By MARK SHERMAN – 19 minutes ago

WASHINGTON (AP) — The Supreme Court says Americans have a right to own guns for self-defense and hunting, the justices' first major pronouncement on gun rights in U.S. history.

The court's 5-4 ruling strikes down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision goes further than even the Bush administration wanted, but probably leaves most firearms laws intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "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."

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, said the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home."

In dissent, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

He said such evidence "is nowhere to be found."





http://ap.google.com/article/ALeqM5jZOi0QxIZk7wY8br0MHhsEz-wL-wD91HQDEG0
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 26, 2008, 10:19:35 AM
THE NATIONAL CENTER FOR PUBLIC POLICY RESEARCH
PRESS RELEASE
For Release: June 26, 2008
District of Columbia v. Heller Supreme Court Second Amendment Decision Hailed by Black Activists

Washington, D.C. - Today's U.S. Supreme Court ruling guaranteeing the Constitution's individual right to own firearms and overturning the ban on most gun ownership in the nation's capital in the first major Second Amendment case in almost 70 years is being hailed by black activists of the Project 21 leadership network.

Project 21 Fellow Deneen Borelli says the decision supporting an individual right to use firearms is a loud and clear declaration that the government cannot pick and choose what constitutional protections are honored and enforced.

"This is a great day for law-abiding citizens of the nation's capital who have unjustly been denied their full right to protect themselves and families for over 30 years," said Borelli.  "The Second Amendment guarantees the individual right of citizens to arm themselves for self-defense and not become easy prey.  Perhaps the government should find a better way to keep illegal guns away from criminals and not law-abiding citizens."

The case of District of Columbia v. Heller is an appeal of the decision of the U.S. Court of Appeals for the DC Circuit in Parker v. District of Columbia.  In Parker v. District of Columbia, the DC Circuit ruled the District of Columbia's Firearms Control Regulations Act of 1975, which bars handgun ownership by most D.C. residents, is unconstitutional. 

The specific question being answered in District of Columbia v. Heller today was, as phrased by the Court: "Whether... provisions [in the District of Columbia code] 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."

The District of Columbia, defending the constitutionality of the firearm ban before the Court in oral arguments March 18, argued the Second Amendment's right to "bear arms" refers not to an individual right to use firearms, but rather to a "right to participate in the common defense" and a restriction of "the authority of the federal government to interfere with the arming" of state militias.  The District of Columbia argued to the Court that "the Second Amendment... is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license."

Opponents of the ban, however, said the Founders considered self-defense a right and one they intended the Second Amendment to protect, telling the Court "the framers knew exactly how to condition a right on militia service... and they didn't do it with respect to the Second Amendment."

"There are countless instances in which individuals are on their own when it comes to protecting themselves and their property.  A majority of the Justices recognized this and upheld the Second Amendment's specific protection of an individual right to self-defense.  Now that D.C.'s citizens have had this constitutional right restored, criminals will have good reason to think twice before trying to plunder another's property," added Project 21's Borelli.

In 2007, in a newspaper column published in Philadelphia, Chicago, Pittsburgh and elsewhere, Borelli addressed some of the public policy aspects of the case:

Besides violating the Second Amendment, D.C.'s gun ban is a violation of the fundamental rationale of law.  In The Law, noted political theorist Frederic Bastiat wrote: 'It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work.  All the measures of the law should protect property and punish plunder.'  D.C. promotes the opposite, effectively protecting the plunderer and punishing the property owner.

Borelli also pointed out:

Research shows that law-abiding citizens using firearms for protection can save lives and deter crimes.  In 'Armed: New Perspectives on Gun Control,' co-authors Gary Kleck and Don Kates note that 'as many as 2.5 million victims use guns to defend against crime each year' and 'handguns are actually used by victims to repel crime far more often than they are by criminals in committing crimes - as much as three times more.'

Borelli believes that in addition to it being unconstitutional, it is immoral to deny law-abiding citizens the right to legally possess a firearm, especially within crime-infested neighborhoods.

Borelli's column is available at www.nationalcenter.org/P21NVBorelliGuns90507.html.

Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992.  For more information, contact David Almasi at (202) 543-4110 x11 or project21@nationalcenter.org, or visit Project 21's website at www.project21.org/P21Index.html.
http://www.nationalcenter.org/P21PR-District_of_Columbia_v._Heller_062408.html










 
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: $Bill on June 26, 2008, 11:19:49 AM
Sounds good to me.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: pikey on June 26, 2008, 11:32:30 AM
Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992. 


Really?   ???  Who knew?   :D

ETA:
On September 20, 2005, The American Prospect reported about "a brief, unscripted encounter on cable television that revealed how modern conservatism seeks to manufacture the appearance of broad public support for the narrowest elements of its agenda...Viewers of C-SPAN's Washington Journal were expecting to see an interview of a black conservative. Mychal Massie, a retired businessman affiliated with a right-wing African American organization known as Project 21, was scheduled to appear at 9:30 a.m. But Massie never arrived at the C-SPAN studio on Capitol Hill because his car got a flat tire. Someone else from Project 21 had to rush over to take his place in front of the camera. Nobody was available on such short notice except the group's executive director. This sudden change clearly stunned Robb Harlston, the C-SPAN anchor hosting Washington Journal that morning, who also happens to be black. Staring at the man who had walked into the studio and introduced himself as Project 21's executive director, Harlston couldn't help blurting the obvious on live television. 'Um … Project 21 … a program for conservative African Americans … you're not African American.' Harlston was quite right: David Almasi, the executive director and sole employee of a group purporting to speak for African Americans, was undeniably a white man."

