February 11, 2008

posted by Mike O'Shea

Wow...get a few of those neutral states and you could have a Con con.

Not that I would want any changes to 2A...but another Amendment supporting a right to self defense would go a long way...

I was somewhat surprised to see that North Carolina and Tennessee declined to join the pro-Heller brief. Tennessee, in particular, has an old, strong (but also distinctive) tradition of enforcing its state constitutional right to arms.

I don't know much about the current political climate in TN; it would be interesting to hear Glenn Reynolds's take on that choice.

From the opposite direction, I was surprised to see the State of Illinois sitting out Heller.

In an earlier stage of the case, Illinois joined New York et al. on an amicus brief in favor of granting certiorari, but it dropped back out of the pro-D.C. coalition once the Supreme Court granted cert. Again, a current Illinoisan would be better placed to speculate on that choice. I do know that rural downstate Illinois tends to be pro-gun, while the upstate electoral juggernaut of Chicago is perhaps the most anti-gun region in the country after D.C. itself.

I was disappointed to see that the Arizona AG did not sign on with the Texas Brief. I had written him a letter asking him to sign on. It is possible that he was told not to participate by our Democrat Governor Janet Napolitano who is also openly supporting Obama for the Democrat nomination. Obama is VERY anti-gun.

I just skimmed 5-state brief. IANAL, but it seems incredibly disingenuous.

States and their courts...have proven fully capable of protecting the legitimate interests of firearms owners while leaving room for reasonable regulation

Here in NJ, the Courts have entirely abdicated their responsibility to protect gun owners. Although NJ is nominally a concealed carry state, as a matter of policy the courts will not grant licenses except to the politically powerful. Although State statutes require that permits to purchase firearms be granted within 30 days, the Courts have gutted the law -- I know of NO example in which the response has been within a month, or even two months.

Most States have constitutional or statutory provisions pertaining to the right to bear arms.

I was somewhat surprised to see that North Carolina and Tennessee declined to join the pro-Heller brief. Tennessee, in particular, has an old, strong (but also distinctive) tradition of enforcing its state constitutional right to arms.

Democratic Governors both. In NC's case, an elected Democratic Attorney General, Roy Cooper. In TN's case, an appointed Democratic Attorney General.

RE: Federal Farmer: Actually an amendment supporting self defense would dilute the current position where the U.S. Supreme Court has ruled that self defense is one of the unalienable rights mentioned in our Declaration of Independence.

There are three basic reasons why the District’s ban on handguns does not violate the Second Amendment.

First, as the overwhelming majority of circuit decisions conclude, the text and history of the Second Amendment establish that it protects weapons possession and use only in connection with service in state-regulated militias. That conclusion is supported by United States v. Miller, 307 US 174 (1939), in which the Supreme Court unanimously directed that the Second Amendment “must be interpreted and applied” in view of its “obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces.”

Second, even if there is a right to possess and use weapons unrelated to militia service, the Second Amendment restricts only federal interference with state-regulated militias and state-recognized gun rights. Legislation enacted by the District does not implicate the Amendment.

Third, in any event, the District law at issue in this case does not infringe whatever right the Second Amendment could be read to protect, because it is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun.

In short, the DC Circuit’s decision was in conflict with nearly every other federal circuit court in the country, and wrong on the law. Indeed, this is the first time in the nation’s history that any appellate court has overturned a gun law under the Second Amendment.

Robert's analysis is dead wrong. When the Constitution was written, the term "militia" referred to all able-bodied men (persons) over the age of 17--at least that's what it says in the Federalist Papers. Furthermore, the Second Amendment does NOT grant anyone any rights. It assumes that such rights already exist by virtue of our being free citizens,and restricts the government's authority to interfere with those rights. A case can be made that those who are insane or those who are convicted felons do NOT enjoy all of the rights of free citizens and therefore restricting THEIR right to keep and bear arms is reasonable and not proscribed by the 2nd. Further, the courts have held that the rights referred to in the 2nd Amendment IS an individual right and NOT a "collective" right for the purpose of national defense. Please do not try to re-write history.

I implore all of the pro-2nd amendmant-pro self defense readers of this website to look deeply into the way millions of Americans--veterans AND others are being denied their rights of self-defense because of the broad way the federal government and its agencies are taking these rights without true due process and a right to a defense before a jury.
Mental illness is a broad--often misused term. The facts are --Americans who are having-so-called- "mental problems"-- are no more likely to commit a violent act than any other person. That is right--NO MORE LIKELY.
When the rare statistical exception does occur--the anti gun-anti self-defense-anti-democratic thugs use it to scare unaware citizens and take the Human and Constitutional Rights of these Americans away quietly. None of us complain--they are "nut cases" Right? Mostly that is....wrong...wrong..wrong.
Many of these victim Americans are often too embarrassed and fearful to stand up for themselves.
It is up to those of us who can see facts and justice to fight for all Americans rights--not simply the rights of the obvious.
Remember this---in the morning they will come for the easy victims...at night they will come for the rest of us.

