SCOTUS and the 2nd Amendment

"The Supreme Court appears willing to say that the Constitution's right to possess guns limits state and local regulation of firearms. But the justices also suggested that some gun control measures might not be affected.

The court heard arguments Tuesday in a case that challenges handgun bans in the Chicago area. The suit also asks the high court to extend to state and local jurisdictions the sweep of its 2008 decision striking down a gun ban in the federal enclave of Washington, D.C."  AP News

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Well, here we go again on the guns.  SCOTUS will, IMO, rule that the 2nd Amendment severely restricts the ability of state governments to limit gun rights and that the 2nd Amendment applies to all governments within the US.  This is a major constitutional skirmish in the centuries old struggle over whether or not the union of the states makes them administrative territories or if they remain sovereign to some extent.  The Civil War's outcome did not settle this issue.  It did not because the victorious states did not wish the implication of Northern victory to be manifest in their own territories.  In that context, re-admission of the seceded states ensured that the contest over centralized "national" government would continue indefinitely, and, it has.

The conservatives on the court are of mixed feelings about this gun control case.  On the one hand they would like to affirm the individual's 2nd Amendment rights across the country but on the other hand they are also inclined towards the restriction of federal government power, a problem.

The outcome will probably be an extension of this particular amendment into state government while at the same time the court finds some way to enable the states to restrict gun ownership by lunatics, felons, etc.  It will be interesting to see how that is done.

This post will be the occasion for more expressions of incredulity on the part of anti-gun people in the US (mostly urban) and foreigners at the desire and insistence of many Americans to keep their weapons.  Ho hum.

I am reminded of the three days I once spent in Ottawa on business in the company of a Canadian senator (very much a political "hack") who lectured me incessantly on this issue in spite of my disinterest in his opinion.  He finally got to the point of telling me that it was incredible that "a man of my intelligence couldn't see" that he was right about this.  He was mistaken.  I am not intelligent enough to see his point or agree with it.  pl

 

Comments

[Adam L Silverman]

Sir,

I think, if the Court was smart, they would simply go with the default position that proceeded from two post Civil War rulings - Cruikshank V US and Presser V Illinois. If I recall correctly (and if we have a lawyer who is part of the SST community, please feel free to set me straight) both cases dealt with members of KKK klaverns assertion that they had a 2nd Amendment right to keep and bear arms. When the local authorities objected, they claimed they were "well regulated militias" as they met at regular intervals and had identifiable garb (hoods and robes). In both of those cases that Court ruled the Klan is not a well regulated militia, that the right to keep and bear arms is related to being in such, that such a militia is one that is under the command authority of the State or Territorial Governor, or in the case of national extremis the President, but that because there is no explicit prohibition on keeping and bearing arms indicated for those not in a militia, there was an implicit 2nd Amendment right to do so. They then ruled that as a result of these findings that there is, at least, an implicit guarantee to individuals to keep and bear arms, but that local, state, and federal governments could place reasonable restrictions and regulations on the right.

If they did this, which wouldn't make the NRA happy, as they've been fighting to have Cruikshank and Presser overturned for decades, they could have their cake and eat it too. They'd reaffirm the individual right to keep and bear arms and they'd reaffirm that states and localities could reasonably control this within their jurisdictions. My guess is that they'll just federalize it the way earlier courts did for the other parts of the Bill of Rights between the 1920s and 1960s.

[walrus]

I hope the Supreme Court finds a creative way to overturn the bans.

Having recently been the subject of an attempted burglary, I'm warming to the idea that gun bans of any sort are, on balance, counter-productive because they give criminals a sense of security regarding what they will not encounter.

The Australian experience has shown that making gun ownership difficult doesn't really change much except the type of murder or suicide weapon, and perhaps limit the possibility of Columbine style events. The country is still awash with illegal hand guns. Knife attacks are now an epidemic.

In the fullness of time, I think we subjects of the Crown may again receive unfettered access to firearms. Meanwhile we remain secretly envious of the American right to bear arms and must content ourselves with convincing anyone who will listen that it is a bad idea.

[Howler]

Interesting indeed. Since the "late unpleasantness" of 1861-65, the court has one by one extended the protection of the Bill of Rights beyond Federal jurisdictions to the states. I suspect one more increment is in order. Prepare for howls of protest.

[FDRDemocrat]

The law of unintended consequences will blossom in the wake of any SCOTUS ruling that the 2d Amendment constrains local jurisdictions ability to pass gun control laws. As the colonel points out, while many NRA supporters will cheer, of course this isn't the only amendment to the Constitution. Many other critters will take advantage of the 2d Amendment bull ramming the barn door open and follow happily through. To avoid this, SCOTUS would have to make some sort of tortured argument that the 2d Amendment is special, first among equals of the Amendments, etc. which I don't think will hold up very long.

