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US supreme court rules on 2nd amendment case

unsurprisingly the conservative court gave its disappointing opinion today that the DC gun law violates the 2nd amendment.

quote:

WASHINGTON (CNN) -- The U.S. Supreme Court ruled Thursday that a sweeping ban on handguns in the nation's capital violated the Second Amendment right to bear arms. The justices voted 5-4 against the ban, with Justice Antonin Scalia writing the opinion for the majority. The case's lead plaintiff, Dick Heller, applauded the decision, saying, "I'm very happy that I am now able to defend myself and my household in my own home." Paul Helmke of the Brady Campaign to Prevent Gun Violence said his group had a mixed reaction to the decision. Helmke said the group disagrees with the court's interpretation of the Second Amendment but that the ruling "still allows common-sense gun control laws, restrictions to make us all safer." Watch a gun shop owner's reaction � "It's clear what the court did today is, they limited the extremes," Helmke told reporters after the ruling. The National Rifle Association said the high court had given it the ammunition to challenge other cities' gun-control measures. At issue in District of Columbia v. Heller was whether Washington's ban violated the right to "keep and bear arms" by preventing individuals -- as opposed to state militias -- from having guns in their homes. "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem," Scalia wrote. "That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct." More on American's relationship with the firearm Scalia was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, all of whom are considered conservative voices on the court. Justice Anthony Kennedy, often seen as a swing vote, also joined the majority. Justices John Paul Stevens and Stephen Breyer delivered dissenting opinions, and were joined by their liberal counterparts Ruth Bader Ginsburg and David Souter. District of Columbia officials argued they had the responsibility to impose "reasonable" weapons restrictions to reduce violent crime, but several Washingtonians challenged the 32-year-old law. Some said they had been constant victims of crimes and needed guns for protection. Hear the arguments presented to the high court � Scalia wrote that the majority was sympathetic to Washington's problems with guns and crime but that banning handguns was not a solution. "The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns," Scalia wrote. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home." Breyer, however, argued in his dissent that the framers of the Constitution did not present self-defense as their main reason for the Second Amendment. "The self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest," he wrote. "The Second Amendment's language, while speaking of a 'militia,' says nothing of 'self-defense.' " Washington residents can protect themselves from crime though other means, Breyer wrote: "The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition." iReport.com: What's your reaction to the ruling? In March 2007, a federal appeals court overturned the city's ban, which keeps most private citizens from owning handguns and keeping them in their homes. It was the first time a federal appeals court ruled a gun law unconstitutional on Second Amendment grounds. City attorneys urged the high court to intervene, warning, "The District of Columbia -- a densely populated urban locality where the violence caused by handguns is well-documented -- will be unable to enforce a law that its elected officials have sensibly concluded saves lives." There were 143 gun-related murders in Washington last year, compared with 135 in 1976, when the handgun ban was enacted. The Second Amendment says, "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 wording repeatedly has raised the question of whether gun ownership is an individual right, or a collective one pertaining to state militias and therefore subject to regulation. In an Opinion Research Corp. poll of 1,035 adult Americans this month, 67 percent of those surveyed said they felt the Second Amendment gave individuals the right to own guns. Thirty percent said it provided citizens the right to form a militia. The poll had a margin of error of plus or minus 3 percentage points. See poll results � The Supreme Court had avoided the question since the Bill of Rights was ratified in 1791. The high court last examined the issue in 1939 but stayed away from the broad constitutional question. Breyer expressed concern in his dissent that the majority's ruling could jeopardize the "constitutionality of gun laws throughout the nation." He added, "I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission." Only Chicago, Illinois, has a handgun ban as sweeping as Washington's, though Maryland, Massachusetts and San Francisco, California, joined the Windy City in issuing briefs supporting the district's ban. The NRA, Disabled Veterans for Self-Defense and the transgender group Pink Pistols -- along with 31 states -- filed briefs supporting the District of Columbia's gun owners. After the ruling, Wayne LaPierre of the NRA said his organization would immediately file court challenges to the bans in Chicago and San Francisco.

