Law School Discussion

Nine Years of Discussion
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Poll

Does the 2nd Amendment give us, the people, the right to bear arms or is that right attached to being a part of a militia?

The 2A gives the right to own guns to the people without question.
 25 (67.6%)
The 2A gives the people the right to own guns only if they belong to a militia.
 9 (24.3%)
Not sure.
 3 (8.1%)

Total Members Voted: 34

Author Topic: The "Right" to Bear Arms before the Court - So who is right?  (Read 7908 times)

Burning Sands, Esq.

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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?
"A lawyer's either a social engineer or a parasite on society. A social engineer is a highly skilled...lawyer who understands the Constitution of the U.S. and knows how to explore its uses in the solving of problems of local communities and in bettering [our] conditions."
Charles H. Houston

$Bill

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #1 on: March 25, 2008, 01:05:11 PM »
"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?)

jack24

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #2 on: March 25, 2008, 01:10:10 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.


$Bill

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #3 on: March 25, 2008, 01:14:41 PM »
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.


Burning Sands, Esq.

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #5 on: March 25, 2008, 01:25:55 PM »
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?
"A lawyer's either a social engineer or a parasite on society. A social engineer is a highly skilled...lawyer who understands the Constitution of the U.S. and knows how to explore its uses in the solving of problems of local communities and in bettering [our] conditions."
Charles H. Houston

jack24

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #6 on: March 25, 2008, 01:29:54 PM »
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.

$Bill

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #7 on: March 25, 2008, 01:32:57 PM »
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.

Burning Sands, Esq.

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #8 on: June 26, 2008, 10:50:57 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
"A lawyer's either a social engineer or a parasite on society. A social engineer is a highly skilled...lawyer who understands the Constitution of the U.S. and knows how to explore its uses in the solving of problems of local communities and in bettering [our] conditions."
Charles H. Houston

greenplaid

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #9 on: June 26, 2008, 12:19:35 PM »
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