Na na na na, Hey Gun Ban, Goodbye!

[strummer8526]

I don't understand how people in favor of this ruling get around the existence of the beginning of the Amendment. It clearly refers to the existence and necessity of the well-regulated militia. Am I to believe now that Joey Johnson living on Connecticut Avenue, NW is part of an organized force that will oppose federal tyranny just because he's now hauling a gun around the city?

That being said, I haven't read the full opinion and Con Law II is next semester, so I'm still getting there as far as figuring out where I stand on this issue.

One thing I would LOVE to see:

1. Get 200-300 anti-gun protestors in the District.
2. All of 'em go get their guns.
3. Walk down to the National Mall.
4. Start marching.
5. Watch the public reaction when the "well-regulated militia" shows back up.

You can't deny that a large part of the Second Amendment--in fact a whole introductory clause--refers to the necessity of the militia. If those who want guns banned really want to prove a point, then they should do this and make very clear that if we're goign to continue to live by the words of the Second Amendment, then we're going to arm an organized military force.

OK, so this would be a huge disaster. Really, I'm talking about a publicity stunt / sort of protest. But it would be interesting, or at least entertaining to imagine.

[kchoya]

Jun 27, 2008 14:51:30 GMT -5 strummer8526 said:

I don't understand how people in favor of this ruling get around the existence of the beginning of the Amendment. It clearly refers to the existence and necessity of the well-regulated militia. Am I to believe now that Joey Johnson living on Connecticut Avenue, NW is part of an organized force that will oppose federal tyranny just because he's now hauling a gun around the city?

It's been a while since Con Law II, but I don't think you'll get into the 2nd amendment as Heller is pretty much the first SCOTUS case tackling the core of the amendment. (there are other "second amendment" cases, like Miller, but they were more on the periphery).

As far as the militia clause, here's a stab: the original intent and purpose of the Second Amendment was not to grant the right to bear arms. Instead, it was to guarantee and preserve the already existing right to keep and bear arms. The reference to a militia was not intended as prerequisite for the right to bear arms.

Remember, these amendments guarantees individual rights (to worship, to be free of unreasonable searches & seizures, to a speedy trial, etc.). The reference to the militia does not somehow transform the right to keep and bear arms into a collective right. The right was preserved for an individual, whether or not he was a soldier or member of an militia.

[AustinHoya03]

Jun 27, 2008 14:51:30 GMT -5 strummer8526 said:

I don't understand how people in favor of this ruling get around the existence of the beginning of the Amendment. It clearly refers to the existence and necessity of the well-regulated militia.

Get your copy of the Federalist Papers off the shelf this weekend and you'll find the word militia is often used to refer to the public at large.

As for theexorcist's assertion, I would like to state for the record that I own multiple handguns and am about to enroll in a course that will allow me to obtain a concealed carry license. I agree with the ruling in Heller. However, I also understand the need for handgun control in some places -- I think it would be beneficial to cities such as Los Angeles or Houston because of the serious gang problems that exist in those places. After Heller, the only feasible way I see for DC or any city to have handgun bans is to repeal or modify the 2nd amendment. So I thought I would throw the question out there. If the 2nd amendment ceased to exist, I am pretty sure I would still be able to own a gun in Texas -- local jurisdictions would simply have the right to choose what level of gun control they wished to have. It's really not a lefty/pinko argument.

[kchoya]

Jun 27, 2008 17:34:53 GMT -5 AustinHoya03 said:

Get your copy of the Federalist Papers off the shelf this weekend and you'll find the word militia is often used to refer to the public at large.

How dare you look at how the term was used at the time of the drafting of bill of rights. You probably have a picture of Scalia over your bed!

[EasyEd]

A living constitution is no constitution at all since judges or other people can change it. If you don't like something in the constitution, use the constitution and follow the process to amend it.

[thornski]

I think one of the biggest parts of this decision is just how much litigation it will open.

I just googled this to double-check, but the opinion definitely did not resolve the issue of whether the 2nd Amendment has been incorporated to the states via the 14th Amendment. And apparently the last case to reach that issue - although back in 1896 apparently - said that it's just a federal right and is not incorporated.

So that means in theory that a state or city (other than DC since it's laws are federally-based) could still put up a ban on handguns. This probably won't actually happen, however, just given the politics of this whole issue - can't see any state or most other big cities (other than maybe one or two in the northeast) going nearly as far as DC did.

Like I just said this is just the start - with Heller, the NRA is definitely going to start going after various state laws - and this'll test the exact scope of the opinion as to certain restrictions and whether it's incorporated against the states...

[Coast2CoastHoya]

I celebrated this ruling by shooting a real gun for the first time (the BB gun at the bachelor party does not count, despite what those beer cans might have to say about it). It was Ladies Night at the gun range, too. Gotta love Colorado.

thornski is on point. This ruling opens the door to all kinds of litigation, and the question of incorporation is still very much out there.

Drums, if you get a gun I'm moving back to California.

[strummer8526]

Jun 27, 2008 17:34:53 GMT -5 AustinHoya03 said:

Jun 27, 2008 14:51:30 GMT -5 strummer8526 said:

I don't understand how people in favor of this ruling get around the existence of the beginning of the Amendment. It clearly refers to the existence and necessity of the well-regulated militia.

Get your copy of the Federalist Papers off the shelf this weekend and you'll find the word militia is often used to refer to the public at large.

If that's the case, then I see the argument to be made that the militia clause doesn't limit which people can bear arms or for what purpose they do so (although at the time, women, blacks, etc. could not conceivably have been part of the militia, even if the word was used to describe the public at large, so there was still an inherent limitation in gun ownership that we would not recognize today).

Still, I'm looking at Federalist 29, and it's pretty apparent the word "militia" is referring to a standing, organized, trained military force. Yes, it was assumed that basically all white men would serve in the militia, but there seems to be an element of responsibility, training, etc. in being somehow accountable to a military unit that is just lacking when you have every random Joe carrying a handgun.

I'm not at all a fan of the living Constitution. And I agree that the Bill of Rights confirms individual rights. The Second Amendment is just the only one with such an explanatory, seemingly limiting clause. Saying that those words do nothing to limit the right would be like saying that the "In all criminal prosecutions" of the Sixth Amendment just doesn't matter, so anyone accused of anything gets a speedy public trial.

[hoyatables]

Jun 29, 2008 10:20:50 GMT -5 Coast2CoastHoya said:

I celebrated this ruling by shooting a real gun for the first time (the BB gun at the bachelor party does not count, despite what those beer cans might have to say about it). It was Ladies Night at the gun range, too. Gotta love Colorado.

thornski is on point. This ruling opens the door to all kinds of litigation, and the question of incorporation is still very much out there.

Drums, if you get a gun I'm moving back to California.

I think it is generally a good rule that things that transpire at a bachelor party "do not count."

[AustinHoya03]

Jun 27, 2008 19:16:34 GMT -5 thornski said:

I just googled this to double-check, but the opinion definitely did not resolve the issue of whether the 2nd Amendment has been incorporated to the states via the 14th Amendment. And apparently the last case to reach that issue - although back in 1896 apparently - said that it's just a federal right and is not incorporated.

So that means in theory that a state or city (other than DC since it's laws are federally-based) could still put up a ban on handguns. This probably won't actually happen, however, just given the politics of this whole issue - can't see any state or most other big cities (other than maybe one or two in the northeast) going nearly as far as DC did.

This is correct -- and being dead wrong is what I deserve for basing my comments on Internet news and not the opinion itself.

kc, the picture of Scalia is not above my bed but inside the elaborate shrine I have constructed in my backyard.

[beantownhoya1]

WHAT IS THE POINT IN OWNING A HANDGUN?! Unless you are a cop, a soldier, or a hunter you have no use for a gun. Don't give me self-defense. Guns are meant to kill. There are other ways of self-defense that don't include killing.

[theexorcist]

Only a few more months until Midnight Madness. Thank God.

First. Strummer.

"If that's the case, then I see the argument to be made that the militia clause doesn't limit which people can bear arms or for what purpose they do so (although at the time, women, blacks, etc. could not conceivably have been part of the militia, even if the word was used to describe the public at large, so there was still an inherent limitation in gun ownership that we would not recognize today). "

Please say that you don't believe that women and minorities aren't included as part of an "inherent limitation" in gun ownership and other things such as the right to free speech and that I just read this poorly.