I can't wait to read the opinion to see if they said anything about state's rights to restrict gun ownership.

http://www.cnn.com/2008/US/06/26/scotus.guns/index.html

Court's opinion:

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

Had to be done...

the pic above...

So much for states having the ability to regulate arms on their own... I'm dying to see how Scalia supposedly walked the tight-rope between saying all restrictions should go and just the DC ban.

quote:

Originally posted by Lebezniatnikov So much for states having the ability to regulate arms on their own...

It's just like their inability to regulate freedom of speech, religion, press, etc. and those other federal amendments.

It's too bad that Kennedy's the only one whose position isn't completely predictable before even reading the facts of the case.

I quickly read scalia's opinion, but the opinion leaves many questions unanswered. First, the SC didn't even hold the law unconstitutional. The most important paragraph from the opinion:

quote:

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Unfortunately, the court did hold that the 2nd amendment right is an individual right. I summarized some interesting points below.

Perhaps the most important unanswered question the court didn't address is whether a state can infringe gun ownership. Since the case involved a DC law, this is only precedent for restrictions by congress and other instrumentalities of the federal government.

Next, Scalia reaffirmed the right to place restrictions on gun ownership, but he did not indicate how far that restrictions could go. Interestingly, it seems the court did not rule the DC law unconstitutional because there was a complimentary licensing provision. The court did state, however, that the licensing procedure can not be arbitrary and capricious (whatever that means). I suppose DC could make it extremely difficult to actually get a gun license, as long as it applies equally to all.

Lastly, the court said only that DC could not restrict gun ownership in the home. I'm not exactly sure of the impact of this because seemingly DC could restrict gun ownership everywhere else. That, however, effectively prevents DC from imposing an all out ban on gun ownership as this law did.

quote:

Originally posted by Lebezniatnikov So much for states having the ability to regulate arms on their own... I'm dying to see how Scalia supposedly walked the tight-rope between saying all restrictions should go and just the DC ban.

quite the opposite. Scalia reaffirm the right for gun restrictions, although giving no indication to what extent. As i noted above, there was no indication how this applies to states - although scalia didn't even address state's rights, so i guess states can still put up severe restrictions, and perhaps even ban guns altogether.

Obama's 1996 Illinois State Senate questionaire

quote:

Originally posted by Q5echo

and here i was hoping you were going to render an opinion that didnt relate to obama, bush or foreign policy

quote:

Originally posted by Lebezniatnikov So much for states having the ability to regulate arms on their own... I'm dying to see how Scalia supposedly walked the tight-rope between saying all restrictions should go and just the DC ban.

the conservative court ruled conservatively. in the interpretation of the law and it's application. JerZ has a pretty good handle on it IMO.

EDIT> even though i do not agree with JerZ's interpretation

quote:

Originally posted by pkcRAISTLIN and here i was hoping you were going to render an opinion that didnt relate to obama, bush or foreign policy

it's information. thats all it is. use it however you want, or not use it. i've provided no context (although it certainly is implied )

i just didn't feel like it warranted it's own thread.

quote:

Originally posted by Groundhog Boy It's too bad that Kennedy's the only one whose position isn't completely predictable before even reading the facts of the case.

because unpredictability is somehow a good thing when interpreting the Constitution?

quote:

Originally posted by Q5echo it's information. thats all it is. use it however you want, or not use it. i've provided no context (although it certainly is implied ) i just didn't feel like it warranted it's own thread.

i was just curious if you had an opinion on the decision.

can i ask a question of you more scholarly (and local!) fellas; what role does 'well-regulated militia' and 'defense of a free state' play in the decision making?

quote:

Originally posted by jerZ07002 Unfortunately, the court did hold that the 2nd amendment right is an individual right. I summarized some interesting points below.

Which is the biggest joke and it boggles the mind when people traditionally consider this statement as a "strict" interpretation of the constitution and the founders' intent. The language of the second amendment is somewhat confusing:

"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."

