Its actually pretty simple, lets look right at the text:
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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.
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Note that it does not say the right of the militia to keep and bear arms. Also note that there are no militias.
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Now, who are these people you may ask? Aren’t they the national guard or something? Lets see what the constution says:
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We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
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No, I dont think the whole “national guard has it covered” arguement really works in any way. You can’t just disregard a phrase: the right of the people to keep and bear arms – because you don’t agree with it.
goldsteingonewildsays
my favorite is the last illustration. we should clip it out and run it with caption of “Even the NRA fears global warming.”
laurelsays
to make Katie Couric scowl. But surreal is right. I did get the feeling I was reading spiffed up skinhead propeganda. I’m sure it was no mistake that the “good guys” were always depicted as a white hetero family protected by the hubby.
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“Oh Spiff, I’m so afraid! Those brown people moved in next door.”
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“Don’t worry, Sally, I’ll protect you and little Johnny from the rapine hands of the niggerjewcommiefaggot!”
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BOOM! Thunk!
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“Spiiiifff?!!”
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“Call the ambulance Sally, there has been a misfire!” /caugh, groan, moan/
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“Hello? Is this Bigotville General? This is Sally. Spiff has prematurely ejaculated shot himself! Ambulance, please!! WHat’s that you say? EMTs Juan and Shaniqua are on ther way – Dr. Goldstein stands at the ready – with nurse Nelly Boy there to ably assist? Oh THANK YOU BG! God Bless America!!!” /relieved sobbing/
… that they actually published that, for what its worth. Somebody leaked a copy that had been prepared to the press (probably giving it wider circulation than it may have ever gotten otherwise!)
I wonder. Is the MA state militia holding training sessions according to the discipline prescribed by Congress? If not, I guess the state has been derelict in its duties required by the federal constitution.
kaisays
The very next section says that I am part of the unorganized militia which “shall not be subject to duty except in case of war, actual or threatened, invasion, the prevention of invasion, the suppression of riots, and the assisting of civil officers in the execution of the laws.” When called upon, I’ll serve, but I’m not holding my breadth waiting to be drafted by my selectmen.
about the Second Amendment fetishists’ inability to muster any kind of serious debate.
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The “plain meaning” arguments are the saddest. If the Amendment’s meaning is so terribly obvious, why is their so little evidence that the original legislatures and citizens understood it that way? They seemed to have no compunction about forbidding firearm ownership among Catholics, servants, and blacks (both free and slave). Most of the surviving discussion about militias seem to be complaints about the pathetic state of the militiamen’s rusty guns.
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Second Amendment scholarship is a complex area. Unfortunately, it never seems to go anywhere but around in circles, probably because the NRA crowd can’t make any contributions more serious than cartoons.
Man, it sure is difficult to get substance out of your posts, so filled with melodrama as they are. But I think you may have tried to say something here:
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If the Amendment’s meaning is so terribly obvious, why is their so little evidence that the original legislatures and citizens understood it that way? They seemed to have no compunction about forbidding firearm ownership among Catholics, servants, and blacks (both free and slave).
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Wouldn’t you say the same thing about the other amendments then? Aren’t they all worthless if they weren’t granted to everyone at the outset?
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Personally I still put alot of stock in the constitution, but I realize that to others it is merely an obstacle.
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The court opinion in this case is filled with substantial reasoning and what appears to me to be sound logic. If you find it sad, pathetic, circular, etc then please do point out which parts – try to stick to the central issues if you dont mind.
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Throwing smoke about the NRA pamphlet is not going to help.
steverinosays
Man, it sure is difficult to get substance out of your posts
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A lie, of course, but no need to debate it when others can read. Your posts are the ones that consist entirely of snide quips and a tissue of assertions, such as:
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Its actually pretty simple, lets look right at the text:
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The circuit court may be right or wrong, but its opinion certainly does not remotely rely on a simple look at the text of the Second Amendment. Indeed, it seeks to develop a lexicon of language from looking at the rest of the document outside the Amendment.
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Wouldn’t you say the same thing about the other amendments then? Aren’t they all worthless if they weren’t granted to everyone at the outset?
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Various constitutional rights and protections were explicitly denied to Africans and to women by the language of the Constitution itself. Here, early legislatures seem to have happily trampled on the rights you assert were clear and explicit “right from the text” without a peep of protest.
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Personally I still put alot of stock in the constitution, but I realize that to others it is merely an obstacle.
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Translation: “I have utterly failed to prevail against others’ arguments, so I must contrive fake arguments to put into their mouths instead.”
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We are debating about what the Constitution says, not whether we are listening to it.
as usual, nothing but insults and “WRONG!”s with no backing.
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P1: worthless
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P2: “seeks to develop a lexicon of language…”
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if you try really hard you might be able to come up with a coherent point here, maybe you mean that a district court should be looking [not just at a “lexicon” of language but] at case history from this and other courts as well as applicable decisions from the supreme court, however small the application to this case might be… but then again, the court decision spent a great deal of time considering a multitude of related cases, more than just a “lexicon of language” to be sure. What is your point exactly? That the court considers more than just the text of the amendment? Of course they do. They did in this case. Notwithstanding a very large amount of this sort of thing, they ultimately relied on interpreting the language of the amendment itself, as, it seems to me, they should.
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P3: So is the first amendment a dead letter as well then? What are you saying, exactly?
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P4: if you would ever make an argument instead of just spewing high and mighty vitriol, proclaiming yourself above debate in nearly every case (or more accurately, my points as beneath debate with the likes of you) then maybe I wouldn’t have to guess at where you stand. If in fact you stand anyplace.
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steverinosays
my points as beneath debate
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that about sums it up.
anthonysays
…..from a circuit court of appeals hardly settles a constitutional issue, and it certainly has no effect in MA (1st circuit).
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This will not be settled until the SCOTUS weighs in. And I suspect that if they do it will be a 5/4 decision and as such still not all that settled.
rajsays
…the federal constitution does not even presume that DC would have a militia.
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The federal constitution presumes (but does not require) that the states will have militias, and provides some federal regulation of them in Article I.
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NB: the National Guard is not the militia. The National Guard is a joint federal/state program covered by a separate provision of the federal constitution (the one that holds that the Congress can raise armies, etc.).
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I’ve gone through this ’round and ’round on too many right wing web sites to interest me any more, but what the “2d amendment absolutists” really want to do is to read the introductory clause regarding the “well-regulated militia” out of the constitution. As far as I’m concerned, it’s a crock–all words in the constitution should have effect–but nobody knows what the idiots on the Supreme Court might do.
kaisays
sections four and ten make it is pretty clear that the National Guard is the organized militia of the Commonwealth. The rest of us compose the unorganized militia.
kaisays
sections four and ten make it is pretty clear that the National Guard is the organized militia of the Commonwealth. The rest of us compose the unorganized militia.
rajsays
…an organized militia and a disorganized–oops, unorganized militia. Either the state has a militia–subject to training prescribed by congress, or it doesn’t.
