11.30.07
• Harvard Crimson Editorial
Begin Editorial:
“Written in an age in which minutemen rose to dress and fight at a moment’s notice, the Second Amendment was no doubt motivated by a young nation’s concern for its own safety and stability. But now, when the United States is protected by the most powerful security forces on the globe, the Second Amendment is neither relevant nor useful. Rather, it has become an impediment to vital public policy, and it should be repealed and replaced with nuanced federal legislation.”
[…]
. . .Gun advocates claim the need for handguns in self-defense, but such considerations are moot when weighed against the number of lives that might be saved by making the weapons illegal.
In the context of today’s society, the Second Amendment is outdated. Constitutional debates over its interpretation stand in the way of the implementation of pressing public policy. Instead of wasting time attempting to fix this anachronism, we should repeal this amendment and focus our efforts on legislation that will actually protect the “security of a free state”—a charge explicit in the Second Amendment.
– Editorial From Crimson Editorial
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“This year will go down in history. For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient, and the world will follow our lead into the future.” Adolf Hitler, 1935False Attribution to Hitler
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• NY Times Editorial
Opinion section, NY Times, Editorial
The Court and the Second Amendment
Published: November 21, 2007
Correction Appended
By agreeing yesterday to rule on whether provisions of the District of Columbia’s stringent gun control law violate the Second Amendment to the Constitution, the Supreme Court has inserted itself into a roiling public controversy with large ramifications for public safety. The court’s move sowed hope and fear among supporters of reasonable gun control, and it ratcheted up the suspense surrounding the court’s current term.
The hope, which we share, is that the court will rise above the hard-right ideology of some justices to render a decision respectful of the Constitution’s text and the violent consequences of denying government broad room to regulate guns. The fear is that it will not.
At issue is a 2-to-1 ruling last March by the United States Court of Appeals for the District of Columbia Circuit that found unconstitutional a law barring handguns in homes and requiring that shotguns and rifles be stored with trigger locks or disassembled. The ruling upheld a radical decision by a federal trial judge, who struck down the 31-year-old gun control law on spurious grounds that conform with the agenda of the anti-gun control lobby but cry out for rejection by the Supreme Court.
Much hinges on how the justices interpret the Second Amendment, which 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.”
Opponents of gun control sometimes claim a constitutional prohibition on any serious regulation of individual gun ownership. The court last weighed in on the amendment in 1939, concluding, correctly in our view, that the only absolute right conferred on individuals is for the private ownership of guns that has “some reasonable relationship to the preservation of efficiency of a well-regulated militia.” The federal, state and local governments may impose restrictions on other uses — like the trigger guards — or outright bans on types of weapons. Appellate courts followed that interpretation, until last spring’s departure.
A lot has changed since the nation’s founding, when people kept muskets to be ready for militia service. What has not changed is the actual language of the Constitution. To get past the first limiting clauses of the Second Amendment to find an unalienable individual right to bear arms seems to require creative editing.
Beyond grappling with fairly esoteric arguments about the Second Amendment, the justices need to responsibly confront modern-day reality. A decision that upends needed gun controls currently in place around the country would imperil the lives of Americans.
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My Commentary:
Some ask why I put anti-gun articles on my blog. To answer that, I would suggest reading Sun Tzu, The Art of War. He valued positioning in strategy and that position is affected both by objective conditions in the physical environment and the subjective opinions of competitive actors in that environment.
For us (supporters of the Second Amendment) to ignore those advocating the death of your rights will have and is having devastating consequences. We sure as hell better fully understand the “subjective opinions of competitive actors!”
This New Yorks Times Editorial is par for the course. I have highlighted the pertinent comments in the editorial. Because judges do not agree with their ideology, then they are branded activist or radical or right wing or what ever their pejorative dejour is.
I think we should all think long and hard about some of the ramifications of what the author is suggesting. He absolutely hangs his hat on the militia clause and stops there. He completely ignores the very meaning and intent of the Bill of Rights and why James Madison wrote it, plus the documents he drew on to craft the rights. Clearly, the NYTimes author is being intellectually dishonest by ignoring this history and the clear [clear] intent that the first 10 Bill of Rights be rights that are specific to the individual and not collect. It makes zero sense for the 2nd amendment to be the stand out exception to this historic document.
What’s more, have the honest, hard working citizens of Washington D.C. been made safer by the constitutional travesty foisted on them by a few crack pots? In a word, Not Even Close. Murder rates have only risen the last 31 years. In fact, the murder rate trended down for the 5 years preceding the Orwellian ban on hand guns and the subsequent right for a person to defend themselves. Another failure for social engineers.
No court or political body has the right to prevent me from defending myself or my family. This is a natural right and it must be guarded jealously. The crime and murder problems this country has can not be laid at the feet of honest Americans that carry a concealed weapon or keep one in the house for self-defense. It is, however, a societal marker that etches in history, the point where families and morality have completely broken down.
