DC Circut Court Strikes Down DC Gun BAN--Violation of 2nd

[Tither]

Link From the Constitution Society

There is considerable confusion about the legal theory underlying the "right to keep and bear arms". This is a brief outline for a clarification of the discussion of this issue.

(1) The Second Amendment to the U.S. Constitution does not establish the right to keep and bear arms. None of the provisions of the Constitution establish any "natural" rights. They recognize such rights, but the repeal of such provisions would not end such rights. Such rights were considered by many of the Framers as obvious or "self-evident", but they were immersed in the prevailing republican thought of the day, as expressed in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which discussed "natural rights" in some detail. Others argued that at least some of the rights needed to be made explicit in the Bill of Rights to avoid having future generations with less understanding of republican theory weaken in their defense of those rights. That has turned out to have been a good idea

(2) The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution.

U.S. Supreme Court
U S v. CRUIKSHANK, 92 U.S. 542 (1875) 92 U.S. 542

6. The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.

This principle and wording was reaffirmed in Presser v. Illinois.

[BB62]

I have finished reading the court's decision, and although I am thrilled with the conclusion, the rationale on two points greatly concerns me.

Those portions are: "the militia" and the what "reasonable restrictions" are when applied to the right which the court recognizes. By far, these are the weakest elements of the ruling.

Portion #1 - Whenever the militia is mentioned it is in military terms, and the insistence that ones rights to arms outside of a connection to "the militia" seems tortured and tenuous. In contrast, the parts of the ruling referencing "the people" and "a free State" are abundantly clear and solidly historically supported. I say "tortured and tenuous" because I don't think that this portion of the ruling has anywhere near the dissuasive power of the others.

For instance, "We quite agree that the militia was a collective body designed to act in concert".

Bottom line, I don't feel that one predisposed to a "militia = organized military body" way of thinking, or one on the fence will reach a similar conclusion about either the separate nature of that portion of the 2nd Amendment, nor the applicability to all citizens. IMHO, this is by far the weakest part of the supporting analysis. Maybe I'm too harsh, but it this "true believer" isn't swayed, how can one expect others not so inclined to be so?

Let me be clear - it's not that I don't find a citizenry with a choice to be armed (and is the court saying that the citizenry has no choice but to be so??) a necessary thing, but just that this ruling fails us in this area.


Portion #2 - The court's delineation of "Reasonable restrictions" on the concluded pre-existing right. For instance, it is presumably reasonable (my emphasis) "to prohibit the carrying of weapons... to a church, polling place, or public assembly...", and the mention made of registration of all things! "The registration of firearms gives the government information as to how many people would be armed for militia service if called up." I just don't see how one can accept the ruling as a whole, but disclaim elements such as this.


Please show me the error of my thinking.


BB62

[Tither]

Bottom line, I don't feel that one predisposed to a "militia = organized military body" way of thinking, or one on the fence will reach a similar conclusion about either the separate nature of that portion of the 2nd Amendment, nor the applicability to all citizens. IMHO, this is by far the weakest part of the supporting analysis. Maybe I'm too harsh, but it this "true believer" isn't swayed, how can one expect others not so inclined to be so?

I think you are saying that you are disappointed about the fact that the majority opinion does not make the Individual Right case clearer. Is that correct? If I understand what you are saying correctly, and please correct me if I am wrong, it appears that the American People are not so fooled by the awkward wording in the 2nd Amendment as one might think. This poll was taken in 2003. Before the Democratic Party got religion so to speak.

68% of Americans believe the 2nd Individual Right.
Link Does the Second Amendment Protect the Right to Bear Arms?

According to a 2003 Gallup/NCC poll, most Americans believe that the Second Amendment protects individual firearm ownership. Points in their favor:

The Gallup/NCC poll also found that of the 68% of respondents who believed that the Second Amendment protects the right to bear arms, 82% still believe that the government can regulate firearm ownership to at least some extent. Only 12% believe that the Second Amendment prevents the government from restricting ownership of firearms.
Arguments Against

The same Gallup/NCC poll cited above also found that 28% of respondents believe that the Second Amendment was created to protect civilian militias, and does not guarantee the right to bear arms.

But, lets also face another fact. The Gun Controllers will not ever acknowledge an Individual Right even if our Founding Fathers came back from the grave and gave personal testimony.

[BB62]

Bottom line, I don't feel that one predisposed to a "militia = organized military body" way of thinking, or one on the fence will reach a similar conclusion about either the separate nature of that portion of the 2nd Amendment, nor the applicability to all citizens. IMHO, this is by far the weakest part of the supporting analysis. Maybe I'm too harsh, but it this "true believer" isn't swayed, how can one expect others not so inclined to be so?