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I’m not exactly sure how more plainly I can say it. The national guard is not a militia. It is a joint federal/state army.
eaboclippersays
David wrote:
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It is written by Judge Silberman, who despite his advanced age remains one of the most activist right-wing judges on the bench.
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So when a “right wing” justice strikes down a law based on what is actually written in the Constitution, he’s an activist.
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But when a “progessive” chief justice of the Supreme Judicial Court comes up with a convoluted argument to force the creation of a new law for same sex marriage, she is insigtful.
that Silberman is a conservative activist judge, just as Justice Thomas and, to a slightly lesser degree, Justice Scalia are. Similarly, the Warren Court was fairly activist on the liberal side. And I’ve never claimed that Goodridge was not an “activist” decision. “Activist” doesn’t mean “wrong,” necessarily.
1. Activist is certainly “wrong” for democracy – in that you replace legislation by elected bodies and democratic process with legislation by a cadre of appointed judges.
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2. This guy may be an activist or not, but I’ve seen nothing activist in this decision. Its all straight from the constitution:
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We are told by the District that the Second Amendment was
written in response to fears that the new federal government
would disarm the state militias by preventing men from bearing
arms while in actual militia service, or by preventing them from
keeping arms at home in preparation for such service. Thus the
Amendment should be understood to check federal power to
regulate firearms only when federal legislation was directed at
the abolition of state militias, because the Amendment’s
exclusive concern was the preservation of those entities. At first
blush, it seems passing strange that the able lawyers and
statesmen in the First Congress (including James Madison)
would have expressed a sole concern for state militias with the
language of the Second Amendment. Surely there was a more
direct locution, such as “Congress shall make no law disarming
the state militias” or “States have a right to a well-regulated
militia.”
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…
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In determining whether the Second Amendment’s guarantee
is an individual one, or some sort of collective right, the most
important word is the one the drafters chose to describe the
holders of the right-“the people.” That term is found in the
First, Second, Fourth, Ninth, and Tenth Amendments. It has
never been doubted that these provisions were designed to
protect the interests of individuals against government intrusion,
interference, or usurpation. We also note that the Tenth 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”-indicates
that the authors of the Bill of Rights were perfectly capable of
distinguishing between “the people,” on the one hand, and “the
states,” on the other. The natural reading of “the right of the
people” in the Second Amendment would accord with usage
elsewhere in the Bill of Rights.
The District’s argument, on the other hand, asks us to read
“the people” to mean some subset of individuals such as “the
organized militia” or “the people who are engaged in militia
service,” or perhaps not any individuals at all-e.g., “the states.”
See Emerson, 270 F.3d at 227. These strained interpretations of
“the people” simply cannot be squared with the uniform
construction of our other Bill of Rights provisions. Indeed, the
Supreme Court has recently endorsed a uniform reading of “the
people” across the Bill of Rights. In United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990),…
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its a good read
hoyapaulsays
Activist is certainly “wrong” for democracy – in that you replace legislation by elected bodies and democratic process with legislation by a cadre of appointed judges.
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You mean like interrupting the democratic process by striking down gun control legislation? Seems like you like THAT kind of activism.
So you would like judges getting into the business of what weapons are acceptable to ban (say, nuclear weapons) and which are ones are not? Is a M16 rifle an “Arm” under the 2nd Amendment? Is a fully automatic pistol, as opposed to a semi-automatic pistol, an “Arm” that would be typically used in a militia?
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These are distictions legislative bodies should be making as part of the democratic process, not elderly judges setting forth long and largely pointless law review articles on the subject.
In this case the issue is a complete ban on gun ownership – not a judgement on which weapons are acceptable vs. unacceptable.
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Machine guns have been illegal since the ’30s and that was a legislative clarification that was upheld by the courts all the way to the top.
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In my personal view a proper standard should be that you can own whatever a standard soldier carries (m16 I guess) but the law is more restrictive, and I’m more or less OK with that.
hoyapaulsays
It is a judgment on what weapons are acceptable vs. not acceptable. The decision pretty explictly gets into that discussion near the end of the opinion, when the question of whether the 2nd Amendment protects only those weapons that were around the time of the adoption of the Amendment comes up.
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The issue in this case was a regulation that was not explictly a complete ban on handgun ownership. So the question becomes: would a complete ban on M16s be OK under the Constitution? How about handguns? How about bazookas?
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Do you really want the courts to decide these questions, or a democratically-elected legislative authority?
rajsays
Or sawed-off shotguns–the weapon at issue in US vs. Miller.
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It was fairly clear from the opinion in US vs. Miller that the Supreme Court was tying the claim to a 2d amendment right to “keep and bear” a weapon was whether or not the weapon was suitable for use in a militia. The opinion was cryptic, but that suggestion clearly came through.
steverinosays
You say:
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In this case the issue is a complete ban on gun ownership – not a judgement on which weapons are acceptable vs. unacceptable
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The opinion says:
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Appellants, six residents of the District, challenge D.C.
Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code § 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon want to possess handguns in their respective homes for self-defense. Gillian St. Lawrence owns a registered shotgun, but wishes to keep it assembled and unhindered by a trigger lock or similar device. Finally, Dick Heller, who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wishes to possess one at his home. Heller applied for and was denied a registration certificate to own a handgun. The District, in refusing his request, explicitly relied on D.C. Code § 7-2502.02(a)(4).
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So much for your repeated claims of having read the decision.
steverinosays
you have marked a straight quote from the decision for deletion.
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I thought it was a model of Constitutional jurisprudence only a few comments ago?
At oral argument, counsel for the District maintained that
we should not view this as a licensing case for standing purposes
because D.C.’s firearm registration system amounts to a
complete prohibition on handgun ownership.
steverinosays
Self-demolisher says:
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complete ban on gun ownership
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Self-demolisher backs this up by quoting one party (the one he likes, who gives him the best possible ammunition for his side):
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complete prohibition on handgun ownership
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The Supreme Court ought to have a sign: “Your IQ must be this high to give your opinion on Constitutional law.”
that was the argument of the district, steverino the comic insult dog.
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Its true I should have said ban on handgun ownership, not ban on gun ownership. Someday you’ll learn to point out things like that without wild melodramatic conniptions.
steverinosays
self-demolisher’s subject:
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wrong
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self-demolisher’s text:
Its true
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Which completely wipes out your argument against Hoyapaul:
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In this case the issue is a complete ban on gun ownership – not a judgement on which weapons are acceptable vs. unacceptable.