Does the clause guarantee the rights of militias for the purposes of defending the sate or the individual right of a person? It's grammatically confusing especially when you take into account it was written 300 hundred years ago, but the fact that it was written 300 years ago provides the necessary context. Some textual hints are provided by the fact that the text refers to the right of "the people" collectively rather than of "persons" individually and the phrase "bear arms."

At the time, the phrase to "bear arms" was used from a military context alone. In other words, it wasn�t used to convey a hunter carrying a weapon or a homeowner carrying a weapon for protection. As a matter of fact, an earlier draft of the second amendment carried additional language that stated: �no one religiously scrupulous of bearing arms shall be compelled to render military service in person,� it clearly refers to a militia that defends the state rather than an individual right. In addition, if one were to examine all state constitutions that existed as of 1789 they consistently used the phrase �bear arms� in military contexts and NO OTHER.

The inclusion of the phrase �the people� refers more to the notion that the �militia� or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. �The people� refers to the necessary tie between democracy and the military. When looking at the reference to �the people� in the second amendment consider the reference to �the people� in the preamble of the constitution. In the preamble, �the people� ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase �the people� represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons.

I�m a strict constitutionalist but if you want to talk constitution let�s talk 1700s, let�s use earlier drafts of the constitution as context, and let�s refer to other documents (like state constitutions that the federal constitution used as context) to define what the founding fathers really intended.

Btw the source for much of my material is from "America's Constitution " by Akhil Reed Amar. It seems quite authorative.

quote:

Originally posted by Q5echo because unpredictability is somehow a good thing when interpreting the Constitution?

That was the point of the "before even reading the facts of the case" phrase. You can predict the votes of the others without much effort at all if you know the topic.

BTW, Q, Obama disagreed with the child rapist death penalty case, so it looks like he flipped on the death penalty, too.

quote:

Originally posted by occrider Which is the biggest joke and it boggles the mind when people traditionally consider this statement as a "strict" interpretation of the constitution and the founders' intent. The language of the second amendment is somewhat confusing: "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." Does the clause guarantee the rights of militias for the purposes of defending the sate or the individual right of a person? It's grammatically confusing especially when you take into account it was written 300 hundred years ago, but the fact that it was written 300 years ago provides the necessary context. Some textual hints are provided by the fact that the text refers to the right of "the people" collectively rather than of "persons" individually and the phrase "bear arms." At the time, the phrase to "bear arms" was used from a military context alone. In other words, it wasn�t used to convey a hunter carrying a weapon or a homeowner carrying a weapon for protection. As a matter of fact, an earlier draft of the second amendment carried additional language that stated: �no one religiously scrupulous of bearing arms shall be compelled to render military service in person,� it clearly refers to a militia that defends the state rather than an individual right. In addition, if one were to examine all state constitutions that existed as of 1789 they consistently used the phrase �bear arms� in military contexts and NO OTHER. The inclusion of the phrase �the people� refers more to the notion that the �militia� or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. �The people� refers to the necessary tie between democracy and the military. When looking at the reference to �the people� in the second amendment consider the reference to �the people� in the preamble of the constitution. In the preamble, �the people� ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase �the people� represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons. I�m a strict constitutionalist but if you want to talk constitution let�s talk 1700s, let�s use earlier drafts of the constitution as context, and let�s refer to other documents (like state constitutions that the federal constitution used as context) to define what the founding fathers really intended. Btw the source for much of my material is from "America's Constitution " by Akhil Reed Amar. It seems quite authorative.

see, that makes perfect sense to me.

so why the tradition of the court to rule in other directions? is it purely a partisan-ish thing? i really dont get it. these are meant to be the sharpest legal minds, no?

quote:

Originally posted by pkcRAISTLIN can i ask a question of you more scholarly (and local!) fellas; what role does 'well-regulated militia' and 'defense of a free state' play in the decision making?

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.

