Not a Bang, But a Whimper

Big news from the Supreme Court today. A 5-4 majority decided to strike down the D.C. gun control law as an unconstitutional violation of Dick Heller's right to bear arms under the 2nd Amendment.

I'm going through Justice Antonin Scalia's opinion now, and one thing that leaps out at me is the careful way he limits the scope of the court's decision. He carves out two very important limitations on the 2nd Amendment's firearms right -- exceptions so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in D.C.:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [cites omitted]

It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

So, if I understand this right, Scalia's got no beef with "felon in possession" statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. He's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades and other instruments of violence that are firearms but maybe just a tad bit dangerous for you or me to keep and bear. And he seems cool with background checks, registration and waiting periods.

There may be a national security point here, too, to the extent that many federal anti-terrorism statutes revolve around the use, possession or development of explosives, firearms and other dangerous materials. Scalia undoubtedly knows this and wants to preserve law enforcement's abilities to go after that stuff.

If I'm adding up the scorecard right, that means most federal, state and local gun control in America survives Heller. And so, gun rights advocates get to notch their buttstocks with an important symbolic victory. But ultimately, the part of Justice Scalia that respects law enforcement's needs may have won the day -- because gun control will remain alive and well in America in the wake of this decision.

By Phillip Carter |  June 26, 2008; 3:28 PM ET  | Category:  Law
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You can bet it would have turn out that way, anythime you have a thug defending thugs. Justice Antonin Scalia's

Posted by: Ed St. Andre | June 26, 2008 4:25 PM

You wrote: "But ultimately, the part of Justice Scalia that respects law enforcement's needs may have won the day -- because gun control will remain alive and well in America in the wake of this decision."

I think you've misunderstood the nature of originalist constitutional interpretation. It's not Scalia's "respect" for the needs of law enforcement that is driving this, it's the meaning of the word "arms" as it existed at the time of the Founding. Since people only had small arms that would be carried to the gathering of the militia at that time, those are the arms that are guaranteed to the people.

Posted by: Jonny | June 26, 2008 4:56 PM

I think this is a correct and long overdue decision. I have never understood how anybody could somehow single out the Second Amendment as being the only part of the Bill of Rights that protects only states' rights when the rest is all about individual rights. IMO, those favoring outright prohibition have dishonestly conflated the meaning of "militia" during our revolutionary era with today's formalized state national guard forces.

Yes, I am a liberal, and no, I am not a member of the NRA. What I am is an American who believes I have an absolute right to defend myself and my family from the predators amongst us.

I think we should also recognize that at the time the Constitution was written and ratified, the fear of government was equally as strong as the fear of common criminals.

Posted by: Publius | June 26, 2008 5:00 PM

Sorry, Publius, you're not a liberal -- unless you are referring to the classical definition of the word.

Very well said, by the way.

Posted by: info | June 26, 2008 5:07 PM

So the "dead enders" go from telling us what the Constitution really means to what the Court really means. They can talk trash, but they should not expect to do much with it.

Posted by: Gary E. Masters | June 26, 2008 5:23 PM

Quoting the author ...

"So, if I understand this right, Scalia's got no beef ... with states banning assault rifles, machine guns, rocket-propelled grenades and other instruments of violence that are firearms but maybe just a tad bit dangerous for you or me to keep and bear."

Absent any assurances that you are clairvoyant, let me disabuse you of this belief. You (and the majority of the back-peddling fundamental-rights infringers) seem to forget the obligation the People have to overthrow a Tyrant. The Second Amendment was, in part, intended to assure that the populace (the People) would never be 'out-gunned' by the Sovereign. The Founders recognized that the principal guarantor of freedom is the ability of the People to topple by violence (if all other means have failed) a despot that refuses to abide by the laws of the land. And principal among these laws is the Constitution and its Amendments.

Here's a simple way of telling if the infringements desired by some are constitutional, or not.

Replace the type of arm that you seek to prohibit, with a type of speech that you'd like to ban (like inflammatory speech from racist organizations like the American Nazi Party or the Nation of Islam).

Replace the type of arm you seek to regulate with a regulation on voting ... How'zabout that poll tax, or literacy test, prior to granting a voter's ID card.