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because the DC law neither banned all guns, nor banned ownership of handguns, but severely restricted it to the point where they could not be operational. In fact, the case hinged on a legislative “judgement” of which weapons are acceptable, and which are not.
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Anyway, you’ve wasted enough of our time in this pointless argument. It’s clear you rely on “gut feel” to tell you what the second amendment says, then just randomly clip quotes to support your intuition, without actually reading them. In such a situation, who cares what your intuition says?
Steverino the comic insult dog, you really should learn to admit when you are wrong. Take an example from my post: I admitted that I should have said ban on handguns, not on all guns. Yes, this undercuts my argument to some degree about total ban vs. judgement on what guns you can own. But make no mistake, DC is not issuing any new permits for handguns – disassembled or not – unless you are a retired police officer. Understand?
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OK now what did you get wrong? Aside from your endless hyperbolic conjecture about me, you asserted that I took the “handguns are banned” position from my own side, where I did not. It came from the district. This marks the third time I’ve pointed it out to you. Even if you won’t admit that you got it wrong, hopefully you have learned by now.
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Now, if I were Steverino the insult comic dog I’d have said something like:
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“Who let this troll retard on the board anyway, what a waste of all of our time reading tripe from this low-iq talking points regurgitator who can’t even write a single post of his own much less control his hissy fits or at a minimum, read the case correctly not to mention figure out his own folly when its pointed out to him three times in a row. Fool. You really should read daily kos more. Really, You should.”
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Productive? Perhaps not. Take a lesson Steve.
steverinosays
self-demolisher said, cryptically:
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you asserted that I took the “handguns are banned” position from my own side, where I did not.
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Perhaps you are referring to the fact that I pointed out to you that no one in the case, including those with whom you say you agree, ever took the position that the DC legislation banned all guns.
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But who knows?
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So you have finally conceded error on your central point. If you want, you can continue to argue endlessly based on misreading, not thinking, and a misplaced reflexive desire to “win,” until you are finally forced to concede every other point, too. But I think there are probably better uses of my time, and yours.
At oral argument, counsel for the District maintained that
we should not view this as a licensing case for standing purposes
because D.C.’s firearm registration system amounts to a
complete prohibition on handgun ownership.
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steverinosays
check out that link.
steverinosays
an “activist” is a judge whose opinions you disagree with.
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Activist is certainly “wrong” for democracy – in that you replace legislation by elected bodies and democratic process with legislation by a cadre of appointed judges.
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There is always room to debate whether any given opinion is supported by statute and precendence.
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However, the claim that all law in the United States originates exclusively with legislative bodies, and never with courts, reveals a shocking, no, embarassing ignorance of the very foundations of Anglo-American jurisprudence.
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I commend you to Blackstone, for starters.
rajsays
…the possibility of Supreme Court review in light of a “conflict among circuits.”
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I don’t know the details of the other cases that you are referring to that you believe might create the “conflict,” but recognize that if they relate to state gun control laws, there is a fundamental distinction between those and DC. Under the constitution, the federal government has plenary powers over DC, the same as in the territories, forts, etc. That is not true regarding the states. The 2d amendment has clearly been held to be a limitation on federal government powers. The federal government cannot devolve powers (such as matters of gun control) to the DC government that it (the federal government) does not have.
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So, this case may be in stark contrast to the cases in the other states for that reason.
…whether or not I read the decision, the fact is that the distinction I made between DC and the states still holds. If you notice, I was not critiquing the decision, I was suggesting a reason why there might not be the conflict among circuits that had been suggested in the post.
kaisays
The 2d amendment has clearly been held to be a limitation on federal government powers.
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Everything in the Bill of Rights was originally written that way. However, most of them have been applied to the states through the 14th amendment. What makes you think that the 2nd won’t be applied to states as well? After all the 1st is pretty clear in that “Congress shall make no law…” but its been applied to the states.
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I do remember from a ConLaw class a few years ago that the 2nd has not yet been applied.
rajsays
The reason really should be obvious from the language of the 2d amendment.
kaisays
I know it hasn’t yet. I’m asking what makes the 2nd special so that it won’t ever be.
rajsays
…the part relating to the militia, and then read the parts of Article I relating to the militia. It should be fairly obvious.
anthonysays
amendment is just ambiguous enough for the Supreme Court to rule either way, although I suspect the current Court would rule to affirm the appeals court decision.
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As far as judicial activism is concerned, I do not embrace the concept. Judges are charged with the duty of interpreting the Constitution and presiding over the development of the common law. It is their job to help decide what the law actually is. I don’t think it does any good to throw this term around like it actually means something other than “I don’t agree with this decision.”
mae-beesays
the bumper stickers that read, “When Guns Are Outlawed, Only Outlaws Will Have Guns. How simplistic, how absurd.
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Now I see how it is turning true. Here we are in Massachusetts, home of the most stringent guns laws in the country and where men, women and children are being shot down in the streets every day. Are those shooters are really worried about having an illegal firearm?
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The police are shown to be impotent, opting to arrest a seagull killer or a couple lite-brite distrubutors to divert attention away from people murders. Maybe it is time to rethink the gun laws. The politicians arguments for gun control making the cities safer are proved wrong.
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(No, I don’t have a firearm and don’t plan to get one.)
Maybe it is time to rethink the gun laws. The politicians arguments for gun control making the cities safer are proved wrong.
Uh, your reasoning seems a bit, uh, absent from your comment. What makes you think that there wouldn’t be way more guns and more shootings if we didn’t have the existing laws?
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Improving the state economy, developing jobs that pay a living wage, quality public k-12 education, affordable state college tuition and fees, root causes of illegal drug use and sales, drug cartels, deeply embedded racism in individuals and in society…
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Tackling these issues holds more promise to reduce urban violence than promoting a gun free for all, I’d wager (just a figure of speech for me; I don’t gamble and stringently oppose that regressive tact to bolster the state budget coffers, in case anyone was wondering).
pisk-mumzasays
“Rethinking gun laws”? What right does she have to rethink plans proposed for many years by responsible leaders? Mae should think about getting counseling. People like that endanger society. People like that would put a gun in the hands of everyone.
rajsays
…is a separate question from whether or not gun control laws violate the 2d amendment.