"A well regulated Militia" is a purpose for the people's right to keep and bear arms.

there is no such language as you describe "defense of a free state". the language in the Constitution reads, "being necessary to the security of a free State"

it's pretty simple really. the Constitution recognizes the individual's right to keep and bear arms.

quote:

Originally posted by Q5echo 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. "A well regulated Militia" is a purpose for the people's right to keep and bear arms. there is no such language as you describe "defense of a free state". the language in the Constitution reads, "being necessary to the security of a free State"

well obviously i got a few of the words wrong, duh are you going to answer the question or not?

quote:

Originally posted by Q5echo the Constitution recognizes the individual's right to keep and bear arms.

yes, yes. i know what YOU think it means, but i wanted to know how the court interprets those things i highlighted? i find occrider's analysis pretty convincing. and even though i might not be able to quote the amendment verbatim, its pretty obvious (to me at least) that the constitution does nothing of the kind.

quote:

Originally posted by occrider The inclusion of the phrase �the people� refers more to the notion that the �militia� or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. �The people� refers to the necessary tie between democracy and the military. When looking at the reference to �the people� in the second amendment consider the reference to �the people� in the preamble of the constitution. In the preamble, �the people� ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase �the people� represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons.

you might want to reconsider that.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] 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.

the Preamble assigns no power to anything as you know. historically the phrase "We the people of the United States" has been interpreted as the citizens of the United States to exclude all others or Contitution's derivation of soveriegnty from the people.

from the Heller opinion:

quote:

As Sutherland explains, the key 18th-century English case on theeffect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep.404 (1716), stated that �the preamble could not be used to restrict the effect of the words of the purview.� J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America �the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.�

additionally

quote:

Three provisions of the Constitution refer to �the people� in a context other than �rights��the famous preamble (�We the people�), �2 of Article I (providing that �the people� will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with �the States� or �the people�). Those provisions arguably refer to �the people� acting collectively�but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a �right� attributed to �the people� refer to anything other than an individual right.6 What is more, in all six other provisions of the Constitution that mention �the people,� the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

are you saying that the people in We the people of the United States are only "represented by representatives who partook in constitutional assemblies" that secure the Blessings of Liberty to themselves and limited others?

quote:

Originally posted by pkcRAISTLIN well obviously i got a few of the words wrong, duh are you going to answer the question or not?

i'm sorry but there can not be any ambiguity or getting a few words wrong here.



[

quote:

yes, yes. i know what YOU think it means, but i wanted to know how the court interprets those things i highlighted?

youre right. i hastilly read your post.

yes they address and define almost every word and clause of the 27 word Amendment specifically in the dissent and the ruling >HERE< starts on page 7. but i think what you're looking for ends on page 10. the description of militias and the difference of individual rights though is throughout the opinion

quote:

the �militia� in colonial America consisted of a subset of �the people�� those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to �keep and bear Arms� in an organized militia therefore fits poorly with the operative clause�s description of the holder of that right as �the people.� We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

it's a very good read. read it all. won't take long at all. you know i luv ya.

quote:

Originally posted by Groundhog Boy BTW, Q, Obama disagreed with the child rapist death penalty case, so it looks like he flipped on the death penalty, too.

give him about a week

"Yesterday in the child rape case, Obama agreed with two Justices he voted against and disagreed with those he holds up as models. Today, revising a long held position on gun control, he agrees with Justice Scalia�s reading of the Second Amendment and again disagrees with Souter, Ginsburg, Breyer and Stevens. If only the Court could overturn Roe before the election, Obama would become a pro-lifer."

quote:

Originally posted by occrider Which is the biggest joke and it boggles the mind when people traditionally consider this statement as a "strict" interpretation of the constitution and the founders' intent. The language of the second amendment is somewhat confusing: "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." Does the clause guarantee the rights of militias for the purposes of defending the sate or the individual right of a person? It's grammatically confusing especially when you take into account it was written 300 hundred years ago, but the fact that it was written 300 years ago provides the necessary context. Some textual hints are provided by the fact that the text refers to the right of "the people" collectively rather than of "persons" individually and the phrase "bear arms." At the time, the phrase to "bear arms" was used from a military context alone. In other words, it wasn�t used to convey a hunter carrying a weapon or a homeowner carrying a weapon for protection. As a matter of fact, an earlier draft of the second amendment carried additional language that stated: �no one religiously scrupulous of bearing arms shall be compelled to render military service in person,� it clearly refers to a militia that defends the state rather than an individual right. In addition, if one were to examine all state constitutions that existed as of 1789 they consistently used the phrase �bear arms� in military contexts and NO OTHER. The inclusion of the phrase �the people� refers more to the notion that the �militia� or standing army should not consist of a permanent, hierarchical group that embodies a dangerous culture of non-changing elites, but rather a militia that truly represents the needs and desires of the changing electorate that it represents. �The people� refers to the necessary tie between democracy and the military. When looking at the reference to �the people� in the second amendment consider the reference to �the people� in the preamble of the constitution. In the preamble, �the people� ordained and established the Constitution, but NOT through individual assertions. The individual was represented by representatives who partook in constitutional assemblies. Clearly the phrase �the people� represents a holistic composition of people purposed with the role of contributing towards a militia to defend the state rather than any individual reasons. I�m a strict constitutionalist but if you want to talk constitution let�s talk 1700s, let�s use earlier drafts of the constitution as context, and let�s refer to other documents (like state constitutions that the federal constitution used as context) to define what the founding fathers really intended. Btw the source for much of my material is from "America's Constitution " by Akhil Reed Amar. It seems quite authorative.

scalia went at length describing the meaning of the individual parts of the amendment in what i consider absolute shit. seriously, who cares what the founders intended. it's outdated and the second amendment is the only serious issue i can think of where people throw around founder's intent. in my opinion, his support only begged the question. on top of that, his tone in the opinion was exceedingly arrogant and in my opinion insulting to justice stevens.

his main argument as to why the militia clause doesn't restrict gun ownership in that context is because the clause is precatory and only describes an instance in which the right is protected - thus it is not limiting. in that case, if the clause had no meaning why would it be included? why not just skip that part and just say "the right to bear arms shall not be infringed?" To me, that argument is frivolous.

i would love to know how many other words in the constitution scalia disregards. I don't know, but i'm sure it would be a great law review article, if there are other phrases in the constitution that are deemed 'precatory'.

quote:

Originally posted by Q5echo you might want to reconsider that. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] 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. the Preamble assigns no power to anything as you know. historically the phrase "We the people of the United States" has been interpreted as the citizens of the United States to exclude all others or Contitution's derivation of soveriegnty from the people. from the Heller opinion: additionally are you saying that the people in We the people of the United States are only "represented by representatives who partook in constitutional assemblies" that secure the Blessings of Liberty to themselves and limited others?

No I'm saying that "the people" referenced in the 2nd amendment bears the same connotation as "the people" in the preamble. The preamble does say "we the people" but it's not the case that EVERY American voted to ratify the constitution. Every American voted for a representative who then voted to ratify the constitution. Thus indirectly "the people" ratified the constitution. That's what the founding fathers meant when they said "we the people." Similarly, the second amendment is structured such that "the people" have a right to bear arms. And despite what we may think 300 years later, what it's really conveying is that militias have the right to bear arms and these militias are represented by "the people". Thus it's not conferring the right to every individual to bear arms for the purpose of self defense (that's not in the constitution); rather what it is saying is that the militias are constituted of "the people" and have a right to bear arms in defense of the state. So in other words, those elected by the people ratified the constitution, while those who are deemed worthy by the state and elect to be a part of the state militia have a right to bear arms. By simply looking at earlier revisions of the second amendment you can clearly figure out what the intent of the founding fathers were.

Btw I would love to continue this argument but I'm going on vacation to the Galapagos in about 10 hours so any rebuttal on my part will have to wait 2 weeks. But by all means i love talking constitution so fyi I'll def respond, it'll just come in two weeks time

Cheers.

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