I have no problem with any sheep wanting to rely on wolves preying on other members of the flock instead of providing for their own defense. Your personal choice is your call.

But your personal call does not my Second Amendment trump.

Posted by: JustAGuy | June 26, 2008 6:24 PM

"I have never understood how anybody could somehow single out the Second Amendment as being the only part of the Bill of Rights that protects only states' rights when the rest is all about individual rights."

Publius, how are the freedoms of press, assembly, and against establishment of a religion expressly individual rights? It seems they do have an individual aspect but cannot be seen as wholly individual in nature. If that were true, the government could simply ban everyone from reading my newspaper or meeting with me at my assembly and my individual rights would be upheld but would essentially be meaningless. What I mean is that there is a group dynamic to many other rights and that reading this one as applying to a group, in this instance the States, is not unreasonable.

Posted by: deacshades | June 26, 2008 6:35 PM

Quoting Jonny ...

" ... it's the meaning of the word "arms" as it existed at the time of the Founding. Since people only had small arms that would be carried to the gathering of the militia at that time, those are the arms that are guaranteed to the people."

Falser words were never uttered.

Does your freedom of speech end with the spoken word or the quill and parchment that existed way back when? Or does you fundamental right to freely express yourself also exist on the computer we've used to contribute to the blog?

Is one's freedom from unreasonable search and seizure limted to our persons and abodes, i.e., those artifacts that were extant when the Founders drafted our Nation's founding documents? Or are such protections extended to modern day constructs ... like telephone conversations, and computerized records?

Remember. Back 'in the day' implements of war (like cannonry, warships, etc.) were as likely to be privately owned as to be the property of a government.

Letters of marque were issued to privateers so that they could attack the countries enemies on the high seas using THEIR PRIVATELY OWNED warship, replete with PRIVATELY OWNED cannons and ammunition. (Truth be told, the problem posed to commercial shipping by Somalian and Indonesian pirates could be easily -- and inexpensively, with respect to the taxpayers' contribution -- solved by the issuance of a Letter of Marque to an American citizen with the appropriate means and materials.

Posted by: JustAGuy | June 26, 2008 6:37 PM

"Sorry, Publius, you're not a liberal -- unless you are referring to the classical definition of the word."

Well, info, what would you expect from someone using the screen name "Publius?"

"I have no problem with any sheep wanting to rely on wolves preying on other members of the flock instead of providing for their own defense. Your personal choice is your call.

"But your personal call does not my Second Amendment trump."

JustAGuy does a good job in summing up my thoughts. I've never understood the mindset that relies on the police to protect us in an era where we have actual court decisions that deny they have that responsibility. And I've always found it kind of interesting that many of the most prominent spokesmen for outlawing lethal means of self-protection have enough money to put themselves behind gates and guards. These are the sheep to whom JustAGuy refers, the ones with the resources to place sufficient obstacles in the way of the wolves and thereby deflect their attention to softer targets.

And, as a liberal in the classical sense, I've also never understood why so many Americans trust government.

Posted by: Publius | June 26, 2008 6:38 PM

Quoting JustAGuy...

"The Second Amendment was, in part, intended to assure that the populace (the People) would never be 'out-gunned' by the Sovereign."

So when do I get my F-22? Because my handgun is looking pretty ineffective for toppling the government, or even defending it in this day-and-age.

The question in this case, as in all other gun control cases, is not one of toppling the government or defending yourself against foreign invasion.

Posted by: deacshades | June 26, 2008 6:45 PM

Quoting Jonny ...

" ... it's the meaning of the word "arms" as it existed at the time of the Founding. Since people only had small arms that would be carried to the gathering of the militia at that time, those are the arms that are guaranteed to the people."

Quoting Jonny from where? It seems like a more reasonable interpretation of this quote would be for banning people from owning things like automatic assault rifles, rocket propelled grenades, or even my F-22. In other words, it was meant to say that things like you mention, cannons and warships, were out of the ordinary for individuals to own and so were not guaranteed. It does not mean to imply, like you suggest, that anything after the Founding Fathers generation was banned.

Posted by: deacshades | June 26, 2008 7:10 PM

"Publius, how are the freedoms of press, assembly, and against establishment of a religion expressly individual rights? It seems they do have an individual aspect but cannot be seen as wholly individual in nature."

Well, deacshades, I think you actually prove my point. Just as it would be unthinkable to believe that the NYT, WaPo or the random church have a right to express their opinion and to do their thing without fear of governmental sanction, it would be equally unthinkable to believe that individual citizens don't enjoy the same rights. Why would one believe anything different about Second Amendment rights?

Look, the Founders lived in an era where all free men had weapons, weapons that could be used in the service of the state--if those with the weapons agreed with the state--but that were also used to put food on the table and to defend against lawless people. Given their distrust of government, it's clear this right was also designed to allow the citizenry to defend against depredations on the part of the state. How anyone can look at American history and somehow conclude that Washington, Adams, Jefferson, Madison, et al, did not believe in an individual right to bear arms is beyond me.

"So when do I get my F-22? Because my handgun is looking pretty ineffective for toppling the government, or even defending it in this day-and-age.

"The question in this case, as in all other gun control cases, is not one of toppling the government or defending yourself against foreign invasion."

Well, actually, ask any cop or soldier how they'd feel going up against a whole bunch of armed citizens--not criminals, but serious Americans--and trying to "pacify" them. For that matter, ask members of the U.S. Army and Marine Corps in Iraq and Afghanistan how easy it is to "pacify" nations where most citizens have access to firearms.

Yes, we have a lot of problems because of firearms in the hands of non-law abiding citizens. Yes, it's a serious concern. But it's my sense we've had more than enough individual rights trampled in the "war on drugs," the "war on poverty, the "war on crime," and the "war on terror." A good government would have already won those wars, if they could be won; a bad government--which we have--would continue to use those "wars" as excuses to deny fundamental rights to Americans.

We are who we are. We are Americans. You don't like guns, move to a country where citizens don't have the same rights you have.

Posted by: Publius | June 26, 2008 7:29 PM

this site tends to agree with you, but sees the opinion as much muddier: www.straightrecord.com. it suggests the courts will be tearing their collective hairs out for years to come trying to figure out what is limited and what is not. score one for scalia and his tortured reasoning.

Posted by: rapswork | June 26, 2008 7:35 PM

Quoting deacshades ...

"So when do I get my F-22? Because my handgun is looking pretty ineffective for toppling the government, or even defending it in this day-and-age."

It's difficult to posit an answer to deacshade's question without knowing the context. I'll presume deacshade is NOT:

- a basement-of-the-science-building type of pimply-faced introvert who believes that mastery of level 87 of Microsoft Flight Simulator or equivalent computer game actually equates to skills as a fighter pilot; nor

- an addle-brained, discomfited, wanna-be gun-banner who seeks to deflect reason with an attempt at riposte. After all, what gun-banner would admit to owning a handgun?

I believe the Founders would answer the question, "whenever you desire, and can afford it," provided your previous actions or station haven't otherwise disqualified you. (In the Commonwealth of Virginia, the home of more than a fair share of Founders, simpletons and slaves, for example, were not accorded the fundamental rights of free men.)

The idea that someone would covet an arm they could not operate is utterly foreign to me. So I'm left with the belief that you, deacshades, are or were a fighter pilot with the requisite skills and knowledge to pilot an F-22. If your politics tend to the left, your question might be one of when your entitlement to an F-22 would be satisfied. Know, however, that the Founders believed we're entitled to pursue happiness. Not get it automatically.

Bottom line for me. If you had the wherewithal, and wanted to lawfully own and operate an F-22 -- including its basic load of armaments -- I'd be proud to call you a friend. If you could afford it, operate it, and securely maintain an F-22 what should I or the government fear? Should I fear that John Travolta is going to load up one of his passenger planes a la Terry Nichols to stage a Harrison Ford movie in real life?

Note that the price tag for your F-22 will be somewhere between $170 million and $340 million to purchase the plane. I'd count on spending another chunk of change before you get airborne ...

Too many Americans seem to soil themselves thinking about the possibility that law-adiding citizens might be armed, without regard to the FACT that criminals who do not abide by laws are already armed. And the criminals want to prey on society, taking by force from those who've worked -- and in many cases, worked damn hard -- for what they've got.

Also, I'd suggest that you not labor under the mistaken belief, that you would be eligible to obtain US Government cryptographic keying material (for commo or IFF). Same thing goes for Government navigational aids. But with all of the money an owner of an F22 would have, modifications for civil aviation should be trivial.