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I wish that those who advocate against gun control laws would recognize that distinction. They should make their case that particular gun control laws should be repealed or proposed laws not be enacted because they are unwise for this, that, or the other reason, and not go through this folderol that they violate the 2d amendment.
but if this case does end up being heard by the Supreme Court I fully expect–and look forward to–the NRA pamphlet and its stimulating visuals being used as evidence (by which side?…. both? and how might that play out?… esp. if the timing of the case is during the Pres. Race). What a country we’ve become.
rajsays
…but a few years ago I was informed of a case that the gun-rights advocates (to use an emotive-neutral phrase) that was denied cert. I forget the caption of that case, but it appeared that the facts were more conducive to a decision on the 2d amendment than this one, particularly given the reservations that I have described.
trickle-upsays
Is the Federalist Society counting votes on SCOTUS? Is that why this and the assault on Habeas Corpus is happening all of a sudden?
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Or is this just their last shot at rewriting the Constitution while they still have a chance?
hoyapaulsays
This NRA pamphlet truly is bizarre, and thanks David for pointing this out.
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Please:
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Second Amendment freeom totally stands naked in the path of a marching axis of adversaries far darker and more dangerous than gun owners have ever known.
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This is the type of hyper-ideological pap that I simply cannot stand. Let’s wrap hyperbole and paranoia together and we’ll get the modern gun-rights movement. Add a dash of black helicopers and we get complete insanity, i.e. the National Rifle Association.
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As far as the case goes, I’d be quite surprised if the Supremes eventually upheld this decision, but I suppose you never know. If anyone ever needs confirmation that right-wing activism exists, they can check out Judge Silberman’s line of reasoning (as well as Scalia’s and Thomas’s reasoning in affirmative action cases).
David, that pamphlet needs to be read by as many people as possible. You should really give it its own front-page treatment. Amazing.
kbuschsays
Lacking apparently a more interesting playground, we seem to be swimming in conservatives playing “gotcha” on this posting — which would otherwise be very interesting to discuss among the center-left. On the center-left, we pretty much all believe that the government has some role in regulating firearms and arguments about whether the Second Amendment means we cannot keep firearms from sociopaths dangerously short of empathy
kbuschsays
kbuschsays
Lacking apparently a more interesting playground, conservatives playing “gotcha” have flooded this posting — which would otherwise be very interesting to discuss among those of us on center-left for whom this site would seem to be geared.
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On the center-left, we pretty much all believe that the government has some role in regulating firearms. Arguments about whether the Second Amendment means we can have regulations to keep firearms from sociopaths dangerously short of empathy are of interest to lawyers only.
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No, on the center-left, there are at least three things that are most more interesting to discuss:
As liberals, we care about outcomes. What do we make of the studies that seem to show reduced crime or violence with lighter gun control? Are they methodologically flawed? If so, how do we refute them in the marketplace of ideas? If not, what can we learn from such counter-intuitive results?
Liberals care a lot about liberty. That means liberty both from violence and to pursue interests. How can we articulate what we mean by liberty in a way that makes it quite clear where we stand on ownership of firearms?
Politically, this issue has been a loser for Democrats. That has to change in a big way because Democrats are making big gains in the mountain states, and, for that constituency, this isssue has greater importance than it does in the currently blue states. Republicans have coasted on the absurd lie that Democrats want to take away everyone’s guns. How do we turn that around?
I’m sure I missed something, but this thread has essentially been hijacked by our guests who don’t act like guests — and in a way that sheds very little useful light.
rajsays
Regarding (1), if you are referring to studies supposedly carried out by John Lot (and there is some dispute as to whether he actually carried out the studies that he claims to have carried out), then, yes, the studies’ methologies have been roundly criticized. I don’t remember the details, but Tim Lambert over at Deltoid has had a very long set of posts criticizing both Lot’s methology and his rather bizarre behavior when he has been criticized.
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Regarding (2), as I’ve written elsewhere, if the gun-owner-rights people want to stake their claim that gun control laws are bad on the basis that gun ownership helps protect them against crime, they should make their claim on that basis, instead of claiming to have a constitutional right to own a gun. That wasn’t what the plaintiffs did in the DC appeals court case–they staked their claim on a constitutional issue.
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BTW, I’ve read parts of the opinions, and the claims by some of the plaintiffs that the parts of the DC code that would require them to keep the arms in a disassembled state (when not in use, of course) or that it would forbid them from “carrying” arms from room to room in their house are violations of the 2d amendment, are absolutely bizarre. Actually, parts of the majority opinion are so bizarre that I could almost foresee a motion for an en banc hearing.
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Regarding (3), that’s why restrictions should be on the state or local level, not on the federal level. There are different conditions in different states. On the other hand, the gun lobby can be absolutely wacko. Recall the recent dust-up in which an Outdoor Life columnist criticized usage high-powered rifles to shoot prairie dogs for sport. The response of the gun lobby was so intense that he lost virtually all of his livelihood, despite the fact that he had been an ardent supporter of gun ownership rights for a number of years.
rajsays
…it’s one of the biggest pile of legal horse manure that I’ve seen in a long, long, time. From the opinion
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Appellants, six residents of the District, challenge D.C. Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code § 22-4504, which prohibits carrying a pistol without a license, (i) insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by
a trigger lock or similar device. Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon want to possess handguns in their respective homes (ii) for self-defense. Gillian St. Lawrence owns a registered shotgun, but wishes to keep it (iii) assembled and unhindered by a trigger lock or similar device. Finally, Dick Heller, who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wishes to possess one at his home. Heller applied for and was denied a registration certificate to own a handgun. (iv) The District, in refusing his request, explicitly relied
on D.C. Code § 7-2502.02(a)(4).
Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home.
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Indicia added.
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The court should have told them,
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(i) If and when DC actually prevents a gun owner from carrying a gun from room to room within his own house, then you might have standing to bring a case, but, until then, no. The proposed restriction is highly speculative.
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(ii) The introductory clause to the 2d amendment does not admit to the right conferred to be that of an individual right to self-defense, but a collective right regarding the militia*, and, regardless, the right is not that to own an arm, but a right to keep and bear an arm, with, presumably, the owner of the arm having the right to control its use. That last is what is obviously overlooked among the RKBA crowd.
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(iii) The 2d amendment says nothing about the right to keep and bear arms that are unhindered by restraints on their usage. Let’s get to the text here.
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(iv) Don’t know what this refers to.
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I see a motion for rehearing en banc.
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*the RKBA crowd essentially want to read the introductory clause, relating to the “well regulated militia” out of the constitution. A prime tenet of statutory interpretation (in this context, the constitution is a statute) is that every word has meaning, and every word has applicability. The RKBA crowd want to read the introductory clause out of the constitution. But, since it is the introductory clause, it probably should be afforded primacy in the determination of what the amendment is supposed to apply to. Congress could have left the introductory clause regarding the militia out of the amendment, but it chose not to.
We are beginning to see and hear restlessness from the loyal left over this inconvenient truth.
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In a now famous exercise, Neil Schulman asked Professor Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style. The Consensus. his opinion on the text of the 2nd Amendment.
Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field. He’s on the usage panel of the American Heritage Dictionary, and Merriam Webster’s Usage Dictionary frequently cites him as an expert. Copperud’s fifth book on usage, American Usage and Style: The Consensus, has been in continuous print since 1981, and is the winner of the Association of American Publisher’s Humanities Award.
Disagree if you will, but the good professor sounds like an unqualified expert to me. Copperud was asked to comment on the following specifics, and his responses are included herewith:
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(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to “a well-regulated militia”?
The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.
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(2) Is “the right of the people to keep and bear arms” granted by the words of the Second Amendment, or does the Second Amendment assume a pre-existing right of the people to keep and bear arms, and merely state that such right “shall not be infringed”?
The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
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(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia, is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement “the right of the people to keep and bear Arms, shall not be infringed” null and void?
No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.
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(4) Does the clause ‘A well-regulated Militia, being necessary to the security of a free State, ” grant a right to the government to place conditions on the “right of the people to keep and bear arms, ” or is such right deemed unconditional by the meaning of the entire sentence?
The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.
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(5) Which of the following does the phrase “well-regulated militia” mean: “well-equipped, ” “well-organized, ” “well-drilled, ” “well-educated, ” or “subject to regulations of a superior authority”?
The phrase means “subject to regulations of a superior authority;” this accords with the desire of the writers for civilian control over the military.
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(6) If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not take into account historical interpretations of the intents of the authors, unless those issues cannot be clearly separated.
To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: “Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.”
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(7) As a “scientific control” on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence: “A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.” My questions for the usage analysis of this sentence would be,
(A) Is the grammatical structure and usage of this sentence and the way the words modify each other identical to the Second Amendment’s sentence?; and
(B) Could this sentence be interpreted to restrict “the right of the people to keep and read Books” only to “a well-educated electorate” — for example, registered voters with a high-school diploma?
(A) Your “scientific control” sentence precisely parallels the amendment in grammatical structure.
(B) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.
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Well, Professor Copperud’s analysis is good enough for me. It is good enough for the D.C. Circuit Court. It is honest. It is the truth. It is rock-solid, copper-sheathed and inarguably undeniable. And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely.
The circuit court got this right. There is a fundamental right to own a gun. It’s plain and simple. This is a strong victory for the Constitution.
of rock-solid Constitutional scholarship.
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However did you Shepardize so quickly?
…the 2d amendment says nothing about ownership. It does say something about keeping and bearing but nothing about ownership.
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Don’t you know anything about RKBA (Right to Keep and Bear Arms)? (Yes, I know the lingo.) No “O” there, for Ownership.
Its actually pretty simple, lets look right at the text:
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Note that it does not say the right of the militia to keep and bear arms. Also note that there are no militias.
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Now, who are these people you may ask? Aren’t they the national guard or something? Lets see what the constution says:
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No, I dont think the whole “national guard has it covered” arguement really works in any way. You can’t just disregard a phrase: the right of the people to keep and bear arms – because you don’t agree with it.
my favorite is the last illustration. we should clip it out and run it with caption of “Even the NRA fears global warming.”
to make Katie Couric scowl. But surreal is right. I did get the feeling I was reading spiffed up skinhead propeganda. I’m sure it was no mistake that the “good guys” were always depicted as a white hetero family protected by the hubby.
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“Oh Spiff, I’m so afraid! Those brown people moved in next door.”
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“Don’t worry, Sally, I’ll protect you and little Johnny from the rapine hands of the niggerjewcommiefaggot!”
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BOOM! Thunk!
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“Spiiiifff?!!”
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“Call the ambulance Sally, there has been a misfire!” /caugh, groan, moan/
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“Hello? Is this Bigotville General? This is Sally. Spiff has
prematurely ejaculatedshot himself! Ambulance, please!! WHat’s that you say? EMTs Juan and Shaniqua are on ther way – Dr. Goldstein stands at the ready – with nurse Nelly Boy there to ably assist? Oh THANK YOU BG! God Bless America!!!” /relieved sobbing/to protect themselves from a tsunami….
… that they actually published that, for what its worth. Somebody leaked a copy that had been prepared to the press (probably giving it wider circulation than it may have ever gotten otherwise!)
If yes, then you are a member of the Massachusetts State Militia.
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Yep, thats right. We are minutemen.
I wonder. Is the MA state militia holding training sessions according to the discipline prescribed by Congress? If not, I guess the state has been derelict in its duties required by the federal constitution.
The very next section says that I am part of the unorganized militia which “shall not be subject to duty except in case of war, actual or threatened, invasion, the prevention of invasion, the suppression of riots, and the assisting of civil officers in the execution of the laws.” When called upon, I’ll serve, but I’m not holding my breadth waiting to be drafted by my selectmen.
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To go even more off topic here, I think my favorite law relating to the armed forces of the Commonwealth is that the US Postal Service has the right of way on roads and that the US Army and the Mass. militia must defer to them. Takes neither sleet nor snow to a whole new level, doesn’t it?
although, again, I would point out that the 2nd amendment doesnt grant arms to the militia, but to the people.
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Anyway, good thing the real minutemen didnt sit around with such cynical attitudes when we needed them!
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“Yea right, a militia! Like we’re going to overthrow the legitimate government of the largest empire on Earth over a tax on tea! Pshaw!”
….is conclusory:
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I would point out that the 2nd amendment doesn’t grant arms to the militia, but to the people.
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It is a reasonable interpretation, but not yet, as a Constitutional issue, settled in the manner you describe.
… in this case, anyway – I’ve been reading the decision and its quite thorough (and IMO convincing) in its treatment of who the people are.
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The dissenting opinion seems convioluted and weird to me, but then again each page is like 2 lines of text and all the rest footnotes..
when they actually, say, go to law school.
steverino the comic insult dog!
about the Second Amendment fetishists’ inability to muster any kind of serious debate.
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The “plain meaning” arguments are the saddest. If the Amendment’s meaning is so terribly obvious, why is their so little evidence that the original legislatures and citizens understood it that way? They seemed to have no compunction about forbidding firearm ownership among Catholics, servants, and blacks (both free and slave). Most of the surviving discussion about militias seem to be complaints about the pathetic state of the militiamen’s rusty guns.
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Second Amendment scholarship is a complex area. Unfortunately, it never seems to go anywhere but around in circles, probably because the NRA crowd can’t make any contributions more serious than cartoons.
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Sad.
Man, it sure is difficult to get substance out of your posts, so filled with melodrama as they are. But I think you may have tried to say something here:
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Wouldn’t you say the same thing about the other amendments then? Aren’t they all worthless if they weren’t granted to everyone at the outset?