On October 20, 2005, Media Matters for America criticized Project 21, calling it "a creation of the conservative think tank National Center for Public Policy Research (NCPPR)." They noted that Project 21's director is also "NCPPR's executive director, David Almasi, [who] oversees Project 21's daily operations."

During the debate over the nomination of John Roberts to the U.S. Supreme Court, People for the American Way said: "Project 21, the NCPPR's effort to create a 'new leadership for Black America,' seems little more than African American spokespeople with extremist views that are at odds with what the majority of African Americans care about and believe."

Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: dissident on June 26, 2008, 11:56:32 AM
I ask, sir, what is the militia? It is the whole people except for a few public officials.
George Mason

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.
Thomas Jefferson


Surely context matters?

In dissent, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

Did not the Bill of Rights come about specifically to "limit the tools" of the federal government? 
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on June 26, 2008, 12:04:52 PM


Did not the Bill of Rights come about specifically to "limit the tools" of the federal government? 


It did indeed.  I find myself agreeing with Scalia on this one (can't believe I just said that in public). Not sure what Stevens was trying to get at here.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: A. on June 26, 2008, 12:17:04 PM
OK, I just finished reading the opinions.  While I think Scalia has the better textual argument over Stevens, he pulled that blanket allowance of handguns out of his ass.  Breyer definitely has the better argument there, and he took Scalia to task on it:

Nor is it at all clear to me how the majority decides
which loaded “arms” a homeowner may keep. The majority
says that that Amendment protects those weapons
“typically possessed by law-abiding citizens for lawful
purposes.” Ante, at 53. This definition conveniently excludes
machineguns, but permits handguns, which the
majority describes as “the most popular weapon chosen by
Americans for self-defense in the home.” Ante, at 57; see
also ante, at 54–55. But what sense does this approach
make? According to the majority’s reasoning, if Congress
and the States lift restrictions on the possession and use of
machineguns, and people buy machineguns to protect
their homes, the Court will have to reverse course and find
that the Second Amendment does, in fact, protect the
individual self-defense-related right to possess a machinegun.
On the majority’s reasoning, if tomorrow someone
invents a particularly useful, highly dangerous selfdefense
weapon, Congress and the States had better ban it
immediately, for once it becomes popular Congress will no
longer possess the constitutional authority to do so. In
essence, the majority determines what regulations are
permissible by looking to see what existing regulations
permit. There is no basis for believing that the Framers
intended such circular reasoning.

I am similarly puzzled by the majority’s list, in Part III
of its opinion, of provisions that in its view would survive
Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”; (2) “prohibitions
on the possession of firearms by felons”; (3) “prohibitions
on the possession of firearms by . . . the mentally ill”; (4)
“laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings”; and (5)
government “conditions and qualifications” attached “to
the commercial sale of arms.” Ante, at 54. Why these? Is
it that similar restrictions existed in the late 18th century?
The majority fails to cite any colonial analogues.
And even were it possible to find analogous colonial laws
in respect to all these restrictions, why should these colonial
laws count, while the Boston loaded-gun restriction
(along with the other laws I have identified) apparently
does not count? See supra, at 5–6, 38–39.

----

I also like Bryer's interests-balancing approach...Scalia gave no guidance as to how to decide future cases.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on June 26, 2008, 12:43:49 PM
Interesting. I haven't had a chance to read them yet.

Does Scalia address the issue of handguns vs. semi-automatic weapons at all in his opinion?
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: A. on June 26, 2008, 12:49:11 PM
Not that I recall...just that handguns are the "most popular."  But I'd have to go back and look.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 26, 2008, 02:29:36 PM
Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992. 


Really?   ???  Who knew?   :D
During the debate over the nomination of John Roberts to the U.S. Supreme Court, People for the American Way said: "Project 21, the NCPPR's effort to create a 'new leadership for Black America,' seems little more than African American spokespeople with extremist views that are at odds with what the majority of African Americans care about and believe."

Do you believe that the Heller Decision is out of step with the views of most black Americans?



Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: pikey on June 26, 2008, 02:43:51 PM
Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992. 


Really?   ???  Who knew?   :D
During the debate over the nomination of John Roberts to the U.S. Supreme Court, People for the American Way said: "Project 21, the NCPPR's effort to create a 'new leadership for Black America,' seems little more than African American spokespeople with extremist views that are at odds with what the majority of African Americans care about and believe."

Do you believe that the Heller Decision is out of step with the views of most black Americans?





I don't presume to speak for most Black Americans and neither should they.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 26, 2008, 02:54:53 PM

I don't presume to speak for most Black Americans and neither should they.

Most 'organizations' seem to suffer from that affliction. ;)


Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 27, 2008, 05:58:31 AM

I also like Bryer's interests-balancing approach...Scalia gave no guidance as to how to decide future cases.
THE WALL STREET JOURNAL
Silver Bullet
  June 27, 2008; Page A12
The 2008 Supreme Court term ended with a bang yesterday as the Justices issued their most important ruling ever in upholding an individual right to bear arms. The dismaying surprise is that the Second Amendment came within a single vote of becoming a dead Constitutional letter.

