Of course, like any right, there must be limits. Fully automatic weapons, hand-grenades, Battle ships, fighter aircraft, and biological, chemical, and nuclear weapons cannot be allowed to proliferate. I personally like the idea that one of the basic ideas of the Second Amendment is to ensure the people have the right to weapons of coercive force in order to resist an oppressive government – but I don’t think that idea is actually represented by language in the Constitution or the Bill of Rights. In fact, the Constitution does affirm that the people have the right to peacefully dissolve the Constitution, so I think that speaks loads to that concept.

Simply stated, the Bill of Rights says the Federal Government has no right to prevent the public from owning and carrying around Bowie knives, swords, clubs, mace, pepper spray, stun guns, tazers, handguns, shotguns, and rifles. Common sense dictates that extraordinarily powerful or hazardous weapons could and should be restricted. It doesn’t prevent the individual states from doing so, nor does it relieve any person from responsibility for his/her actions.

I do worry. The too are the Times That Try Mens’ Souls. Good time to stock up onm ammo and magazines too.

I do worry. The too are the Times That Try Mens’ Souls. Good time to stock up onm ammo and magazines too.

I do worry. The too are the Times That Try Mens’ Souls. Good time to stock up onm ammo and magazines too.

“Paragraph VIII. Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”

That is, if we find a right to bear arms for individual defense in Blackstone, and in Locke, and in the 1689 (English) Bill of Rights, then we must fairly conclude that it is a right of the people, as understood by the Framers, unless we have specific positive evidence to the contrary. If said right is not included in the Second Amendment, that doesn’t matter; the Ninth exists to preserve any rights omitted from enumeration.

Accordingly, we can ignore the entire Second Amendment and still find individuals have a right to “have arms for their defence suitable to their conditions”.

Regarding what level of scrutiny to apply, I was thinking last night that two different standards of review could be applied for the rights to “keep” and “bear” arms? The District and its allies argue for a “collective right” by focusing on the militia in prefatory clause and the military connotation of the term “bear arms,” while Heller emphasizes the plain language of the operative clause and uses “bear” as a synonym for “carry.” The DOJ tries to split the difference, by recognizing an individual right but applying such a low level of scrutiny that the right could be regulated into extinction.

Perhaps strict scrutiny could be applied to the right to “keep” arms. Those not under disability would be able to keep any “arms” (“part of the ordinary military equipment” – rifles, carbines, pistols & shotguns, per Miller and the court of appeals decision in Heller) they please, in any condition they desire, in their home. This would be consistent with not only the wording of the second amendment, but with the general respect in our society and legal system for a person to do what he pleases in his own home without state interference (e.g. the 3rd and 4th amendment, the penumbra’s right of privacy, Kyllo, etc.). This also comports with common sense, since I can have all the illegal guns I want in my basement and the government will never know about it until the firearms leave my house or I give them a reason to search my home. The government’s archaic interest in having an armed body of citizens enrolled for military discipline, bearing arms supplied by themselves (as described in Miller), is thus protected, as is the ability of the people to overthrow a tyrannical government or resist a military coup.

A lower standard of review, allowing reasonable regulations, could be applied to the right to “bear” arms. Justifying this lower standard would be the military service implications in the word “bear,” the fact that the “firm but also bright” line at the “entrance to the house” has been crossed (from Kyllo), and the fact that once the guns leave the home they will obviously have a greater impact on other people. The carrying of bowie knives could therefore be prohibited, concealed or open carry could be regulated, the local “patriot” militia could not drill in the streets of Chicago, and brandishing could be made illegal. I don’t know exactly what level of scrutiny would be appropriate, but the beauty of this approach is that the court does not have to make that decision. Heller is really only about the right of individuals to “keep” arms (and in what condition they can be kept). Like the incorporation of the 2nd amendment into the 14th amendment, the right to “bear” arms could be left to another case and day.

From my viewpoint, I think there is no more point to regulating the bearing of arms than the keeping of them, as it is perfectly legal here to openly carry a machinegun around town and nobody does it. People just have too much sense. But perhaps people have less sense in other places. Almost all of the regulation of “bearing” is done by the states and I trust the good people of my state to be reasonable in that regard; it is the federal control of “keeping” that makes me uneasy.

Presumably, a “well-regulated” militia is one that is prohibited from using firearms to commit crimes. DC Code Section 7-2502.13(a) recognizes a limited right to “possess and use a self-defense spray in the exercise of reasonable force in defense of the person or the person’s property.” Would the Second Amendment prohibit DC from passing a law forbidding the use of firearms for self-defense? That’s a question for another day.

I think you may be reading too much into the Court’s certiorari grant. I don’t think the court needs to or can decide in Heller how firearms may be used (i.e., the “private purposes” for which they may be kept), because the statutes prohibit mere possession.

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.

In order to uphold a broad individual Second Amendment right to keep and bear arms, you really need a FOURTH step — that the right is sufficiently “fundamental” that a strict scrutiny analysis is required. If the “compelling interest,” “narrowly tailored” and “least restrictive alternative” requirements of strict scruiny were applied in an analysis of D.C.’s handgun ban, it would undoubtedly fall.

If, on the other hand, the Court were to find that the lower “rational basis” standard of review applies to firearms regulations, it is quite possible that a lower court on remand would be able to find that D.C.’s handgun ban is permissible. Under a rational basis review, D.C.’s handgun ban arguably could be found to address an important governmental interest (deterring street crime with concealable weapons), and an able-bodied citizen like Heller could be deemed capable of adequately exercising his right to personal self-defense in the home with a long gun.

Just a thought…

Obfuscatory legalisms stink of Humpty Dumpty: Words mean only what courts say they do. (Think McCain/Feingold, wherein hundreds of convoluted pages interpret “no law” to mean “shut up, we explain.”) What Mr. Justice Kennedy eats for breakfast bears on repulsing violent attack? Let brilliant legal minds (BLMs) eat their own words.