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Personally I still put alot of stock in the constitution, but I realize that to others it is merely an obstacle.
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The court opinion in this case is filled with substantial reasoning and what appears to me to be sound logic. If you find it sad, pathetic, circular, etc then please do point out which parts – try to stick to the central issues if you dont mind.
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Throwing smoke about the NRA pamphlet is not going to help.
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A lie, of course, but no need to debate it when others can read. Your posts are the ones that consist entirely of snide quips and a tissue of assertions, such as:
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The circuit court may be right or wrong, but its opinion certainly does not remotely rely on a simple look at the text of the Second Amendment. Indeed, it seeks to develop a lexicon of language from looking at the rest of the document outside the Amendment.
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Various constitutional rights and protections were explicitly denied to Africans and to women by the language of the Constitution itself. Here, early legislatures seem to have happily trampled on the rights you assert were clear and explicit “right from the text” without a peep of protest.
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Translation: “I have utterly failed to prevail against others’ arguments, so I must contrive fake arguments to put into their mouths instead.”
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We are debating about what the Constitution says, not whether we are listening to it.
as usual, nothing but insults and “WRONG!”s with no backing.
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P1: worthless
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P2: “seeks to develop a lexicon of language…”
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if you try really hard you might be able to come up with a coherent point here, maybe you mean that a district court should be looking [not just at a “lexicon” of language but] at case history from this and other courts as well as applicable decisions from the supreme court, however small the application to this case might be… but then again, the court decision spent a great deal of time considering a multitude of related cases, more than just a “lexicon of language” to be sure. What is your point exactly? That the court considers more than just the text of the amendment? Of course they do. They did in this case. Notwithstanding a very large amount of this sort of thing, they ultimately relied on interpreting the language of the amendment itself, as, it seems to me, they should.
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P3: So is the first amendment a dead letter as well then? What are you saying, exactly?
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P4: if you would ever make an argument instead of just spewing high and mighty vitriol, proclaiming yourself above debate in nearly every case (or more accurately, my points as beneath debate with the likes of you) then maybe I wouldn’t have to guess at where you stand. If in fact you stand anyplace.
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that about sums it up.
…..from a circuit court of appeals hardly settles a constitutional issue, and it certainly has no effect in MA (1st circuit).
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This will not be settled until the SCOTUS weighs in. And I suspect that if they do it will be a 5/4 decision and as such still not all that settled.
…the federal constitution does not even presume that DC would have a militia.
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The federal constitution presumes (but does not require) that the states will have militias, and provides some federal regulation of them in Article I.
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NB: the National Guard is not the militia. The National Guard is a joint federal/state program covered by a separate provision of the federal constitution (the one that holds that the Congress can raise armies, etc.).
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I’ve gone through this ’round and ’round on too many right wing web sites to interest me any more, but what the “2d amendment absolutists” really want to do is to read the introductory clause regarding the “well-regulated militia” out of the constitution. As far as I’m concerned, it’s a crock–all words in the constitution should have effect–but nobody knows what the idiots on the Supreme Court might do.
sections four and ten make it is pretty clear that the National Guard is the organized militia of the Commonwealth. The rest of us compose the unorganized militia.
sections four and ten make it is pretty clear that the National Guard is the organized militia of the Commonwealth. The rest of us compose the unorganized militia.
…an organized militia and a disorganized–oops, unorganized militia. Either the state has a militia–subject to training prescribed by congress, or it doesn’t.
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I’m not exactly sure how more plainly I can say it. The national guard is not a militia. It is a joint federal/state army.
David wrote:
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So when a “right wing” justice strikes down a law based on what is actually written in the Constitution, he’s an activist.
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But when a “progessive” chief justice of the Supreme Judicial Court comes up with a convoluted argument to force the creation of a new law for same sex marriage, she is insigtful.
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I’m not quite getting your logic.
that Silberman is a conservative activist judge, just as Justice Thomas and, to a slightly lesser degree, Justice Scalia are. Similarly, the Warren Court was fairly activist on the liberal side. And I’ve never claimed that Goodridge was not an “activist” decision. “Activist” doesn’t mean “wrong,” necessarily.
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Don’t jump to conclusions.
1. Activist is certainly “wrong” for democracy – in that you replace legislation by elected bodies and democratic process with legislation by a cadre of appointed judges.
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2. This guy may be an activist or not, but I’ve seen nothing activist in this decision. Its all straight from the constitution:
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…
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its a good read
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You mean like interrupting the democratic process by striking down gun control legislation? Seems like you like THAT kind of activism.
then yes.
So you would like judges getting into the business of what weapons are acceptable to ban (say, nuclear weapons) and which are ones are not? Is a M16 rifle an “Arm” under the 2nd Amendment? Is a fully automatic pistol, as opposed to a semi-automatic pistol, an “Arm” that would be typically used in a militia?
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These are distictions legislative bodies should be making as part of the democratic process, not elderly judges setting forth long and largely pointless law review articles on the subject.
In this case the issue is a complete ban on gun ownership – not a judgement on which weapons are acceptable vs. unacceptable.
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Machine guns have been illegal since the ’30s and that was a legislative clarification that was upheld by the courts all the way to the top.
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In my personal view a proper standard should be that you can own whatever a standard soldier carries (m16 I guess) but the law is more restrictive, and I’m more or less OK with that.
It is a judgment on what weapons are acceptable vs. not acceptable. The decision pretty explictly gets into that discussion near the end of the opinion, when the question of whether the 2nd Amendment protects only those weapons that were around the time of the adoption of the Amendment comes up.
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The issue in this case was a regulation that was not explictly a complete ban on handgun ownership. So the question becomes: would a complete ban on M16s be OK under the Constitution? How about handguns? How about bazookas?
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Do you really want the courts to decide these questions, or a democratically-elected legislative authority?
Or sawed-off shotguns–the weapon at issue in US vs. Miller.
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It was fairly clear from the opinion in US vs. Miller that the Supreme Court was tying the claim to a 2d amendment right to “keep and bear” a weapon was whether or not the weapon was suitable for use in a militia. The opinion was cryptic, but that suggestion clearly came through.
You say:
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The opinion says:
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So much for your repeated claims of having read the decision.
you have marked a straight quote from the decision for deletion.
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I thought it was a model of Constitutional jurisprudence only a few comments ago?
Self-demolisher says:
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Self-demolisher backs this up by quoting one party (the one he likes, who gives him the best possible ammunition for his side):
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The Supreme Court ought to have a sign: “Your IQ must be this high to give your opinion on Constitutional law.”
that was the argument of the district, steverino the comic insult dog.