That's the larger meaning of yesterday's landmark 5-4 ruling in D.C. v. Heller, the first gun control case to come before the Court in 70 years. Richard Heller brought his case after the Washington, D.C. government refused to grant him a permit to keep a handgun in his home. The District has some of the most restrictive handgun laws in the country – essentially a total ban. The D.C. Circuit Court of Appeals, in a 2-1 decision by Judge Laurence Silberman, overturned the ban in an opinion that set up yesterday's ruling by taking a panoramic view of gun rights and American legal history.

In writing for the majority, Justice Antonin Scalia follows the Silberman Constitutional roadmap in finding that the "right of the people to keep and bear arms" is an individual right. The alternative view – argued by the District of Columbia – is that the Second Amendment is merely a collective right for individuals who belong to a government militia.

Justice Scalia shreds the collective interpretation as a matter of both common law and Constitutional history. He writes that the Founders, as well as nearly all Constitutional scholars over the decades, believed in the individual right. Many Supreme Court opinions invoke the Founders, but this one is refreshing in its resort to first American principles and its affirmation of a basic liberty. It's not too much to say that Heller is every bit as important to the Second Amendment as Near v. Minnesota (prior restraint) or N.Y. Times v. Sullivan (libel) are to the First Amendment.

Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the "right to privacy" – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an "interest-balancing test" to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer's "test," judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller's interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. "The very enumeration of the right takes [it] out of the hands of government" – even the hands of Olympian judges like Stephen Breyer. "Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew."
In that one sentence, Justice Scalia illuminates a main fault line on this current Supreme Court. The four liberals are far more willing to empower the government and judges to restrict individual liberty, save on matters of personal lifestyle (abortion, gay rights) or perhaps crime. The four conservatives are far more willing to defend individuals against government power – for example, in owning firearms, or private property (the 2005 Kelo case on eminent domain). Justice Anthony Kennedy swings both ways, and in Heller he sided with the people.

Heller leaves many questions unanswered. Contrary to the worries expressed by the Bush Administration in its embarrassing amicus brief, the ruling does not bar the government from regulating machine guns or other heavy weapons; or from limiting gun ownership by felons or the mentally ill. Any broad restriction on handguns or hunting rifles will be Constitutionally suspect, but legislatures will still have room to protect public safety.

Heller reveals the High Court at its best, upholding individual liberty as the Founders intended. Yet it is also precarious because the switch of a single Justice would have rendered the Second Amendment a nullity. With the next President likely to appoint as many as three Justices, the right to bear arms has been affirmed but still isn't safe.
http://online.wsj.com/article/SB121453315144709663.html?mod=djemEditorialPage
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: A. on June 27, 2008, 07:24:15 AM
I really couldn't care less what the msm have to say.  Get me Larry Tribe's opinion.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 27, 2008, 08:13:06 AM
I really couldn't care less what the msm have to say.  Get me Larry Tribe's opinion.

Even though you and the WSJ Board do not agree on the "interest-balancing test" approach as applied by Justice Breyer, your immediate identification and commentary on the approach were seen as a sign of high analytical ability. OUCH!
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: A. on June 27, 2008, 08:58:35 AM
Battle of the editorials:

June 27, 2008
Editorial
Lock and Load

Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law.

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

There already is a national glut of firearms: estimates run between 193 million and 250 million guns. The harm they do is constantly on heartbreaking display. Thirty-three dead last year in the shootings at Virginia Tech. Six killed this year at Northern Illinois University.

On Wednesday, as the court was getting ready to release its decision, a worker in a Kentucky plastics plant shot his supervisor, four co-workers and himself to death.

Cities and states have tried to stanch the killing with gun-control laws. The District of Columbia, which has one of the nation’s highest crime rates, banned the possession of nearly all handguns and required that other firearms be stored unloaded and disassembled, or bound with a trigger lock.

Overturning that law, the court’s 5-to-4 decision says that individuals have a constitutional right to keep guns in their homes for self-defense. But that’s a sharp reversal for the court: as early as 1939, it made clear that the Second Amendment only protects the right of people to carry guns for military use in a militia.

In his dissent, Justice John Paul Stevens was right when he said that the court has now established “a new constitutional right” that creates a “dramatic upheaval in the law.”

Even if there were a constitutional right to possess guns for nonmilitary uses, constitutional rights are not absolute. The First Amendment guarantees free speech, but that does not mean that laws cannot prohibit some spoken words, like threats to commit imminent violent acts. In his dissent, Justice Stephen Breyer argued soundly that whatever right gun owners have to unimpeded gun use is outweighed by the District of Columbia’s “compelling” public-safety interests.

In this month’s case recognizing the habeas corpus rights of the detainees at Guantánamo Bay, Cuba, Justice Scalia wrote in dissent that the decision “will almost certainly cause more Americans to be killed.” Those words apply with far more force to his opinion in this District of Columbia case.

The gun lobby will now trumpet this ruling as an end to virtually all gun restrictions, anywhere, at all times. That must not happen. And today’s decision still provides strong basis for saying it should not.