I think you are saying that you are disappointed about the fact that the majority opinion does not make the Individual Right case clearer. Is that correct?...

Yes, that is one part. I was specific in cited what I feel is the weakest part of the ruling - the part describing what the militia is. To me, they have not made a strong enough case (re: what the militia is, and why the militia language is not controlling) to persuade those not predisposed to conclude "RKBA is an individual right, and not controlled by militia membership (and how the concept applies today) or not.

In my mind, the general public's view of things makes for nice news, but little else, as far as being applicable to the supporting analysis provided in the ruling.


BB62

[Tither]

In my mind, the general public's view of things makes for nice news, but little else, as far as being applicable to the supporting analysis provided in the ruling.

Personally I don’t think the general public really cares weather or not it or is not an Individual Right. That is more important to us Pro and Anti gun people, and maybe Congress. They know what they think, and I linked that. But there have been several reports showing the historical data and testimony from Constitutional law professors that the only people seeming to pay attention to it is our judges. .

Here is one such reports and that also seem to make no difference. 97th Congress 2d Session COMMITTEE PRINT THE RIGHT TO KEEP AND BEAR ARMS


The passage below can be found here. Scroll up one sentence.

That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia".[65] This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).(p.12)

Conclusion

> The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates
that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

--------
There has been testimony from our Nation’s leading historians and Constitutional law professors before Congress that has not seem to make any difference except to the Court. The use and Abuse of the Constitution

Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, Sept. 23, 1998.

The Text of the Amendment Refers to an Individual Right


The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. 1 These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person.

There has been a 4th Amendment case heard by the SC who parrots Eugene Volokh’s testimony. Link U.S. Supreme Court UNITED STATES v. VERDUGO-URQUIDEZ,

The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble")

While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

There is several passages directly from the Federalist Papers and here is one. FEDERALIST No. 28

HAMILTON If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that
original right of self-defense
i which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.
In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense.
The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo.

Plus all of the words of Tribe and Dershowitz

Papers written on the subject.

Plus a whole host of quotes from our Founding Fathers. Found here.
All of which can be verified by College sources.

I’m really not sure what else can be given as proof.

What do that Anti’s have as proof? A misreading of Miller and Henigan Bogus and some anti-gun professor from OSU.

[BB62]

Tither,

Thanks for the links - they're great. My wish is that the DC court would have made more use of such background material in their discussion of the militia.

Not directed at you, but this whole matter is going to come down to what is "the militia" is, and if accepted that it is "the people" (which makes no sense, btw) what "reasonable restrictions" are.

I'm sorry, but after such decisions as Kelo, I'm not hopeful.


BB62

[Tither]

Thanks for the links - they're great. My wish is that the DC court would have made more use of such background material in their discussion of the militia.

I read Glenn Harlan Reynolds blog on the case and he says that they basically used the Standard Model theory he explains here. A CRITICAL GUIDE TO THE SECOND AMENDMENT and he says that we are in good shape if this goes to the SC. Since he in another law professor I have to take his word for it. After all that Tribe, Dershowitz, Volokh, and others have invested in this subject I am sure they will be either quoted or maybe even make an appearance since they already bothered to testify before Congress. So to my mind, the Individual Right thing is a slam dunk since the SC already used Volokh’s words from his appearance before Congress in U.S V VERDUGO-URQUIDEZ,.

Not directed at you, but this whole matter is going to come down to what is "the militia" is, and if accepted that it is "the people" (which makes no sense, btw)

That question has already been answered by Federal law that defined a militia for us.
Link Who are the Militia today

United States Code, Title 10 Chapter 13.

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are – Organized and unorganized

(1) the organized militia, which consists of the National Guard
and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

what "reasonable restrictions" are.

That could get a bit sticky.

I'm sorry, but after such decisions as Kelo, I'm not hopeful.

I hear you about Kelo.

[Tither]

but this whole matter is going to come down to what is "the militia" is, and if accepted that it is "the people" (which makes no sense, btw)

I doubt that the militia question is as sticky as one (and apparently you do) might think it will get.

A CRITICAL GUIDE TO THE SECOND AMENDMENT

In recounting how the 2nd Amendment was drafted Hardy recreates this scene of Madison. His first step was to obtain a pamphlet which conveniently listed all state proposals. The problem became one of editing; out of hundreds of proposals. Madison's decision to include a right to arms in his federal bill of rights is hardly surprising. Such a right had been demanded in virtually every call for a bill of rights; indeed, it had received twice the number of demands accorded freedom of speech. Language praising the militia had received much less support, essentially having been appended to the right to arms clause in Virginia and the two following conventions. But an adaptation of the Virginia/New York/North Carolina wording combining the two held unusual promise. One of Madison's major objectives was to "bring in" North Carolina.[240] He hoped to convince it to ratify the Constitution by offering an acceptable bill of rights. North Carolina could hardly object to a nearly verbatim acceptance of its demand. .