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Its true I should have said ban on handgun ownership, not ban on gun ownership. Someday you’ll learn to point out things like that without wild melodramatic conniptions.
self-demolisher’s subject:
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self-demolisher’s text:
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Which completely wipes out your argument against Hoyapaul:
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because the DC law neither banned all guns, nor banned ownership of handguns, but severely restricted it to the point where they could not be operational. In fact, the case hinged on a legislative “judgement” of which weapons are acceptable, and which are not.
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Anyway, you’ve wasted enough of our time in this pointless argument. It’s clear you rely on “gut feel” to tell you what the second amendment says, then just randomly clip quotes to support your intuition, without actually reading them. In such a situation, who cares what your intuition says?
Steverino the comic insult dog, you really should learn to admit when you are wrong. Take an example from my post: I admitted that I should have said ban on handguns, not on all guns. Yes, this undercuts my argument to some degree about total ban vs. judgement on what guns you can own. But make no mistake, DC is not issuing any new permits for handguns – disassembled or not – unless you are a retired police officer. Understand?
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OK now what did you get wrong? Aside from your endless hyperbolic conjecture about me, you asserted that I took the “handguns are banned” position from my own side, where I did not. It came from the district. This marks the third time I’ve pointed it out to you. Even if you won’t admit that you got it wrong, hopefully you have learned by now.
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Now, if I were Steverino the insult comic dog I’d have said something like:
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“Who let this troll retard on the board anyway, what a waste of all of our time reading tripe from this low-iq talking points regurgitator who can’t even write a single post of his own much less control his hissy fits or at a minimum, read the case correctly not to mention figure out his own folly when its pointed out to him three times in a row. Fool. You really should read daily kos more. Really, You should.”
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Productive? Perhaps not. Take a lesson Steve.
self-demolisher said, cryptically:
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Perhaps you are referring to the fact that I pointed out to you that no one in the case, including those with whom you say you agree, ever took the position that the DC legislation banned all guns.
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But who knows?
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So you have finally conceded error on your central point. If you want, you can continue to argue endlessly based on misreading, not thinking, and a misplaced reflexive desire to “win,” until you are finally forced to concede every other point, too. But I think there are probably better uses of my time, and yours.
read carefully:
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check out that link.
an “activist” is a judge whose opinions you disagree with.
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There is always room to debate whether any given opinion is supported by statute and precendence.
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However, the claim that all law in the United States originates exclusively with legislative bodies, and never with courts, reveals a shocking, no, embarassing ignorance of the very foundations of Anglo-American jurisprudence.
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I commend you to Blackstone, for starters.
…the possibility of Supreme Court review in light of a “conflict among circuits.”
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I don’t know the details of the other cases that you are referring to that you believe might create the “conflict,” but recognize that if they relate to state gun control laws, there is a fundamental distinction between those and DC. Under the constitution, the federal government has plenary powers over DC, the same as in the territories, forts, etc. That is not true regarding the states. The 2d amendment has clearly been held to be a limitation on federal government powers. The federal government cannot devolve powers (such as matters of gun control) to the DC government that it (the federal government) does not have.
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So, this case may be in stark contrast to the cases in the other states for that reason.
Right.
…whether or not I read the decision, the fact is that the distinction I made between DC and the states still holds. If you notice, I was not critiquing the decision, I was suggesting a reason why there might not be the conflict among circuits that had been suggested in the post.
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Everything in the Bill of Rights was originally written that way. However, most of them have been applied to the states through the 14th amendment. What makes you think that the 2nd won’t be applied to states as well? After all the 1st is pretty clear in that “Congress shall make no law…” but its been applied to the states.
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I do remember from a ConLaw class a few years ago that the 2nd has not yet been applied.
The reason really should be obvious from the language of the 2d amendment.
I know it hasn’t yet. I’m asking what makes the 2nd special so that it won’t ever be.
…the part relating to the militia, and then read the parts of Article I relating to the militia. It should be fairly obvious.
amendment is just ambiguous enough for the Supreme Court to rule either way, although I suspect the current Court would rule to affirm the appeals court decision.
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As far as judicial activism is concerned, I do not embrace the concept. Judges are charged with the duty of interpreting the Constitution and presiding over the development of the common law. It is their job to help decide what the law actually is. I don’t think it does any good to throw this term around like it actually means something other than “I don’t agree with this decision.”
the bumper stickers that read, “When Guns Are Outlawed, Only Outlaws Will Have Guns. How simplistic, how absurd.
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Now I see how it is turning true. Here we are in Massachusetts, home of the most stringent guns laws in the country and where men, women and children are being shot down in the streets every day. Are those shooters are really worried about having an illegal firearm?
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The police are shown to be impotent, opting to arrest a seagull killer or a couple lite-brite distrubutors to divert attention away from people murders. Maybe it is time to rethink the gun laws. The politicians arguments for gun control making the cities safer are proved wrong.
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(No, I don’t have a firearm and don’t plan to get one.)
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Uh, your reasoning seems a bit, uh, absent from your comment. What makes you think that there wouldn’t be way more guns and more shootings if we didn’t have the existing laws?
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Improving the state economy, developing jobs that pay a living wage, quality public k-12 education, affordable state college tuition and fees, root causes of illegal drug use and sales, drug cartels, deeply embedded racism in individuals and in society…
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Tackling these issues holds more promise to reduce urban violence than promoting a gun free for all, I’d wager (just a figure of speech for me; I don’t gamble and stringently oppose that regressive tact to bolster the state budget coffers, in case anyone was wondering).
“Rethinking gun laws”? What right does she have to rethink plans proposed for many years by responsible leaders? Mae should think about getting counseling. People like that endanger society. People like that would put a gun in the hands of everyone.
…is a separate question from whether or not gun control laws violate the 2d amendment.
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I wish that those who advocate against gun control laws would recognize that distinction. They should make their case that particular gun control laws should be repealed or proposed laws not be enacted because they are unwise for this, that, or the other reason, and not go through this folderol that they violate the 2d amendment.
but if this case does end up being heard by the Supreme Court I fully expect–and look forward to–the NRA pamphlet and its stimulating visuals being used as evidence (by which side?…. both? and how might that play out?… esp. if the timing of the case is during the Pres. Race). What a country we’ve become.
…but a few years ago I was informed of a case that the gun-rights advocates (to use an emotive-neutral phrase) that was denied cert. I forget the caption of that case, but it appeared that the facts were more conducive to a decision on the 2d amendment than this one, particularly given the reservations that I have described.
Is the Federalist Society counting votes on SCOTUS? Is that why this and the assault on Habeas Corpus is happening all of a sudden?
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Or is this just their last shot at rewriting the Constitution while they still have a chance?
This NRA pamphlet truly is bizarre, and thanks David for pointing this out.