Nationally, the gun control debate has been at a standstill for many decades. Each side argues fervently through anecdotes. For every homeowner who righteously blasts an intruder with his double-aught, the other side waves an example of garden variety disputes that turn deadly because one or another person has a gun handy.

My personal sense is that the whole "guns make you safer" argument has to be weighed in the balance against other societal interests. Reasonable people on both sides can find an accomodation.

Recall the public rallies a few months back where a 2d Amendment supporter walked around outside a venue President Obama was speaking at with a assault rifle strapped to his back. Or how people react when a bunch of citizens with guns strapped to their hips walk into family restaurants. It is legal for all this under our laws. But most people have a nagging sense of unease as to whether this is the best we can do as a society.

[greg0]

Gun ownership is pretty much guaranteed here in Oregon already by the State Constitution, Article I, Section 27.
Personally, I find a shotgun useful for varmints. Last thing I shot was a juvenile skunk who wouldn't leave after spraying the dog. (We didn't eat the skunk.)

[wcw]

You can be urban, hate gun violence and not hate the second amendment. Then again, some of us have lived in Switzerland.

[Nancy K]

If people want to own guns for hunting or protection fine. I do live in an urban area so there isn't many critters I can or would want to hunt. We do own a gun but have never had to use it for protection.
I draw the line however at arsenals and guns more powerful than even the police of a major city have.
I worry about nut jobs who decide that it is time for the revolution or for the nut jobs children who might feel it is time take their guns to school and shoot everyone who does not appreciate how special they are.

[505thPIR]

I have lived extensively in both the US and Canada. Gun control, speed limits on highways and fire codes are all restrictions on our rights and freedoms. All of these things mitigate carnage but do not eliminate it. The degree to which any such things are applied or become necessary at some level has to be a calculation of risk and reason.

"Risk and reason" seem to be relative to the person in front of and behind the gun. If I were a coffee can in rural PA I'd surely have a different argument to present than if I were the mother of a Chicago teen slaughtered by a handgun toting "citizen" who doesn't have the slightest interest in keeping Federal tyranny at bay. Then again, if I were a person who reasonably and rationally feared losing his liberties by force from a governing body with no interest in upholding or protecting them......well I live in Canada and would probably be breaking a law/come under direct suspicion of intending to do so for intimating at the rest of that sentence...

Seriously, I own no weapon and feel no impending doom in terms of loss of liberty. Hunting and target shooting is pretty much universally available to all. The laws here are just fine for the most part.

Should a liberty crushing dictatorship ever arise here however...options would be very limited.

[R Whitman]

As an owner of several firearms and the son of a firearms dealer , I have no problem with gun ownership by citizens. I do have a problem with the unrestricted sale of weapons to people who do not understand their safe use.

I would feel more comfortable if every owner/purchaser passed a safety course administered by the National Rifle Assn.

Too many anti-gun people consider the NRA to be part of the problem. The NRA should be part of the solution to the problem of firearms safety. They know more about it than anyone else.

[Arun]

If all these people really believed in keeping federal powers at bay, then where is their protest at the surveillance that should have been deemed illegal, the breaking of FISA, and so on? Why do they keep calling the President their Commander-in-Chief? A free people have no C-in-Cs.

Anyway, if it is a human right to have guns, then trying to deprive the Taliban of their guns is the violation of a human right.

[Patrick Lang]

Arun

Ah. You see my problem with them. You are quite right about the CinC thing. The president is CinC of the armed forces, not the country. pl

[SubKommander Dred]

Pat:
I like the 2nd ammendment. In fact, I like all of them. And I have no problems with someone wanting to own firearms for hunting, sport shooting or personal protection. Indeed, I happen to own a shotgun and a several handguns, which, when I have a few extra bucks to spend, take to the range and go through several boxes of bullets up at Clark Brothers in Warrenton. However, the problem I have with a number of folks who view the 2nd ammendment as sacrosanct to the exclusion of all others is the outright fetishization of guns that a vocal minority of the population seemed to have adopted. If I can borrow an example from the earlier thread regarding the Tea Party's, at some of those protests last year, some individuals openly displayed handguns and assault weapons as a show of...well, I'm not exactly sure what. I mean, I've been going to demonstrations since I was a young punk in high school (growing up in the DC area, God knows there were plenty to choose from) and never in all my protesting, dissenting years have I ever seen folks (other than the police) brandish firearms. In the same vein, a recent story about Starbucks allowing people to openly carry firearms in their stores also comes to mind. And when I see men (yes, it's always men) engage in this kind of behavior, I can't help but think they are trying to make up for something that is lacking. Perhaps the Viagra isn't working or some such thing. All these guys with images of Dirty Harry or Travis Bickle running about in their heads is probably not a good thing. I've said it before and I'll say it again;
One of the the problems with our grand republic is not there are too many guns, but that there are way too few brains.

Pete Deer

[HJFJR]

Pat please post this, I accidentally hit send on the previous post. Here is the corrected version.

Pat,

Let me offer an observation. I believe you are correct that the Supreme Court will incorporate the 2nd Amendment through the 14th Amendment as applying to the States. I also believe they will create a gordian knot guaranteed to keep lawyers employed by allowing the states some restrictions. While many believe that the 1st Amendment is absolute, in fact, in many aspect of that Amendment the Supreme Court has allowed some abridgment. As a result of the desire of the Nazi Party to march in Skokie Ill the Supreme Court issued an opinion that while a march could not be banned, the City of Skokie could establish some reasonable restriction to wit the Time, Manner, and Place of the march and assembly. Likewise in 4th Amendment Cases the Supreme Court has allowed some leeway for the police in obtaining a warrant. I mention both of these as example of how the Supreme Court may establish criteria for some regulation. In the DC v. Heller case the Supreme Court stated that the DC could establish some requirement for gun ownership.

As a gun owner and student of the Constitution I am always amazed as those on both sides of the argument who do not understand that one can not pick and choose which fundamental rights are important. By my way of thinking, Mr. Madison would not have included gun ownership in his draft of the Bill of Rights if he did not believe it was essential to the liberty of the people.

[Patrick Lang]

Pete

IMO. You are too dismissive of these people. Their fears and anxieties have merit. Their conceptions of solutions are uninformed. pl

[SubKommander Dred]

Pat:
On the contrary, I understand they have fear and anxiety, and why they are angry. There are a lot of things I'm quite angry about as well. I share many of the the Tea Partiers concerns about the economy and the wars in Iraq and Afghanistan, about our incredible deficit spending as well as the shrinking of the middle class. I am not dismissive of them at all. They bought into a vision of the invisible hand of the market wisely guiding the course of the economy, and it was a lie. They were told the country had to go to war in Iraq to defeat terrorism, and it was a lie. They believed that real estate always goes up, and that turned out to be a lie as well. Like Johnny Rotten said, "Have you ever felt like ya been cheated?" However, these folks are already forming a Dolchstoßlegende of their own and I fear that the introduction of firearms into a political protest seems like a needless escalation to prove some kind of point. The last thing I want is some kind of Freeikorps rolling through town. In Venezuela, when they have protests gun battles have been known to break out between the various political factions. So, when I see guns at demonstrations, you could see why I might get a little worried.
And you are also quite right, in that their conceptions of solutions are uninformed. But, how to inform someone who believes, among other things, that the Illuminati, the Masons, the Jews and the Catholics have been secretly bringing about a One World Government to be run by that well known communist, Barack Obama? I am using an extreme example, but the Paraniod Style is quite alive in this country. And my comment about the guns and brains thing still goes.

Pete Deer

[optimax]

Some of the Founders debated making every male of a certain age serve in the militia and own a servicable firearm, like Switzerland today. They even debated if Quakers were to be exempt from this requirement. Half-a-century ago kids in the country used to take small bore rifles and shotguns to school so they could bag small game on the way home for dinner. Shooting their teacher or classmates never crossed their minds.
I do not believe in restricting the rights of everybody because a few unhinged individuals have no respect for the lives of others or because a small group of terrorists want to advertise their cause. The question then is how do you keep guns out of the hands of "lunatics, felons, etc."? And what in our culture promotes gun violence, or violence in general? What has changed us?

[al]

I started hunting with a gun in 1955 (age 12) and prior to that carried a BB gun beside my hunting father who taught me gun safety. Around 1980 I sent back my NRA membership when that "extreme" organization fought the ban on teflon bullets--since then have continued to see the NRA as maintaining extreme positions on gun control laws. For those that are interested in "home protection" a hand gun is far less protection then a 12 ga shotgun--something about that big hole in the barrel pointed at an unwanted face and the sound of a shell racking into the chamber, also much more accurated if needed to be fired with that big pattern of 000 buck!

[curious]

I don't think founding father was thinking about high caliber automatic weapons or 200 pound car bomb when they wrote down "the right of the people to keep and bear Arms". And those are standard militia weapons these days. I bet their concept was "okay, a group of people with weapon will ultimately keeps thing in check in the event of totalitarian states. An armed militia couldn't possibly be that bad. (too lazy to scan & verify the federalist papers)

Cutting edge firing rate back then was 4 bullets per minutes, not 40 per second. I doubt the envision a prsonal weapon with blast radius of 200+ feet.

My question to founding fathers probably would be: Why on earth did you put that in the constitution if you trust democracy/the system being set up as good enough to resolve tyranny and internal power struggle? (I presume that was what they meant by "free state". National defense scheme was already covered in arm force legislation.)

It is also fairly interesting that the british colonial did try to disarm religious wackos in the new world. (obviously it's an old problem and won't go away anytime soon)

this whole thing is going to get very interesting when small and precise ballistic rocket arrive. (your personal ICBM that can blow up small vehicles from half continent away.) Then a small armed militia really can bring down the entire country.

Tho' Goldman sachs type of organization is already good enough to bring down a medium size nation. So defending "free state" using arm is kinda moot.

[William R. Cumming]

Actually Pat a brilliant post and some brilliant comments including Dr. Silverman's! Unfortuantely, the current SCOTUS is truly unwilling to do the hard work of developing a reasoned opinon on guns, gun control, and the precedents of SCOTUS itself.
I take a different cut because I believe that the right to own a gun, whether or not exercised, is not an absolute right but a privelege. Otherwise convicted federal felons could own firearms. Guns are correctly subject to some restrictions and like other hazardous activities should be liscensed and appropriate education on handling makes great sense. We recently have a change in law impact national parks and now concealed weapons are authorized for all entering national parks. Hey the illegal drugs growing in national parks and national forests is currently astounding. I have at least 1/2 a dozen friends owning many many guns. Some are collectors some are not or at least unwilling to recognize that status. But you can be sure that the premise that the "Bad" guys don't have easy access to firepower is surely as false as the fact that a drug user cannot be elected President. Unfortunately, the "Cold Dead Hand(s)" are usually victims not owners.

[Andy]

Pete Dreer,

Judging from what I've read it appears to me the open display of firearms is primarily intended as an exercise of constitutional rights. While I can certainly see that many people view the open display of firearms as some kind of threat, real or implied, for these people guns aren't viewed as intrinsically threatening objects of violence.

[Patrick Lang]

curious

Check Federalist #46 written by Madison. it specifies that an armed citizenry and organized militia will prevent the emergence of federal tyranny. pl

[Shrike58]

Ah, but an organized militia does suggest state regulation, which brings us all away around to the beginning of the arguement again.

For awhile my model on reform has been that of flight licenses, in which a high level of certification is needed before you can operate. Criminals will get weapons, there's not much you can do about that. On the other hand, the people who want to buy a gun out of some sense of ill ease need to be discouraged unless they're really serious about it.

As for the folks obsessed about concealed carrying, I'm sorry but too many of these people strike me as being just the sort of hot head who you would least like to see armed in public.

[geos]

Check Federalist #46 written by Madison. it specifies that an armed citizenry and organized militia will prevent the emergence of federal tyranny. pl

It seems to me that recent events in Iraq illustrate the effectiveness of having an AK-47 in every home against the full power of the US government. However, it did make it easier to shoot your neighbors en mass...

If you are looking to refresh the tree of liberty, the 2nd Amendment ought to apply to MANPADS and C4... or at least artillery shells. Surely, these are necessary for a well-regulated militia these days? Or maybe the 2nd amendment should only cover "black powder" firearms.

I should think this point is rather obvious and correspondingly the NRA seems more concerned with problem neighbors than tyranny.

I think the (still) creeping cold war "nationalization" of the state "militias" and corresponding impulse to employ the regular army in jobs typically reserved for the guard (or law enforcement) is a far greater threat to liberty than the so far mild restrictions on individual gun ownership. But, how do you challenge the "national security state" in Federal court?

[wsam]

Canada has tons of guns. Rifles mainly. For hunting. Handguns are harder to obtain legally.

I'm not anti-gun but, apparently, 80% of the guns used in Canadian crimes, mainly handguns, are smuggled from the US.

The culture of guns in the US is not likely to change, regardless of legal arguments. I understand that.

But. The gun culture in the US hurts us in Canada.

Here is how it works. Our criminals send you marijuana and your criminals send us guns and cocaine through Mexico.

[SubKommander Dred]

Andy;
There are proper places to openly display firearms (gun shows, museum collections {the Smithsonian has quite the rifle and assault weapon inventory}, or the gun range). Bringing your guns to town, like the Johnny Cash song, on the other hand, seems like a really bad idea.

Pete Deer
(that's spelled like the animal, not the tractor).