And so the awkward wording of the 2nd was born along with a new nation.

Found in our National Archives Alexander Hamilton wrote

The Sacred Rights of Mankind are not to be rummaged for among old parchment, or musty records. They are written with a sun beam in whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power.

A reaffirmation of this principle in found from our very own government at the U.S. State department

In these memorable words of the American Declaration of Independence, Thomas Jefferson set forth a fundamental principle upon which democratic government is founded. Governments in a democracy do not grant the fundamental freedoms enumerated by Jefferson; governments are created to protect those freedoms that every individual possesses by virtue of his or her existence.

In their formulation by the Enlightenment philosophers of the 17th and 18th centuries, inalienable rights are God-given natural rights. These rights are not destroyed when civil society is created, and neither society nor government can remove or "alienate" them.

All of the above is the philosophy of our Framers, and part of the body of work known as the Standard Model of the 2nd Amendment.

[Tither]

The S.C. will also be told from historians that:
The American Revolution started when British soldiers came to Lexington and Concord to disarm our Founding Fathers. Our Founders then finish a long and impossible war with the most powerful army on earth in order to overthrow an oppressive government. Why, because they would rather fight than live under Tyranny, and many, many of their fellow countrymen laid down their lives in order to secure this precious freedom we hold so dear. So it does not even pass the smell test that our Founders would then be willing to give up their arms of a State Official said to. I believe they would show him the business end of the rifle.

Next, our Framers did their very best to write a really great Constitution, but We the People were absolutely unwilling to sign it. They fear trading one oppressor with another oppressive government of their own making. Our Framers asked We the People, what do you need that will allow you to ratify the new Constitution? We the People say we need iron clad, and unmovable guarantees written directly into the Constitution, otherwise take a hike Bozo!

Some framers felt that it would be dangerous to include some immunities and leave out others, as was stated by Alexander Hamilton in Federalist 84

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power."

So after they put in some of the Absolute Iron Clad Guarantees that also inserted the 9th and 10th Amendments. 9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Rights Retained by the People
Annotations
Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.

10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These are our Founding principles and once known by the Supreme Court they MUST abide by them. For they have no other choice.

[Tither]

THE BILL OF RIGHTS

Preamble

The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;
Amendment II

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 Bill of Rights defined by its self! “that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;”

Declaratory To declare or a declaration. Restrictive or Restriction.

The declaration that the preamble said would be there: A well regulated militia, being necessary to the security of a free state,

The restriction: , the right of the people to keep and bear arms, shall not be infringed.

[Tither]

Anyone interested in what some of our national pendants think will happen because of Parker can read it here.
Symposium on Parker

Cam Edwards, Dave Kopel, John R. Lott Jr., Randy Barnett, John C. Eastman, Alan Gura, and Clark Neily all give an opinion.

Note the NRA is planning to introduce a law in Congress to allow for the rearming of DC residents. This law could give the Supreme Court a reason not to hear the case.

[pessemist]

"While today's decision is a dream come true for America's gun lobby and gunmakers, it may mark the beginning of a long, national nightmare from which we will never recover as a nation."

This has got to win the award for best Hyperbole ever to see print.


Pesse (I've told them a billion times not to exaggerate!) Mist

[SMMAssociates]

Pessemist:

With respect to the guy who wrote that nonsense, we need to consider:

When all about you are losing their heads, you may wish to consider that you haven't got the word yet....

'Cause he sure hasn't....

Regards

[squirreld]

ok well I did not read this entire thread,
but I just wanted to say that I just called the 2 judges that ruled for us and left them an "atta boy" msg with their aid or voicemail.

Hon. Thomas Beall Griffith
Firm: United States Court of Appeals, District of Columbia Circuit

Address: E. Barrett Prettyman U.S. Courthouse
333 Constitution Ave., NW
Washington, DC 20001-2866

Phone: (202) 216-7170
Fax: (202) 273-0988

Hon. Laurence H. Silberman
Firm: United States Court of Appeals, District of Columbia Circuit

Address: E. Barrett Prettyman U.S. Courthouse
333 Constitution Ave., NW
Washington, DC 20001-2866

Phone: (202) 216-7353
Fax: (202) 273-0988

[ballistic]

In the event that you still haven't heard or read enough about the D.C. Circuit Court ruling, try www.gunlawnews.org and scroll down to the 03/14/07 entry "D.C. Gun Ban Overruled." That'll keep you quiet for a while.