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Please:
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This is the type of hyper-ideological pap that I simply cannot stand. Let’s wrap hyperbole and paranoia together and we’ll get the modern gun-rights movement. Add a dash of black helicopers and we get complete insanity, i.e. the National Rifle Association.
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As far as the case goes, I’d be quite surprised if the Supremes eventually upheld this decision, but I suppose you never know. If anyone ever needs confirmation that right-wing activism exists, they can check out Judge Silberman’s line of reasoning (as well as Scalia’s and Thomas’s reasoning in affirmative action cases).
David, that pamphlet needs to be read by as many people as possible. You should really give it its own front-page treatment. Amazing.
Lacking apparently a more interesting playground, we seem to be swimming in conservatives playing “gotcha” on this posting — which would otherwise be very interesting to discuss among the center-left. On the center-left, we pretty much all believe that the government has some role in regulating firearms and arguments about whether the Second Amendment means we cannot keep firearms from sociopaths dangerously short of empathy
Lacking apparently a more interesting playground, conservatives playing “gotcha” have flooded this posting — which would otherwise be very interesting to discuss among those of us on center-left for whom this site would seem to be geared.
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On the center-left, we pretty much all believe that the government has some role in regulating firearms. Arguments about whether the Second Amendment means we can have regulations to keep firearms from sociopaths dangerously short of empathy are of interest to lawyers only.
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No, on the center-left, there are at least three things that are most more interesting to discuss:
I’m sure I missed something, but this thread has essentially been hijacked by our guests who don’t act like guests — and in a way that sheds very little useful light.
Regarding (1), if you are referring to studies supposedly carried out by John Lot (and there is some dispute as to whether he actually carried out the studies that he claims to have carried out), then, yes, the studies’ methologies have been roundly criticized. I don’t remember the details, but Tim Lambert over at Deltoid has had a very long set of posts criticizing both Lot’s methology and his rather bizarre behavior when he has been criticized.
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Regarding (2), as I’ve written elsewhere, if the gun-owner-rights people want to stake their claim that gun control laws are bad on the basis that gun ownership helps protect them against crime, they should make their claim on that basis, instead of claiming to have a constitutional right to own a gun. That wasn’t what the plaintiffs did in the DC appeals court case–they staked their claim on a constitutional issue.
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BTW, I’ve read parts of the opinions, and the claims by some of the plaintiffs that the parts of the DC code that would require them to keep the arms in a disassembled state (when not in use, of course) or that it would forbid them from “carrying” arms from room to room in their house are violations of the 2d amendment, are absolutely bizarre. Actually, parts of the majority opinion are so bizarre that I could almost foresee a motion for an en banc hearing.
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Regarding (3), that’s why restrictions should be on the state or local level, not on the federal level. There are different conditions in different states. On the other hand, the gun lobby can be absolutely wacko. Recall the recent dust-up in which an Outdoor Life columnist criticized usage high-powered rifles to shoot prairie dogs for sport. The response of the gun lobby was so intense that he lost virtually all of his livelihood, despite the fact that he had been an ardent supporter of gun ownership rights for a number of years.
…it’s one of the biggest pile of legal horse manure that I’ve seen in a long, long, time. From the opinion
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Indicia added.
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The court should have told them,
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(i) If and when DC actually prevents a gun owner from carrying a gun from room to room within his own house, then you might have standing to bring a case, but, until then, no. The proposed restriction is highly speculative.
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(ii) The introductory clause to the 2d amendment does not admit to the right conferred to be that of an individual right to self-defense, but a collective right regarding the militia*, and, regardless, the right is not that to own an arm, but a right to keep and bear an arm, with, presumably, the owner of the arm having the right to control its use. That last is what is obviously overlooked among the RKBA crowd.
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(iii) The 2d amendment says nothing about the right to keep and bear arms that are unhindered by restraints on their usage. Let’s get to the text here.
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(iv) Don’t know what this refers to.
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I see a motion for rehearing en banc.
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*the RKBA crowd essentially want to read the introductory clause, relating to the “well regulated militia” out of the constitution. A prime tenet of statutory interpretation (in this context, the constitution is a statute) is that every word has meaning, and every word has applicability. The RKBA crowd want to read the introductory clause out of the constitution. But, since it is the introductory clause, it probably should be afforded primacy in the determination of what the amendment is supposed to apply to. Congress could have left the introductory clause regarding the militia out of the amendment, but it chose not to.
We are beginning to see and hear restlessness from the loyal left over this inconvenient truth.
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In a now famous exercise, Neil Schulman asked Professor Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style. The Consensus. his opinion on the text of the 2nd Amendment.
Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field. He’s on the usage panel of the American Heritage Dictionary, and Merriam Webster’s Usage Dictionary frequently cites him as an expert. Copperud’s fifth book on usage, American Usage and Style: The Consensus, has been in continuous print since 1981, and is the winner of the Association of American Publisher’s Humanities Award.
Disagree if you will, but the good professor sounds like an unqualified expert to me. Copperud was asked to comment on the following specifics, and his responses are included herewith:
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(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to “a well-regulated militia”?
The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.
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(2) Is “the right of the people to keep and bear arms” granted by the words of the Second Amendment, or does the Second Amendment assume a pre-existing right of the people to keep and bear arms, and merely state that such right “shall not be infringed”?
The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
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(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia, is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement “the right of the people to keep and bear Arms, shall not be infringed” null and void?
No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.
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(4) Does the clause ‘A well-regulated Militia, being necessary to the security of a free State, ” grant a right to the government to place conditions on the “right of the people to keep and bear arms, ” or is such right deemed unconditional by the meaning of the entire sentence?
The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.
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(5) Which of the following does the phrase “well-regulated militia” mean: “well-equipped, ” “well-organized, ” “well-drilled, ” “well-educated, ” or “subject to regulations of a superior authority”?
The phrase means “subject to regulations of a superior authority;” this accords with the desire of the writers for civilian control over the military.
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(6) If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not take into account historical interpretations of the intents of the authors, unless those issues cannot be clearly separated.
To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: “Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.”
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(7) As a “scientific control” on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence: “A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.” My questions for the usage analysis of this sentence would be,
(A) Is the grammatical structure and usage of this sentence and the way the words modify each other identical to the Second Amendment’s sentence?; and
(B) Could this sentence be interpreted to restrict “the right of the people to keep and read Books” only to “a well-educated electorate” — for example, registered voters with a high-school diploma?
(A) Your “scientific control” sentence precisely parallels the amendment in grammatical structure.
(B) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.
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Well, Professor Copperud’s analysis is good enough for me. It is good enough for the D.C. Circuit Court. It is honest. It is the truth. It is rock-solid, copper-sheathed and inarguably undeniable. And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely.