The "Right" to Bear Arms before the Court - So who is right?

[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?]

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

[greenplaid]

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. 

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.

[greenplaid]

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

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
 

[Talk Is Cheap]

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!

[greenplaid]

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]

[greenplaid]

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/

[Burning Sands, Esq.]

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. 

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

[greenplaid]

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. 

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.

[Burning Sands, Esq.]

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.

[greenplaid]

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 AmericaWe 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.”

[dsetterl]