*******************

Quoting deacshades again ...

"The question in this case, as in all other gun control cases, is not one of toppling the government or defending yourself against foreign invasion."

That's right. The question is much simpler. Does the "gun control" or "regulations" or "licensing" unlawfully infringe on the fundamental right to keep and bear arms? Until the Supreme Court decides "strict scrutiny," all of the gun banners petty (like Fenty) and otherwise (like billionaire Bloomberg) will continue to infringe. With impunity.

If there's a Hell, I hope they burn in it for all eternity.

Posted by: JustAGuy | June 26, 2008 7:45 PM

OK: I'm not a lawyer and have not read the ruling, but Fenty and his people still appear to be laboring under some serious delusions. He and his attorney general both said to the press after the ruling that "automatic and semi-automatic" handguns will remain banned under this decision, and that they will be writing regs to require trigger locks on all permitted handguns (revolvers, I guess), even though the court is reported to have struck down DC's existing provisions that require trigger locks on shotguns and rifles.

Are they daft? Does the mayor not understand the difference between fully automatic and semi-automatic weapons? Between semi-automatics and revolvers? That revolvers are largely considered anachronisms by today's gun-buyers, i.e. that they are not generally what is sold today. Who is advising this nimrod? How could he push a case like this to the highest court in the land and walk away thinking they just let him ban semi-automatics? WAY out-of-touch.

Or have I got it wrong?!

Posted by: Andy | June 26, 2008 8:36 PM

>>>What I am is an American who believes I have an absolute right to defend myself and my family from the predators amongst us.

Well said

>>>Just as it would be unthinkable to believe that the NYT, WaPo or the random church have a right to express their opinion and to do their thing without fear of governmental sanction, it would be equally unthinkable to believe that individual citizens don't enjoy the same rights. Why would one believe anything different about Second Amendment rights?

Well said again.

I think Justice Scalia nails it all. The thorough discussion of the meanings of the words 'keep' and 'bear' (and the familiarity and self-training that implies) is written as if he knew the majority opinion would be used as 'the' reference document for all future second amendment cases.

Similarly the dissection of individual versus group rights also seems written with the original Heller vs DC case as a footnote completely overshadowed by an attempt to address the second amendment in depth for perhaps the first time in American history. He has done a masterful job. The explanations, research and conclusions in the opinion should put to rest all future hair splitting on the meaning of the second amendment. As the opinion and others have noted...the opinion does leave room for sensible regulation...but individual rights are not in question.

All Americans should breathe a sigh of relief today. I don't own a gun, but I'm happy this has been decided this way.

My only real concern is how four justices could have dissented. That's just wrong.

Posted by: Panhandle Willy | June 26, 2008 8:36 PM

>>>You don't like guns, move to a country where citizens don't have the same rights you have.

Wow! Stunning. Sounds almost like love it or leave it! Probably too much of a stretch...but wouldn't it be something if a decision like this brought liberals and conservatives back to the sanity of realizing that we're all on the same team and we just want what's best for America.

Posted by: Panhandle Willy | June 26, 2008 8:41 PM

I think I misinterpreted your point earlier, Publius. I took you to be saying that the Second Amendment was purely individual because you said, "...when the rest is all about individual rights." But if I'm reading you correctly now, you mean that there is both a group and an individual dynamic to the law. What I was trying to say is that taking this amendment to be solely group in nature was not outrageous because other amendments have group elements and so interpreting all or none on the basis of group verses individual was probably not justified.

