Another gun rights case for SCOTUS

[Old Fashioned]

Thomas Jefferson - "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference."

Justice Antonin Scalia - In writing for the majority of the court in the Heller case Justice Scalia said a review of "founding-era sources" convinced the court that the term "bear arms was unambiguously used to refer to the carrying of weapons outside of an organized militia."

http://www.star-telegram.com/242/story/1593634.html

[d90king]

I'm slightly confused by this statement "The Blaies and Hightower law firm in Fort Worth recently submitted an amicus brief on behalf of gun associations in more than two dozen states supporting the right of McDonald and others to own and keep a gun in their homes".

This in essence is what Heller decided. I would like to see it extended to bearing arms period.

[Dial 1911 for Help]

Well, Heller decided it as to the feds, but not as to the states or municipalities. Heller was intentionally chosen that way -- sympathetic non criminal plaintiff, plaintiff carried a gun during working hours, DC is under federal rather than state jurisdiction, etc. It was a case almost literally "built to order" to avoid giving SCOTUS any excuse not to find for Heller. As a result, the ruling is fairly small, except for the landmark and overdue finding that yes, indeed, the Second Amendment protects us as individuals, just like the rest of the Bill of Rights, but it was worth it to get that after 200 some odd years. Had Heller come from some state jurisdiction it would have raised the issue of application to states, called "incorporation", and might have made a favorable ruling less likely.

[Old Fashioned]

There were two things in that news article that struck me as particularly telling. First, the quote from Thomas Jefferson in which he said the people need a bill of rights against every government on earth. Against every government on earth seems, to me at least, to indicate that he was refering not only to the federal government but also state and local governments which would in turn imply that Thomas Jefferson intended for the Bill of Rights to apply to all levels of government. In writing for the majority of the Court in the Heller case, Justice Scalia said that the court was convinced that the term " bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. A militia was a state or local organization, the equivalent today being the National Guard. It would seem that the court, by saying that the term "to bear arms" in the 2nd Amendment referred to carrying weapons outside of an organized militia, was, by extension, implying that the 2nd Amendment applied to the states since the militia referred to was a state or local organization.

[Chilo45]

There were two things in that news article that struck me as particularly telling. First, the quote from Thomas Jefferson in which he said the people need a bill of rights against every government on earth. Against every government on earth seems, to me at least, to indicate that he was refering not only to the federal government but also state and local governments which would in turn imply that Thomas Jefferson intended for the Bill of Rights to apply to all levels of government. In writing for the majority of the Court in the Heller case, Justice Scalia said that the court was convinced that the term " bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. A militia was a state or local organization, the equivalent today being the National Guard. It would seem that the court, by saying that the term "to bear arms" in the 2nd Amendment referred to carrying weapons outside of an organized militia, was, by extension, implying that the 2nd Amendment applied to the states since the militia referred to was a state or local organization.
Exactly. That is my understanding also. Very well stated.

[Dial 1911 for Help]

First, the quote from Thomas Jefferson in which he said the people need a bill of rights against every government on earth. Against every government on earth seems, to me at least, to indicate that he was refering not only to the federal government but also state and local governments which would in turn imply that Thomas Jefferson intended for the Bill of Rights to apply to all levels of government....It would seem that the court, by saying that the term "to bear arms" in the 2nd Amendment referred to carrying weapons outside of an organized militia, was, by extension, implying that the 2nd Amendment applied to the states since the militia referred to was a state or local organization.
Yes, excellent points.

[Aguila Blanca]

A militia was a state or local organization, the equivalent today being the National Guard.
I'm afraid I have to disagree. Federal law still recognizes the militia (Google "Militia Act"), and it is very clearly NOT the National Guard ... at least, it is clearly not limited to the National Guard, although the Guard is a component of the Militia.

The first Federal Militia Act was enacted in 1792. It was revised in 1862, and again in 1903. The current version reads as follows:

10 U.S. Code, Section 311

Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are --

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[Old Fashioned]

Originally, there was no national army. Each state had it's militia. In fact, many villages had a militia which may have been part of the state militia. The National Guard is the modern day equivalent of that militia. The National Guard of each state is under the control of the state govenor but must meet certain federal standards because it gets most of it's equipment and a large percentage of it's funding from the federal government. During times of national emergency it may be called up under federal control. The bill of rights (first 10 amendments) was proposed by congress in 1789, was ratified by the states and was proclaimed to be in force 15 December 1791. That puts the 2nd Amendment in force prior to the first Federal Militia Act.

[d90king]

Well, Heller decided it as to the feds, but not as to the states or municipalities. Heller was intentionally chosen that way -- sympathetic non criminal plaintiff, plaintiff carried a gun during working hours, DC is under federal rather than state jurisdiction, etc. It was a case almost literally "built to order" to avoid giving SCOTUS any excuse not to find for Heller. As a result, the ruling is fairly small, except for the landmark and overdue finding that yes, indeed, the Second Amendment protects us as individuals, just like the rest of the Bill of Rights, but it was worth it to get that after 200 some odd years. Had Heller come from some state jurisdiction it would have raised the issue of application to states, called "incorporation", and might have made a favorable ruling less likely.