Why, oh why, do people think this is a Second Amendment case? The case ought to be decided on simple statutory grounds, because Congress never authorized the handgun ban. The amicus brief filed by the congressional majorities made that pretty clear.

Here's a relevant quote from Clinton v. Englebrecht, 80 U.S. 13 (1871), which involved an act by a territorial legislature:

"In the first place, we observe that the law has received the implied sanction of Congress. It was adopted in 1859. It has been upon the statute book for more than twelve years. It must have been transmitted to Congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws on or before the 1st of the next December in each year. The simple disapproval by Congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body."

In the case of the DC handgun ban, the ban was against longstanding federal policy. There's no way that the implied consent of Congress can be reasonably inferred. And the lack of implied consent is emphasized by the amicus brief filed by majorities of the House and Senate.

From the Amici text:
"A court would likely conclude that machine guns
and undetectable firearms do not constitute “Arms” under the Second Amendment."

Hows does statement allign with the origin's definition of arms being "of the type in common use", or even Miller, which informs on the type of arms protected by the second amendment as being "[o]rdinary military equipment"

Also, from Miller, the seconds purpose has been defined "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the second amendment were made."

How can effectiveness be maintained without arms that are in common use, specifically "machine guns".

And anyway, machine guns have never been prohibited from private citizens, they've only been made prohibitively expensive (as of 1986) in such a way that private ownership is in fact being infringed.

Illinois' socialist regime filed on the DC side. Please mark the state of illinois accordingly with a hammer and sickle

Some more reasons why Robert is wrong:

On his first point, the Supreme Court knew that Miller was not in any militia, so if they believed the Second Amendment only applied to state militias, Miller would not have had standing and they would not have taken the case. With this current case, there were initially five plaintiffs and when the Supreme Court took this, they determined that four of the five did not have standing. Again, the 1939 Supreme Court would have said the same if they believed that the 2A was tied into belonging to the National Guard.

Also, they said that a sawed off shotgun was not a weapon in common use of the military at the time and so that is why there was no violation of the Second Amendment. Conversely, the firearms in common use at the time, Assault Rifles and handguns, would be covered under the Second Amendment.

On his second point, the Bill of Rights has long be applied to the states and by extension the Washington D.C. government. It is, afterall, a federal city.

On his third point, this is his opinion and it's based on ignoring the fact that handgun bans only effect the law abiding people who would use them to protect themselves and that guns are used in this positive way. Criminals are not effected by handgun bans, therefore it makes the streets safer for the criminals. No one in their right mind would think it's okay to infringe on a right that makes a criminal's "job" safer.

Regarding Miller, it should be pointed out that Miller either died or disappeared (I've read conflicting stories supporting both cases) prior to the SCOTUS case so there was no defense council present. The entire case was tried by the court with only government lawyers participation. Had a viable defense been available a case might very well have been made for the military use of short barreled shotguns which in fact were used in WW I trench warfare. In any case, the Miller decision did reinforce the concept of the unorganized militia being all male US citizens, not just those in active service.

As a Jewess in the US, I am VERY pleased that 31 states support our rights! I would like to remind all that America wasn't won with a registered gun, and that criminals are stopped by FIREARMS, not by talk. That is why all REAL Americans put our 2nd Amendment FIRST!!

As the states are not allowed to arm a militia without consent of Congress or the President (Art 1, Sec 10, para 3), anyone claiming it protects a "state right" is an idiot. The Fed owns the National Guard and every weapon it has. The governor has NO AUTHORITY to give countermanding orders (Perpich vs DoD, 1990). (And a matter of policy discussed on a regular basis in the 17 years I spent in the Guard.) There is no "State militia" and never has been.

Title 10, USC, Ch 311 still defines the militia as "all able bodied males between 17 and 45, and anyone else who wishes to declare so."

Invoking the "uniquely dangerous" handgun, which has been around for 600 years (120 for semiautos), is just lame.

Nice try, Robert. Actually, no, it wasn't.

Indeed. Robert did seem quite the liberal talking point troll. The standard distortion of the facts comes from the "tell a lie often enough and it becomes the truth" meme. Robert, the personnel here would be the ones checking the facts, not buying the bs. Don't even try.