At the same time, I don't agree with the individual aspect of your interpretation of the amendment. By this, I mean that I think States have the power to regulate guns in whatever way they see fit and most agrees with their constituencies. If that is banning them, then they ban them. I don't think there is a guaranteed individual right to own a gun. That is based on reading the amendment and hearing the different interpretations. Today's ruling, which at times read more like a lesson in high school grammar, underscores the difference in these two opinions but the reading of the amendment that the minority put forward is what I think.
In terms of the history aspect of the amendment which you mention, I agree that the Founding Father had somewhat of a distrust for government but it couldn't have been all-encompassing because they went and set one up. They set up a system of governance in which invariably at least two parties were pitted against each other thereby mitigating the government's ability to harass the populace. They also gave us other weapons that are generally more powerful foes to government excess such as press and due process, so I don't think they felt the need to guarantee us access to weapons. I would think that our current government's inability to pacify, as you say, Iraq and Afghanistan would be an argument in favor of gun control because we apparently wouldn't need them. Iraq and Afghanistan are tumultuous places not because of the guns that are there but because of the ability of the people to organize and put out their message. If there were no guns in Iraq, I'm sure there would still be violence of some kind but I don't think it would be any less pacified than it is. In other words, I don't think you need guns to resist the government and I don't think the idea that you do is anywhere in the Constitution.

Posted by: deacshades | June 26, 2008 8:45 PM

I look forward to the forthcoming removal of restrictions on carrying weapons into the courtrooms, because the judges are sure to be packin'! So they can take care of business themselves, if necessary.

Posted by: Ross Judson | June 26, 2008 9:06 PM

JustAGuy, thanks for letting me in on the price tag of the F-22. Unfortunately, it looks like I'm going to have to get a better paying job. Clearly, it was a bit of riposte, as you say. But I wasn't trying to "deflect reason" any more than you were with your clairvoyant remark earlier. I was pointing out that as technology increases it becomes more and more pointless for anyone, regardless of income, to try to out-gun the government.

Quoting JustAGuy:
"Too many Americans seem to soil themselves thinking about the possibility that law-adiding citizens might be armed, without regard to the FACT that criminals who do not abide by laws are already armed."

Many of these criminals that you keep pointing out were at one point law-abiding citizens and I don't think that some people breaking the law implies or justifies the allowance of a right to everyone as you put forward.

Posted by: deacshades | June 26, 2008 9:13 PM

Ah, but in DC's case we now have a legal conundrum. IF the "several states" have the rgiht to regulate but not outright ban the possession of fire arms, DC has a problem. You will recall that, according to the US COnstitution, DC is not a state nor can it become one without an amendment. That's the reasoning behind denying DC a real vote in the House. So, based on that alone, the rights reserved to both individuals and groups in the COnstitution don't necessarily apply to those residents of DC. WHich means Scalia's well reasoned (though in my view seriously flawed) decision applies to the states, but not actually DC.

(Insert a small amount of otngue in cheek here).

Posted by: Philip H. | June 26, 2008 9:19 PM

Quoting deacshades ...

And vowing to contribute no more to this blog in spite of the apparent lack of comprehension of the Constitution and its context ...

"In other words, I don't think you need guns to resist the government and I don't think the idea that you do is anywhere in the Constitution."

Here's a timeline in the hope that I didn't err in my earlier guess at your present/previous vocation ... even though yet another attempt at avoiding reason is evident.

July 4, 1776
--------------------
The Second Continental Congress, meeting in Philadelphia in the Pennsylvania State House (now Independence Hall), approved the Declaration of Independence, severing the colonies' ties to the British Crown.

September 17, 1787
----------------------------------
The members of the Constitutional Convention signed the United States Constitution in Philadelphia, Pennsylvania. (This date also marked the beginning of another illustrious Publius' career as an essayist)

December 15, 1791
--------------------------------
The new United States of America adopted the Bill of Rights, the first ten amendments to the U.S. Constitution, confirming the fundamental rights of its citizens on December 15, 1791.

Here's a good source of information about these documents, on which our Nation was conceived and built:

http://www.loc.gov/rr/program/bib/ourdocs/Constitution.html

**********************

I'll take the liberty of extracting some of the relevant text from the Declaration of Independence. While every word of these documents deserves reading, contemplation, comprehension ... dare I say reverence -- and therefore extracting certain words and phrases do all a dissservice -- I fear the deacshades of the world either feign ignorance or deliberately ignore/misguide in this discussion.

After all, the Fourth of July (aka Independence Day) is next week.

****** Extract of Declaration of Independence ******

IN CONGRESS, JULY 4, 1776

The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. -- Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

****** End of Extract of Declaration of Independence ******

America was founded in the violent overthrow of an oppressively despotic Sovereign. Do read the works of that old-time Publius if you believe the Constitutional guarantees do not in part result from the People's POTENTIAL future obligation to overthrow a despot should one appear.