I don't agree completely... My understanding is that Heller affirmed the citizens right to a operable firearm for self protection in ones home. The laws of DC at the time didn't allow proper access to your firearm therefore infringing upon your right to bear arms. With that in mind I don't think there ruling was based on the case being filed in DC.

Heller
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether a District of Columbia prohibition
on the possession of usable handguns in the home violates
the Second Amendment to the Constitution.
I
The District of Columbia generally prohibits the posses-
sion of handguns. It is a crime to carry an unregistered
firearm, and the registration of handguns is prohibited.
See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–
2502.02(a)(4) (2001). Wholly apart from that prohibition,
no person may carry a handgun without a license, but the
chief of police may issue licenses for 1-year periods. See
§§22–4504(a), 22–4506. District of Columbia law also
requires residents to keep their lawfully owned firearms,
such as registered long guns, “unloaded and dissembled or
bound by a trigger lock or similar device” unless they are
located in a place of business or are being used for lawful
recreational activities. See §7–2507.02.1

1. Operative Clause.
a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the peo-
ple.” The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.5

I don't see how they would not apply this regardless of where the "people' lived...


b. “Keep and bear Arms.” We move now from the
holder of the right—“the people”—to the substance of the
right: “to keep and bear Arms.”
Before addressing the verbs “keep” and “bear,” we inter-
pret their object: “Arms.” The 18th-century meaning is no
different from the meaning today. The 1773 edition of
Samuel Johnson’s dictionary defined “arms” as “weapons
of offence, or armour of defence.” 1 Dictionary of the
English Language 107 (4th ed.) (hereinafter Johnson).
Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast
at or strike another.” 1 A New and Complete Law Dic-
tionary (1771); see also N. Webster, American Dictionary
of the English Language (1828) (reprinted 1989) (hereinaf-
ter Webster) (similar).


Once again I don't know how this wouldn't apply anywhere in the US.


DISTRICT OF COLUMBIA v. HELLER

Opinion of the Court
In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful fire-
arm in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the Dis-
trict must permit him to register his handgun and must
issue him a license to carry it in the home.



Once again I cant imagine they can distinguish between a home in DC or a home in GA....

[Dial 1911 for Help]

Once again I cant imagine they can distinguish between a home in DC or a home in GA....

Well, it boils down to "incorporation". Prior to the late 1800's the BOR was thought to apply only to the federal government but not to the states (though I supposed one could make the argument that with it's stronger and broader language, ONLY the Second applies to the states). One by one, SCOTUS has found that they do indeed apply to the states. The Second is one of those for which this hasn't been done yet. For some reason, liberals were at the front of the line so all their stuff, like the right to have sex with a corpse, burn the flag, and so on, applies against the states but not yet the one that actually says "shall not be infringed". Doesn't make sense? Of course not, that's why they're doing it in a courtroom!

[Old Fashioned]

Quote:
(though I supposed one could make the argument that with it's stronger and broader language, ONLY the Second applies to the states).


If one could make that argument, then incoporation would not be required. You could also make the argument that the 2nd is our most basic right and that all other rights are dependent on the 2nd. The 2nd gives one the ability to defend one's life, family, home and other property. Without that right, all other rights would not exist or would be very fleeting in nature.

Excuse my stupidity. I can't figure out how to get a quote outlined in a box.

[Dial 1911 for Help]

If one could make that argument, then incorporation would not be required.

Well, I think that's a bit of a leap. Valid arguments have often been turned away by SCOTUS. Technically, I don't think incorporation SHOULD be required because the language is so unequivocal. But with the system we have, even it I'm correct, it has to get to court so it can be PROCLAIMED that that's the way it is.

What I was trying to say as an aside to my main point, was that if the Constitution was written and ratified last week, a reasonable attorney might argue the Second was inherently incorporated, or at least more of a shoe-in for incorporation than the First due to the language. The Second has yet to be incorporated, but don't forget that until last year, it wasn't even entirely clear whether it was viewed as an individual right. Maybe this very argument will be used.

As far as quote boxes go, click the icon in the lower left of the post you want to reply to, that looks like a little pen writing on some parchment. This will automagically quote the entire post, but after previewing the quote code shows in the box where you compose and you can edit which parts of the post you want to quote.

[Old Fashioned]

Dial 1911 for Help, thanks for the help on the quote thing. I agree, it has to get into court so the court can rule that it means what ever the court "decides" that it means. I think my reasoning is logical, reasonable, and supported by the facts. Having said that, I seriously doubt that the court would agree. There is a simple way of deciding this, a way that existed before courts, lawyers, or judges. Simply pick representatives of the pro gun, pro gun control, and anti gun segments of society, and by all means include a rep for the anti gun DC segment. Lock them all in a room. The opinion of the lone survivor rules. I nominate Chuck Norris to represent the pro gun pro carry segment of society. :D :D :D :appld: :appld: :appld: :D

[Dial 1911 for Help]

And...one could improve your method to measure even better the merits of the arguments held by the two sides. The gun guys get to have guns, and the anti's don't. We'll see who's right pretty quick.