If the ruling is held to apply to the states, and not just to the District of Columbia — which is not certain — there will still be considerable dispute about what it means for other less-sweeping gun laws. Judges may end up deciding these on a law-by-law basis.

Supporters of gun control must fight in court to ensure that registration requirements and background-check rules, and laws against bulk sales of handguns — a major source of guns used in crimes — are all upheld.

The court left room for gun-control advocates to fight back. It made clear that there were gun restrictions that it was not calling into question, including bans on gun possession by felons and the mentally ill, or in “sensitive places” like schools and government buildings.

That last part is the final indignity of the decision: when the justices go to work at the Supreme Court, guns will still be banned. When most Americans show up at their own jobs, they will not have that protection.

This audaciously harmful decision, which hands the far right a victory it has sought for decades, is a powerful reminder of why voters need to have the Supreme Court firmly in mind when they vote for the president this fall.

Senator John McCain has said he would appoint justices like Chief Justice John Roberts and Justice Samuel Alito — both of whom supported this decision. If the court is allowed to tip even further to the far right, there will be even more damage done to the rights and the safety of Americans.

http://www.nytimes.com/2008/06/27/opinion/27fri1.html?_r=1&oref=slogin
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: pikey on June 27, 2008, 09:05:57 AM
Battle of the editorials:


It's no surprise which one I agree with.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: nike6075 on June 27, 2008, 09:22:10 AM
What battle?  I only see one editorial here.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 27, 2008, 09:28:45 AM
Battle of the editorials:


It's no surprise which one I agree with.


Some might say "Long Live The First Amendment!"
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on June 27, 2008, 10:04:11 AM
I have some issues with the Wall Street Journal piece.

It stated:

"Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the "right to privacy" – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government."

First of all, it has been WELL ESTABLISHED by both conservative and liberal Justices for many years that the bill of rights provide a "right to privacy."  This was established long before Ginsburg, Stevens, Souter or Breyer ever got to the bench.  This article makes it sound like this is some kind of made up con law doctrine which has no backing in the Constitution that only liberal justices pull out of their azz.  C'mon wall street.

And as an aside, despite the RECENT voting records of Stevens and Souter, I still don't concede them to be "liberals" but that's another debate for another time.

Getting back to the case at hand, I do agree with the proposition in the article regarding how shocking it is that the individual right to own a gun provided by the 2nd amendment almost got knocked out by one vote.  I am disappointed in the 4 who voted against that particular issue.  Does everything have to be a 5-4 split with these cats?  Sheesh.

Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should.  I haven't read Scalia's opinion but if he overlooked or dismissed that fact then I can understand the basis for dissenting with his majority opinion.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: jeffislouie on June 27, 2008, 10:21:52 AM
"Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law."

Yet another loudmouth liberal spouting off after getting confused and ignoring the confusing part....
More people die of Septicemia than guns.  Where's the outrage over Septicemia?  And by the way, libs - the bulk of those 30,000 deaths per year by handguns?  Suicide.  55% of all the deaths related to guns are suicide.  Just over 17000.  Meaning there are just 13,000 or so homicides or accidents related to firearms in this country per YEAR.  More people die from plain old battery's.  More people die from parkinsons disease.  The liberal media has you folks believing that guns kill more people than cancer, when the reality is that the numbers show that close to three times more people die in car accidents.  Should we ban cars?  Maybe just in cities where there are a lot of accidents?  There are 304 million people in this country, making gun deaths responsible for around .004 percent of the population.
And what happened to the violent crime rate in DC immediately after the ban was passed?  It went up.  People are still getting shot (more than before the ban) and it is sad to say that gun violence in DC has been on the increase.  The explanation is quite simple:  criminals don't follow laws.  As such, they own guns.  They use their guns to commit crimes because they know that the law abiding citizens don't have guns.  This is common sense.  Unfortunately, this is a quality that the liberals seem to avoid like the black plague.
GUN BANS DON'T WORK.  You can't possess a handgun in Chicago.  This is well known.  Yet every day, there are stories of kids getting killed in schools, near schools, by driveby's, and by accident.  Strange how in towns where gun bans exist, gun violence flourishes, that is unless you have a brain and realize that gun bans take guns out of the hands of peaceful, law abiding, safety trained citizens, not the criminals who are responsible for 90+% of the gun deaths.
The supreme court got this right (finally) and corrected a major issue.  The framers understood that the ownership of guns by the citizenry is important - so important that they made it the second amendment.  Why did they think it was important?  Because when the US was formed, our military was rather sparse.  The nation ran the risk of being overrun by the british and they understood that if they take the gun out of the citizens hand, they will be powerless to defend themselves and their country.
But there is more to it than that.  They understood that tyranny in government is a real danger and that the citizens should posess the power to stand up and fight against tyrants.  They understood that there was a real risk of the government being destroyed and replaced by a monarchy - especially without an armed constituency.  They also understood that a man has a right to lawful self defense.  When you make gun ownership illegal, peace-loving, law-abiding citizens are the one's who turn in their guns.  Criminals don't follow the law, so they hold on to them.  
Gun bans are unconstitutional and ridiculous on their face.  Like a gun ban in DC is going to influence Ray-Ray, the leader of the latin kings, to turn in his gat.  Please, Ray-Ray is PRAYING you dumb morons turn in your guns because then he knows that when he pulls his out, you won't be able to get off a shot on him.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: A. on June 27, 2008, 10:36:59 AM
I agree with Breyer with regard to your point:

These empirically based arguments may have proved
strong enough to convince many legislatures, as a matter
of legislative policy, not to adopt total handgun bans. But
the question here is whether they are strong enough to
destroy judicial confidence in the reasonableness of a
legislature that rejects them. And that they are not. For
one thing, they can lead us more deeply into the uncertainties
that surround any effort to reduce crime, but they
cannot prove either that handgun possession diminishes
crime or that handgun bans are ineffective. The statistics
do show a soaring District crime rate. And the District’s
crime rate went up after the District adopted its handgun
ban. But, as students of elementary logic know, after it
does not mean because of it. What would the District’s
crime rate have looked like without the ban? Higher?
Lower? The same? Experts differ; and we, as judges,
cannot say.

What about the fact that foreign nations with strict gun
laws have higher crime rates? Which is the cause and
which the effect? The proposition that strict gun laws
cause crime is harder to accept than the proposition that
strict gun laws in part grow out of the fact that a nation
already has a higher crime rate. And we are then left with
the same question as before: What would have happened
to crime without the gun laws—a question that respondent
and his amici do not convincingly answer.

Further, suppose that respondent’s amici are right when
they say that householders’ possession of loaded handguns
help to frighten away intruders. On that assumption, one
must still ask whether that benefit is worth the potential
death-related cost. And that is a question without a directly
provable answer.

Finally, consider the claim of respondent’s amici that
handgun bans cannot work; there are simply too many
illegal guns already in existence for a ban on legal guns to
make a difference. In a word, they claim that, given the
urban sea of pre-existing legal guns, criminals can readily
find arms regardless. Nonetheless, a legislature might
respond, we want to make an effort to try to dry up that
urban sea, drop by drop. And none of the studies can show
that effort is not worthwhile.

In a word, the studies to which respondent’s amici point
raise policy-related questions. They succeed in proving
that the District’s predictive judgments are controversial.
But they do not by themselves show that those judgments
are incorrect; nor do they demonstrate a consensus, academic
or otherwise, supporting that conclusion.

. . . .

There is no cause here to depart from the standard set
forth in Turner, for the District’s decision represents the
kind of empirically based judgment that legislatures, not
courts, are best suited to make.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 27, 2008, 11:45:31 AM

Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should. 
Quote

13th. Amendment   Right to Freedom  ???
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.  
Section 2. Congress shall have power to enforce this article by appropriate legislation.

Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 28, 2008, 04:54:00 PM
Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner
2008-06-04 07:00:00.0

WASHINGTON -
D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.  
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest, documents obtained by The Examiner show.

Lanier has been struggling to reverse D.C.’s spiraling crime rate but has been forced by public outcry to scale back several initiatives including her “All Hands on Deck” weekends and plans for warrantless, door-to-door searches for drugs and guns.

Under today’s proposal, the no-go zones will last up to 10 days, according to internal police documents. Front-line officers are already being signed up for training on running the blue curtains.

Peter Nickles, the city’s interim attorney general, said the quarantine would have “a narrow focus.”

“This is a very targeted program that has been used in other cities,” Nickles told The Examiner. “I’m not worried about the constitutionality of it.”

Others are. Kristopher Baumann, chairman of the D.C. police union and a former lawyer, called the checkpoint proposal “breathtaking.”

Shelley Broderick, president of the D.C.-area American Civil Liberties Union and the dean of the University of the District of Columbia’s law school, said the plan was “cockamamie.”

“I think they tried this in Russia and it failed,” she said. “It’s just our experience in this city that we always end up targeting poor people and people of color, and we treat the kids coming home from choir practice the same as we treat those kids who are selling drugs.”

The proposal has the provisional support of D.C. Councilman Harry “Tommy” Thomas, D-Ward 5, whose ward has become a war zone.

“They’re really going to crack down on what we believe to be a systemic problem with open-air drug markets,” Thomas told The Examiner.

Thomas said, though, that he worried about D.C. “moving towards a police state.”

Staff Writer Scott McCabe contributed to this report.
http://www.examiner.com/a-1423820~Lanier_plans_to_seal_off_rough__hoods_in_latest_effort_to_stop_wave_of_violence.html
 
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Talk Is Cheap on June 28, 2008, 05:07:32 PM
I also don't think that the government had a surplus of weapons at that time that could be distributed to militias when needed.  If the state needed to call in a militia, it would depend on individual gun ownership to do so.



Exactly. This is especially relevant given the time frame of the 18th century, if you want to try and look inside the framers' likely intentions and historical frame of reference. In the Revolutionary War that had just been fought, the country's independence was won in part by individually-armed citizens banding together. A militia relies on citizens to provide their own materiel, the most important being arms. You can't even have the "right to bear arms as part of a militia" without the right of the individuals who make up that militia's right to have their own weapons.

Just got back from the gun range myself...god bless the Second Amendment!
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 29, 2008, 09:25:54 PM
OK, I just finished reading the opinions.  While I think Scalia has the better textual argument over Stevens, he pulled that blanket allowance of handguns out of his ass.  Breyer definitely has the better argument there, and he took Scalia to task on it:
Pajamas Media;
Constitution Is Big Winner in D.C. Gun Case
June 26, 2008 - by Dave Kopel

Dave Kopel is research director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Trainers and Educators Association was cited four times in Thursday's opinions

The Supreme Court’s decision upholding the Second Amendment, and striking down the District of Columbia’s handgun ban and the ban on the use of any firearm for self-defense in the home, is solidly reasoned. Although the case leaves ample room for moderate gun control laws, the case casts doubt on the continuing validity of a variety of other gun prohibitions.

Justice Scalia, who has long shown an interest in firearms law and policy, wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito. A dissent written by Justice Stevens, and joined by Justices Souter, Ginsburg, and Breyer argued that the Second Amendment protects only an individual right of vanishingly small proportions — the right of a militiaman not to be disarmed by the federal government when he is on active militia duty. Justice Breyer wrote a separate dissent, joined by the other three dissenters, arguing that even if the Second Amendment protects all law-abiding citizens, the handgun ban should be upheld because it is reasonable.

Justice Scalia’s majority opinion was impressively well-informed by the scholarly debate over the Second Amendment that has been going for the past several decades. The textual analysis is meticulous, supplemented by careful attention to the many early American and English sources which elucidate the meaning of the various words.

Justice Stevens’ effort to read the Second Amendment as militia-only requires too many implausible inferences. For example, it is true that the phrases “keep arms” and “bear arms” were often used to refer to arms possession and use in military bodies such as the militia. But as Justice Scalia points out, there are also many examples of both phrases being used to refer to owning and carrying guns for other purposes, such as self-defense and hunting.

After analyzing the text of the Second Amendment, the majority opinion then detailed the interpretation of the Second Amendment in the first half of the 19th century, showing that every legal scholar (except for one minor exception), along with state and federal courts, recognized the Second Amendment as an individual right to have guns for various purposes, including self-defense.

As Scalia explained, after the Civil War, Congress passed the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1871, and then the Fourteenth Amendment — all with the explicit purpose of stopping southern governments from interfering with the Second Amendment rights of former slaves to own firearms to protect their homes and families. All the scholarly commentators of the late 19th century — including the legal giants Thomas Cooley and Oliver Wendell Holmes, Jr. — recognized the Second Amendment as an individual right.

Previous Supreme Court precedents have not — contrary to the vehement insistence of gun prohibition advocates — adopted a contrary interpretation, the majority said. United States v. Cruikshank (1876) described the right to arms as a preexisting natural right which was protected — but not created — by the Second Amendment.

The 1939 case of United States v. Miller, which held that a tax and registration requirement for sawed-off shotguns was not facially unconstitutional, is heavily relied on by the dissent. But the majority points out that Miller’s analysis of the history of the Second Amendment was cursory; Miller did not even submit a brief, and, as explicated in a law review article cited by Scalia, the Miller case appears to have been a collusive case involving a corrupted defense attorney doing the bidding of the prosecutor. Most importantly, the Miler opinion turned on whether the particular type of gun was protected by the Second Amendment, and did not declare that only militiamen had a right to arms.
http://pajamasmedia.com/blog/constitution-is-big-winner-in-dc-gun-case/
[ARTICLE CONTINUED IN POST BELOW]




Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 29, 2008, 09:29:29 PM
Constitution Is Big Winner in D.C. Gun Case

"...In response to Justice Stevens’ complaint that “hundreds of judges” have relied on the anti-individual rights interpretation of Miller, Scalia shot back: “their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.”

Then, adopting the interpretation urged by lead counsel Alan Gura is his brilliant brief for Heller, the majority opinion states: “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” This language — along with language a few pages later implying that an automatic M-16 rifle can be banned — indicates that the federal ban on civilian possession of machine guns manufactured after 1986 is still constitutional; but a renewal of the expired federal ban on so-called “assault weapons,” which outlawed about 200 cosmetically incorrect sport-utility guns either by name or by generic description, might be unconstitutional.

As for the constitutionality of other gun controls: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The word “commercial” in the last sentence could suggest that there might be constitutional problems on some laws which applied to non-commercial arms transfers. (However, there are few federal laws on non-commercial transfers, other than criminal penalties for transferring guns to prohibited persons.)

The majority opinion also affirmed the validity of bans on gun carrying in “sensitive” locations such as schools and government buildings. The language may imply that a total ban on gun carrying in ordinary public places is unconstitutional. But Heller does not attempt to answer the question of whether the Fourteenth Amendment makes the Second Amendment enforceable against state and local governments, and most carrying restrictions in public places are created by state and local governments. For now, Heller limits only the federal government — and entities such as the D.C. City Council, whose powers are granted by the federal government.

D.C. and its amici had argued that a handgun ban was alright because people could still have long guns for self-defense in the home. But the majority observed: “There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

The D.C. law also required that rifles and shotguns as well as grandfathered pre-1976 handguns be locked or disassembled at all times in the home. D.C. and its amici conceded that a ban on using guns for self-defense in the home would be unconstitutional, but argued that the locking law contained an implicit exception for self-defense. Justice Scalia pointed out that when the D.C. law had been challenged in an earlier case (McIntosh v. Washington, 1978), the D.C. Court of Appeals (D.C.’s equivalent to a state supreme court) had pointed to the requirement that all guns in the home be inoperable as one of the features of the law.