Fastmetal
• Big Win for 2nd Amendment
by Timothy Lynch
This article appeared in Human Events on March 12, 2007
There was a legal tremor in the nation’s capital last week. On Friday, a federal appeals court invoked the 2nd Amendment to the Constitution to rule that citizens who reside in the District of Columbia can keep a handgun in their home for self-protection. The reaction from the political establishment was apoplectic. The local politicos do not just disagree with the legal ruling, they think it is “outrageous.” D.C. Mayor Adrian Fenty has promised “to do everything in his power to get the decision overturned.” The battle over the meaning of the 2nd Amendment has just entered a new and crucial phase. A long-awaited showdown at the Supreme Court now seems imminent.
The Lawsuit
Why is this long-simmering dispute is coming to a head now? After all, the 2nd Amendment has been with us from the beginning of the Republic and gun control laws have been proliferating for generations. The main reason has been pretty straightforward: No one is quite sure how this Supreme Court would rule in a 2nd Amendment case. To be sure, as more conservative justices have joined the court, the prospects for a favorable ruling have improved since conservative jurists tend to emphasize the text of the Constitution and the original understanding of that text. Still, no one is really sure about the outcome of a pivotal case.
The situation changed when in May 2001 then-Attorney General John Ashcroft announced a change in policy at the Department of Justice with respect to the 2nd Amendment. Ashcroft said the Department was adopting the view that the Amendment protects an individual right to keep and bear arms. It was an important symbolic victory because it showed that the conventional view—that the Amendment was only about militias and the National Guard–was losing not only academic but institutional support. Then a thorny problem arose. Criminal defense lawyers started to invoke the 2nd Amendment against federal prosecutors whenever they represented a client who was facing federal firearms charges. The sudden eruption of 2nd Amendment legal challenges meant that appeals courts would soon be addressing the issue and precedents would soon be coming left and right.
D.C. lawyers Alan Gura and Robert Levy decided to go on the offensive and file a constitutional challenge to the District of Columbia’s gun control laws, which are so draconian that residents cannot even keep a gun in their own home. (Levy is also a legal scholar at the Cato Institute, where I work). Gura and Levy represent a handful of ordinary, responsible adults who would like to have a gun in their home for self-defense. One of the plaintiffs, a man named Dick Heller, works as a guard in a federal building. Under the bizarre laws of Washington, D.C., it is okay for Keller to have a gun during the day, but unlawful for him to have it with him in the evening in his home for self-defense.
The Appeals Court Ruling
Gura and Levy were prepared to lose in the lower courts just so that they could ultimately bring a strong appeal to the Supreme Court. It was a pleasant surprise to them that a federal appeals court agreed with their arguments last week.
The legal merits of the controversy concern the meaning of the 2nd Amendment, which provides, “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 court noted that there are “two camps” in the debate over the meaning of the 2nd Amendment. “Collective rights theorists” maintain that the Amendment secures the power of state governments to preserve and arm militias. The other camp, “individual rights theorists,” maintains that the Amendment protects a right of individuals to possess arms for private use, such as self defense. The court readily admitted that the phrase “bear arms” could be read to have a military connotation, but only if it is viewed in isolation. Since “the people” and “keep” have individual and private meanings, the court concluded that “the 2nd Amendment protects an individual right to keep and bear arms.”
The court allowed that the government could still regulate the ownership and use of firearms since it noted such regulations in the common law even prior to the ratification of the American Constitution. So the court proceeded to consider whether the D.C. laws actually infringed upon the plaintiffs’ right to keep and bear arms. But the city attorneys essentially admitted that D.C.’s firearm registration system amounted to a prohibition on handgun ownership, the court had little difficulty in concluding that the laws were unconstitutional.
What Happens Now?
Within a few hours of the ruling, Fenty vowed to “vigorously enforce our handgun laws” as the city seeks to overturn this favorable 2nd Amendment precedent. Thus, as a practical matter, there is no immediate change in the law. Anyone found with a handgun in D.C. still risks arrest and imprisonment.
The Supreme Court will soon be asked to review this case. If the court declines review, the favorable precedent will stand and D.C. will have to make some changes so as to allow residents to keep handguns in their homes. But court watchers seem to agree that it is more than likely that the Supreme Court will hear this case. The federal appeals courts around the country have issued conflicting rulings with respect to the 2nd Amendment and that is usually when the high court takes a case — so as to bring uniformity to federal law.