God Bless America.

Posted by: JustAGuy | June 26, 2008 9:27 PM

Andy wrote:
>>"Who is advising [Fenty]? How could he push a case like this to the highest court in the land and walk away thinking they just let him ban semi-automatics? WAY out-of-touch."

Well put. If anything is clear, it's that semi-automatic pistols and long guns are most certainly in "common use" as that term was employed by the Court. While I don't have the statistics handy, I recall reading that modern handgun sales are disproportionately skewed towards semi autos, and have been for years. And something like 1/3 of current rifle sales are semi-autos, ranging from the little Ruger 10-22s that a generation of kids have learned to shoot with up to the AR class rifles used for the highest-level CMP and National Match marksmanship competitions for over two decades.

If Fenty and his henchmen are intent on trying to push and exceed the edge of the envelope in their forthcoming gun registration rules, they're merely condemning the citizens of the District to subsidizing years and years of ultimately futile litigation. Then again, the District's local government has never been known for its common sense...

Posted by: zippypinhead | June 26, 2008 9:28 PM

The court's decision can be construed as a victory in that it closes the door somewhat on further banning of possession of weapons by private citizens. Make no mistake, there are people, including lawmakers, who believe private citizens should not own firearms of any kind. Had the court not rendered this decision, the door would have been open to mass proposal of laws by cities, counties, etc. banning shotguns, rifles, etc. The court has, in effect, protected ALL of our rights under the constitution. If you lose your right to own firearms, the rest can be taken away as well.

Posted by: Michael | June 26, 2008 9:40 PM

Johnny,

Scalia appears to have anticipated your argument.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the founding.

One of the things that makes it easy to dismiss gun control people is the childish word games they insist on playing. I genuinely don't care what your definition of "is" is.

Posted by: jmt | June 26, 2008 10:00 PM

Jonny | June 26, 2008 4:56 PM :

Then Revolvers, repeating rifles, magazine fed weapons, metal cartridge weapons may all be banned because they are all invented after the Constitution and Bill of Rights were adopted. The Supreme Court has now totally muddled the waters, so that it is as easy to read the decision to permit EVERY person in the country as having the right to bear Arms. Every Person may determine that he needs to pack heat for self defense, and that is the gist of this ruling.

Every Cop on the beat, now, has the perfect right to pull his weapon immediately on beginning a stop of any kind for any reason, to protect himself and all innocent bystanders, demand that the person being stopped declare any weapons on his person, type and location. Said policeman can then temporarily disarm the citizen, perform whatever function the policeman was about to do, and then allow the citizen to rearm himself after accepting any citations, tickets, warnings etc, that the policeman inflicted on him.

There are lots of copshere in the midwest already paranoid enough (with excellent reason) to begin such SOP.

Apparently the only way to restore common sense is to amend the amendment.

Perhaps like this:

The provisions of the Second Amendment providing for private militias are hereby affirmed. The right of members of Well Regulated Militias shall have the right to keep and bear arms appropriate to their militia's function. The Federal Government shall make necessary provision to properly form and regulate Private Militias, and accept them in Federal service in time of War or National Emergency, and the several states make provision to properly govern them.

The Federal Government and the several states shall have the authority to regulate the ownership and use of deadly weapons, tools, and materials as the conditions causing said weapons, tools, and materials to be of noxious hazard dictate.

Posted by: ceflynline@msn.com | June 26, 2008 10:06 PM

"What I was trying to say is that taking this amendment to be solely group in nature was not outrageous because other amendments have group elements and so interpreting all or none on the basis of group verses individual was probably not justified."

Well, actually, deacshades, the problem with your interpretation here is that the Bill of Rights is actually all about individual rights. When groups come into the picture, it's still about individuals; after all, groups are comprised of individuals. Go on to the Fourth and Fifth Amendments. Any doubts about the thrust?

Nah, hate to say it, deacshades, but ISTM you're taking the classic latter-day gun control tack of cherry-picking the Constitution for what you like.

"At the same time, I don't agree with the individual aspect of your interpretation of the amendment. By this, I mean that I think States have the power to regulate guns in whatever way they see fit and most agrees with their constituencies. If that is banning them, then they ban them. I don't think there is a guaranteed individual right to own a gun."