While the majority opinion argued at length with Justice Stevens’ dissent on the text and history of the Second Amendment, the engagement with the Breyer dissent was shorter. Breyer wanted courts to perform an ad hoc balancing test on the merits of gun bans or gun controls, and he thought that there was enough social science in support of the handgun ban — although he conceded that there was a good deal of social science on other side, too — that the handgun ban should be upheld.

Justice Scalia accurately noted that the Breyer approach would negate the very decision to enact the Second Amendment: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

Today the law-abiding citizens of D.C. regained their right to defend themselves in their home, and to use the most suitable defensive arm for that purpose. But the bigger winner today was the Constitution itself, vindicated by a majority decision which was faithful to the Constitution’s text, and to the spirit of liberty which animated the American people who drafted and ratified the Second Amendment."
http://pajamasmedia.com/blog/constitution-is-big-winner-in-dc-gun-case/2/
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on June 30, 2008, 09:13:02 AM

Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should. 
Quote

13th. Amendment   Right to Freedom  ???
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.  
Section 2. Congress shall have power to enforce this article by appropriate legislation.




???

Why are you citing the 13th Amendment on Slavery?



EDITED FOR QUOTE CLARITY
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on June 30, 2008, 01:04:51 PM

Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should. 
Quote

13th. Amendment   Right to Freedom  ???
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.  
Section 2. Congress shall have power to enforce this article by appropriate legislation.



???

Why are you citing the 13th Amendment on Slavery?


Quote from: Burning Sands, Esq. on June 27, 2008, 12:04:11 PM
"Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should."

If the Court accepts that "no fundamental right in the constitution is absolute", the fundamental constitutional right to freedom (13th Amendment) would not be exempt from 'regulation' "for the safety of the public."
Some would suggest that such regulation  may be the next wave in protecting the public from violent criminals who in the District of Columbia, for example, are primarily people of color.

See post above:
Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner2008-06-04 07:00:00.0

"D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest...."

Is this constitutional because it's temporary? (as of now) If no fundamental constitutional right is absolute, it could be determined by the Court to be 'constitutional' even if made permanent in a more virulent form, " for the safety of the public" at large, as protection from those initially absolutely free men who have demonstrated an inability to adjust to the public order requirements of the social contract.
Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: Burning Sands, Esq. on July 01, 2008, 10:40:23 AM


If the Court accepts that "no fundamental right in the constitution is absolute", the fundamental constitutional right to freedom (13th Amendment) would not be exempt from 'regulation' "for the safety of the public."
Some would suggest that such regulation  may be the next wave in protecting the public from violent criminals who in the District of Columbia, for example, are primarily people of color.

See post above:
Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner2008-06-04 07:00:00.0

"D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest...."

Is this constitutional because it's temporary? (as of now) If no fundamental constitutional right is absolute, it could be determined by the Court to be 'constitutional' even if made permanent in a more virulent form, " for the safety of the public" at large, as protection from those initially absolutely free men who have demonstrated an inability to adjust to the public order requirements of the social contract.


2 points:

(1) First, I understand what you are trying to get at, but the 13th Amendment does not lend support to your fundamental rights argument. In other words, our right to "not be a slave" as I guess it would be phrased is not a "fundamental right" in the Con Law context that we're talking about here.  Fundamental Rights are generally accepted to be those rights that citizens choose to exercise affirmatively, such as:

your right to travel between state lines
your right to child rearing
your right to own a gun
your right to speak freely
your right to marriage
your right to vote
your right to practice your own religion

When we speak of fundamental rights, these are what we're talking about.  These are rights that you and I, as citizens, can choose to exercise and that the government can regulate in some manner for limited reasons (typically public safety, general welfare, etc.).  None of them are absolute. The government can regulate them.  However, there is a balancing test that the government must meet before it can attempt to regulate one of these rights.  It is notable to observe that when the government infringes any of these rights, it is deemed a civil matter handled in the courts by way of civil litigation.  (ie. Individual Person v. Government Agency)

By contrast, the 13th amendment is not conferring a right that you can affirmatively choose to exercise.  It declares that slavery in the U.S. and all its territories is CRIMINAL.  Anybody, private actor or state agency, who engages in slavery can and will be placed under arrest, charged by a prosecutor, and taken to a criminal court where they will stand trial.  See 18 U.S.C. § 1581.   That is completely different from how infringements of fundamental rights are handled.  Nobody goes to jail for infringing your right to own a gun, your right to marriage, or even for infringing your right to speak freely.


(2) Secondly, even the 13th Amendment's ban on slavery (ie. "involuntary servitude") is not absolute.  As you can see in the text of the amendment itself, the words "except as a punishment for crime" give even this rule an exception to itself, therefore rendering it as not absolute.  If you are convicted of a crime, you effectively become a slave.  You are placed under  the "involuntary servitude" of the executive branch and held for X amount of time against your will.


So in short, the 13th Amendment doesn't apply to our fundamental rights debate.




Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: greenplaid on July 01, 2008, 03:51:20 PM


If the Court accepts that "no fundamental right in the constitution is absolute", the fundamental constitutional right to freedom (13th Amendment) would not be exempt from 'regulation' "for the safety of the public."
Some would suggest that such regulation  may be the next wave in protecting the public from violent criminals who in the District of Columbia, for example, are primarily people of color.

See post above:
Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner2008-06-04 07:00:00.0

"D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest...."

Is this constitutional because it's temporary? (as of now) If no fundamental constitutional right is absolute, it could be determined by the Court to be 'constitutional' even if made permanent in a more virulent form, " for the safety of the public" at large, as protection from those initially absolutely free men who have demonstrated an inability to adjust to the public order requirements of the social contract.


2 points:

(1) First, I understand what you are trying to get at, but the 13th Amendment does not lend support to your fundamental rights argument. In other words, our right to "not be a slave" as I guess it would be phrased is not a "fundamental right" in the Con Law context that we're talking about here.  Fundamental Rights are generally accepted to be those rights that citizens choose to exercise affirmatively, such as:

your right to travel between state lines
your right to child rearing
your right to own a gun
your right to speak freely
your right to marriage
your right to vote
your right to practice your own religion

When we speak of fundamental rights, these are what we're talking about.  These are rights that you and I, as citizens, can choose to exercise and that the government can regulate in some manner for limited reasons (typically public safety, general welfare, etc.).  None of them are absolute. The government can regulate them.  However, there is a balancing test that the government must meet before it can attempt to regulate one of these rights.  It is notable to observe that when the government infringes any of these rights, it is deemed a civil matter handled in the courts by way of civil litigation.  (ie. Individual Person v. Government Agency)

By contrast, the 13th amendment is not conferring a right that you can affirmatively choose to exercise.  It declares that slavery in the U.S. and all its territories is CRIMINAL.  Anybody, private actor or state agency, who engages in slavery can and will be placed under arrest, charged by a prosecutor, and taken to a criminal court where they will stand trial.  See 18 U.S.C. § 1581.   That is completely different from how infringements of fundamental rights are handled.  Nobody goes to jail for infringing your right to own a gun, your right to marriage, or even for infringing your right to speak freely.


(2) Secondly, even the 13th Amendment's ban on slavery (ie. "involuntary servitude") is not absolute.  As you can see in the text of the amendment itself, the words "except as a punishment for crime" give even this rule an exception to itself, therefore rendering it as not absolute.  If you are convicted of a crime, you effectively become a slave.  You are placed under  the "involuntary servitude" of the executive branch and held for X amount of time against your will.


So in short, the 13th Amendment doesn't apply to our fundamental rights debate.


1) Is not a fundamental right one that has origin in a country's constitution or that is necessarily implied from the terms of that constitution?

For example,
Preamble   The Constitution of the United States of America
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity  do ordain and establish this Constitution for the United States of America.

Have not the specific rights which fall under the definition of fundamental rights  varied over the history of the US?

For example,
During the country's first century, freedom of contract and other property rights were considered fundamental. As economic substantive due process declined, these rights lost their primacy. During the 20th century, personal liberties have taken on fundamental status. Over time, the Supreme Court has ruled that with few exceptions the provisions of the Bill of Rights meet the definition of fundamental liberties and are constitutionally immune from encroachment by state and local governments as well as federal. Most recently, privacy rights and protections against discrimination have increasingly been seen as fundamental."

Some argue that the concept of inalienable rights was written into the Bill of Rights as the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Professor Laurence Tribe: " The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."

Scalia  in Troxel v. Granville (2000):
"The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people."

[Initially the Bill of Rights was held in Barron v. Baltimore (1833) to be enforceable by the federal courts only against the federal government... which is a government of enumerated powers...not against the states. ]

The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution. (liberty?)

2) The Emancipation Proclamation was a war measure and did not permanently end slavery. Though several former slave states passed legislation prohibiting slavery, some slavery continued to exist until a sufficient number of states ratified the 13th Amendment.

Even though the constitution has recognized slavery, in the case of John Van Zandt, Salmon P. Chase argued before the Supreme Court "The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property."

Murder was determined to be a crime, for example, because of the belief that the right to life is fundamental.
Slavery was outlawed by the 13th Amendment and subsequently made a crime because of the belief that the right to liberty as promulgated in the Constitution's preamble is a fundamental right of all men...not just some men.

Does it necessarily follow that because enslavement is a crime, liberty is not a fundamental constitutional right? Is it not true that the violations of certain fundamental rights are not crimes simply because we have not made them crimes...suggesting that the right to life and the right to liberty are indeed fundamental?

The only suggestion of the earlier post is that selective restrictions on freedom only in certain neighborhoods and only among certain racial and ethnic groups...not as a result of conviction and/ or certified insanity, etc...could continue to escalate if Justices find it constitutional to 'regulate' fundamental constitutional rights for social engineering purposes (for example, keeping guns away from criminals)

Constitution Is Big Winner in D.C. Gun Case
June 26, 2008 - by Dave Kopel
"Justice Scalia accurately noted that the Breyer approach would negate the very decision to enact the Second Amendment: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

Title: Re: The "Right" to Bear Arms before the Court - So who is right?
Post by: dsetterl on July 01, 2008, 04:03:09 PM
(http://www.demopolislive.com/gallery/images/1/medium/1_the_right_to_bear_arms.jpg)