Even if the court takes the case and issues a favorable 2nd Amendment ruling, expect small steps. This case only concerns handguns in the homes of D.C. residents. Nothing else. Many questions about the scope of the 2nd Amendment will be left for future litigation. Just as free speech and property rights controversies never cease, neither will controversies over the meaning of the 2nd Amendment. The key thing is to take a step back and observe the overall trend line. After a long period at the very bottom of the “constitutional chart,” the 2nd Amendment is finally moving in the right direction.
• Unholster 2nd Amendment
( This article appeared in the Los Angeles Times on November 14, 2007)
by Robert A. Levy
It’s been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the 2nd Amendment. It’s been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It’s been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban — among the most restrictive in the nation — unconstitutional. The obvious incongruity of those three events could be resolved soon.
Later this month, the Supreme Court will decide whether to review the circuit court’s blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals. If the high court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. (Full disclosure: I am co-counsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
The stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged 2nd Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations.
Equally important, if the Supreme Court affirms the D.C. circuit’s holding, state gun control laws across the nation could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated.
The first is the knotty question of whether the 2nd Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But in the aftermath of the Civil War, much of the Bill of Rights was considered “incorporated” by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the 2nd Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.
The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.
Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder). Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing.
But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.
[I]t’s time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
Meanwhile, the high court also will have to reexamine its 1939 gun case, United States vs. Miller, which generated more heat than light regarding the 2nd Amendment. The core holding of Miller, stripped of confusing clutter, was that protected weapons must be “in common use” and must bear “some reasonable relationship to the preservation or efficiency of a well-regulated militia.”
Parker is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently “in common use,” and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the 2nd Amendment should not attempt to link each and every weapon to the militia — except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.
Significantly, the 2nd Amendment refers explicitly to “the right of the people,” not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties.
That is why there has been an outpouring of legal scholarship — some from prominent liberals — that recognizes the 2nd Amendment as securing the right of each individual to keep and bear arms.
Considering the text, purpose, structure and history of our Constitution, and the clear weight of legal scholarship, it’s time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
Opinion and Commentary
Gun Prohibitionists Mostly Misfire
Thanks to the Second Amendment
Should Congress or the Courts Decide D.C. Gun Ban’s Fate?
Individual Ruling: D.C. Gun Ban Goes Down
11.29.07
• Paul Helmke, 2nd Amendment
The following anti-gun views are making their way around the blog-o-sphere. The below article was written by Paul Helmke, who served as President of the Brady Campaign/Center to Prevent Gun Violence since mid-July 2006. His entire argument revolves around the relevancy of the “well regulated malitia” portion of the 2nd amendment. His view is this portion of the Bill or Rights was ignored in the Parker v. D.C. ruling.
Strangely, by inference, Mr. Helmke does exactly what he accuses the pro-gun lobby of – parsing the 2nd amendment.
“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 statement is made up of two independent clauses: The militia clause “and” the keep and bear Arms clause. This is two independent statements that do not require the other in order to be valid. One is not the antecedent to the other. Apparently Mr. Helmke use Al Goreian logic to derive a premise and conclusion – avoiding the “inconvenient truth.”
We pro-gun advocates are not “uncomfortable” with the militia clause. But, I am not aware of a militia that exists in Washington D.C. Are we to trash the entire amendment because we no longer have militia’s? His conclusion is preposterous.
Mr. Helmke completely (and maliciously) ignores the entire genesis of the Bill or Rights and why they were included in the Constitution, by James Madison, in the first place.
I find it nothing short of amazing that these Huffingtonites are so quick to trample the second amendment, and yet jealously guard the “individuals” rights that were clearly intended for amendments one through ten.
Mark my word, if the second amendment is sliced up, that same knife will be used on the rest of our “individual” rights. Finally, I don’t need a constitution to give me the right of self preservation. This right is self evident.
Fastmetal
by Paul Helmke
The Second Amendment: 13 + 14 = 27
Posted November 28, 2007 | 05:20 PM (EST)
Contrary to gun lobby dogma, there are actually 27 words in the Second Amendment.
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The Amendment reads, in full:
“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.”
There is the “Militia purpose” clause, with 13 words. Then there is the “keep and bear Arms” clause, with 14 words. Two clauses and 27 words. This is an uncomfortable fact to those accustomed to reading only half of the Amendment, reciting the last 14 words over and over again as if the first 13 didn’t exist.
The Constitution says they do exist, and so we must read the whole Second Amendment. We must give effect to all of its words – not just the ones we like – to understand what the Amendment means.
In the case [pdf] now on appeal to the US Supreme Court, however, two judges on the DC Circuit Court of Appeals virtually “erased” the 13 words of the “Militia purpose” clause altogether, and made them practically meaningless. This is just one more reason why the Appeals Court decision was clearly erroneous and should be reversed.
You can read why in the second installment of the Brady Center Legal Action Project’s thorough critique of the lower-court opinion titled, Decision By Eraser: How the Parker Court Obliterated Half of the Second Amendment.