Well, now it turns out you're wrong, aren't you? Just as I didn't like the decision in Bush v Gore, you don't like this one. The rule of law is kind of like sports. Sometimes you don't get the ref's call.

"So, based on that alone, the rights reserved to both individuals and groups in the Constitution don't necessarily apply to those residents of DC. Which means Scalia's well reasoned (though in my view seriously flawed) decision applies to the states, but not actually DC."

Well, actually, D.C. is subject to federal law, which means a Supreme Court decision is pretty much a slam dunk in the district. D.C. officials will gnash their teeth, whine, snivel and moan, while meanwhile trying to somehow circumvent this decision. But there is nothing they can do about it. Defiance of the Supreme Court is not in their toolkit. But they'll try, while wasting taxpayer money all the while. Yeah, Andy, the D.C. government has always been daft. It's what they do.

Thanks to JustAGuy for reminding us about the Declaration. IMO, all of you splitting hairs about each and every word in the Constitution and original intent are kind of missing something important if you don't know your Declaration, the place where you will find some serious "original intent." IMO, discussing the Founders' intentions without considering the Declaration is roughly akin to discussing English common law without considering what a bunch of English guys did in AD 1215.

Posted by: Anonymous | June 26, 2008 10:07 PM

DC's Ban was not reasonable. No one had a problem with Reasonable rules. If you push too hard then people push back. DC pushed too hard.

Posted by: Mike Van Austin | June 26, 2008 10:12 PM

This decision sure helps if you live in DC!

Posted by: Mast Herb Ator | June 26, 2008 11:23 PM

DC pushed hard on gun control back in the 1970s, when the laws struck down in Heller were passed.

The District government thought, then and later, that its ban on possession of the type of weapon most commonly used in crimes was a reasonable restriction in a high crime area, which the District was then and is now. It is true that the law was honored in the breach; people committing other crimes ignored it all the time, and so did otherwise law-abiding citizens. That proves it was a foolish law; no more than in Lawrence did it make it unconstitutional.

The Court majority in Heller did two things that a different majority also did several years ago in Lawrence, and has in fact done repeatedly in recent years. First, it chose deliberately to act as a national super-legislature. The Court decided the law before it was one it didn't like, so it changed the law, and made up an after-the-fact Constitutional rationale to support its decision. The fact that the law had been around for decades after having been passed didn't matter; the fact that the District has a legislative process fully capable of changing the law on its own didn't matter.

The Court also left Constitutional questions related to Heller open, ensuring that they will be litigated, which ensures in turn that the Court protects its modern role as a national super-legislature for the future. Maybe other duly enacted legislation regulating firearms will be upheld, maybe not. The Court will decide, depending on whether or not its majority likes the law in question, and it will decide narrowly enough to preserve its ability to strike down other laws in the same subject area that it happens to dislike.

The Court acted in Heller, as it has so often in recent years, first of all in the interest of the Court. Phil Carter may be right as to the likely fate of other gun-related legislation when it comes in its turn before the Court, and I suppose it's sweet of him to think so about a subject concerning which he has no say whatsoever. Just so long as he knows his place, and the rest of us know ours.

Posted by: Zathras | June 26, 2008 11:55 PM

Woot! I'm buying an Uzi!

Steve

Posted by: steve | June 27, 2008 9:31 AM

Well, I'm just a simple-minded guy. The simple statement that makes up Article II seems pretty straightforward to me. Still, the various court decisions infringing the right of the people to keep and bear arms over the years are consistent with Jefferson's stated belief that the Constitution was a framework upon which each generation would hang laws fitted to their unique and unforeseeable circumstances. Of course, I don't see how this squares with Justice Scalia's "strict originalist" approach, but then as far as I can see, he's always been more of a strict Procrustean - deciding in advance what the desirable outcome should be and then finding some way to adjust his interpretation to make that outcome inevitable. But of course, isn't that what lawyers do?

Posted by: JohnR | June 27, 2008 11:02 AM

The story that needs to be looked at by party lines is how many gun laws prevented criminals from commiting crimes? The answer is none. It may prevent some sales or an honest person from buying or collecting. However, the honest person who wants it for personal reasons are not the ones the laws are directed at. 36 states have concealed carry laws and each state has seen crime drop. Doctors kill far more people than guns. Police use their weapons far less than the civilian does for defence of life. Criminals don't heed signs or laws. The Supreme court may have opened a can of unpleasant worms created by the foolishness that you can legislate moral and proper behavior of people with alterior motives. Too many rights are being removed from people in the America. This one will stand until the next revolution.

Posted by: Doc832 | June 27, 2008 5:16 PM

The court rendered a 5-4 decision, but if you read the dissents, it was a 9-0 decision affirming the individual right to bear arms.

What this does is to take away the one aspect of the gun control argument that tended to make it digital, the confiscation of all firearms by the government. Since handgun ownership is now a civil right, the playing field changes. And it may well change in ways that were not intended.

For example, although you could not say this in an NRA meeting, a lot of gun owners are not totally opposed to regulation. Concealed carry laws are widely accepted among gun owners yet they have pretty significant restrictions if you want to get a CC license. In fact the very subtrefuges used by those who wanted to deny blacks the vote are present here including a poll tax ($150/year to own one), literacy tests (you have to pass a test and take a course to own one), limited and hard to get ID (police vetting), and a means test (see poll tax.) As a result, those who have CC licenses tend to be rich white males. Exactly the same group that the original gun laws, which were passed to make sure that ex-slaves could not be armed, protected.

But if you have a right to own a handgun, then the arguments of both sides will be diminished and this is bad for fund raising. The Second Amendment Association side of things can't use that scare tactic any more, and the Brady Bunch can't make the promise of a gun free nation. I think that as a result the group of donors to both sides will diminish considerably and such organizations will eventually go out of business or remain as a rump. Think CORE and SNCC or even the NAACP. (Or the White Citizens Council.)

There will be a long and tortuous fight to define the limits of this right but for most of us the decision has been made. I doubt that it will be rescinded since even if Obama is president. After all most of the older justices were on the -4 side of the issue and even they agreed that a right existed.

Posted by: mikeyes | July 3, 2008 2:56 PM

I am admitedly about as far left as you can get, a Democrat, and I am certainly NOT a member of the NRA. (The caveat being I was a member of the NRA for a brief period of time, until the first issue of the NRA magazine hit my doorstep, in which there were numerous disturbing ads for the sale of, in my mind, wholly inappropriate assualt and automatic weapons.) I like hand guns myself, and can even understand the possession of a rifle, say a Remington hunting rifle. But I am baffled as to the reasoning behind anyone's assertion that it is a person's RIGHT to own an AK-47, UZI, Barrett sniper rifle, RPG, etc. For what purpose? You honestly think Joe down the street can overthrow the government single handedly if he owns a plethora of military grade weapons?

Militias of old were designed for defense. Yes, I understand that. But I cannot wrap my mind around anyone honestly needing an assault weapon for home defense. Unless you know how to USE one CORRECTLY and have received the appropriate TRAINING, would the average Joe know how to load, fire and operate such a weapon safely? If it takes you 30 seconds to figure out how to use your BFG (big f****** gun) you would most likely be dead if an intruder were coming in your door so armed.

The point of the assault weapons ban is to get the guns OUT of the hands of law abiding citizens so that the CRIMINALS have less of a store from which to obtain said arms, such as stealing them from the gun cabinet in your basement. Once the supply dries up in our homes, so will the source of the guns to the bad guys.

My boyfriend is a former scout sniper in the USMC, and even he finds it difficult to understand the average person's need for an assault weapon. He has been out of the service for approx. 8 years, and even he, with his extensive background and training, admits he would be loathe to pick up a sniper rifle and try to use it accurately without a good period of time to get re-acquainted with the weapon.

Basically, I guess my point is, use some common sense people. This is not rocket science (sorry for that). The Constitution is a living document, and it must adapt to the world as it stands today.

As far as "overthrowing the government" being one of the inherent reasons individuals should be allowed to own such weapons, you have the right to "over throw the goverment" every four years, by electing a new one if you don't like the old one. Simple. Do you need a M-1 to punch your voter's ticket? If you would rather pick up a weapon to effect change than to vote for it, you have serious issues that expressly make the ban necessary to keep the gun out of your hands.

/gets off her soap box

Posted by: hiyaworld | July 3, 2008 5:29 PM

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