Now. Beantown.

"WHAT IS THE POINT IN OWNING A HANDGUN?! Unless you are a cop, a soldier, or a hunter you have no use for a gun. Don't give me self-defense. Guns are meant to kill. There are other ways of self-defense that don't include killing."

There are few other means of self-defense that don't include killing that can be used by those against those who have guns or those who are stronger than you. Even assuming that the police will be at your residence in five minutes (which is a reach if you're in the suburbs or a rural area), you have to be able to call 911 and avoid getting killed by someone for those five minutes.

Unless, of course, your name is Kevin and you have 24 hours to prepare a variety of inventive traps to humorously dispatch robbers.

[strummer8526]

Haha. No what I was saying--perhaps unclearly--was in response to the argument that in the Federalist Papers, "militia" is used to mean "the public at large." Even where it does seem to refer to all people, I'm fairly certain that "militia" would still only encapsulate white men who are of a certain age such that they might be able to conceivably fight (which at the time was probably 13? 14? I really don't know.).

Basically, my point was that even "the public at large" in this context would still be limited to those people who were somehow trained in an organized regimen and who would then be expected to serve in battle if called on. Maybe they weren't "soldiers" as we think of it now, but in the context of a society with state militias, the "public at large" to which "militia" may refer was still comprised of only those trained and organized (even if only loosely) to potentially serve some military function.

I just think that the plain language of that Amendment places a military limitation on gun rights because to say "militia" describes "the public at large" overlooks the fact that the "public" being discussed would have been those men trained and expected to fight. Just because most men were so trained and expected to fight doesn't mean that such a requirement is any less important. I didn't see "militia" used anywhere in the Federalist Papers that looked to me as though it could be referring to people with no military training or responsibilities at all (which is where women and blacks came in--they weren't going to serve in any military capacity and presumably also had no gun ownership rights).

[kchoya]

Jun 27, 2008 19:16:34 GMT -5 thornski said:

I think one of the biggest parts of this decision is just how much litigation it will open.

I just googled this to double-check, but the opinion definitely did not resolve the issue of whether the 2nd Amendment has been incorporated to the states via the 14th Amendment. And apparently the last case to reach that issue - although back in 1896 apparently - said that it's just a federal right and is not incorporated.

So that means in theory that a state or city (other than DC since it's laws are federally-based) could still put up a ban on handguns. This probably won't actually happen, however, just given the politics of this whole issue - can't see any state or most other big cities (other than maybe one or two in the northeast) going nearly as far as DC did.

Like I just said this is just the start - with Heller, the NRA is definitely going to start going after various state laws - and this'll test the exact scope of the opinion as to certain restrictions and whether it's incorporated against the states...

It'll be just like what's happened with the "right" to have an abortion. There will be restrictions on the right adopted by states and those restrictions will be challenged.

Can you ban abortions after the second trimester? Can you cut off funding to abortion clinics? Can you require parental consent?

becomes

Can you allow handguns only inside one's residence? Can you require a gun owner to pass a 5-stage, 3-day long test? Can you limit the types of handguns that are allowed? Etc....

Also, why the 2nd amendment has not expressly been incorporated through the 14th amendment to apply to the states, I think its safe to say it does apply.

[TBird41]

Jun 30, 2008 8:45:47 GMT -5 strummer8526 said:

Haha. No what I was saying--perhaps unclearly--was in response to the argument that in the Federalist Papers, "militia" is used to mean "the public at large." Even where it does seem to refer to all people, I'm fairly certain that "militia" would still only encapsulate white men who are of a certain age such that they might be able to conceivably fight (which at the time was probably 13? 14? I really don't know.).

Basically, my point was that even "the public at large" in this context would still be limited to those people who were somehow trained in an organized regimen and who would then be expected to serve in battle if called on. Maybe they weren't "soldiers" as we think of it now, but in the context of a society with state militias, the "public at large" to which "militia" may refer was still comprised of only those trained and organized (even if only loosely) to potentially serve some military function.

I just think that the plain language of that Amendment places a military limitation on gun rights because to say "militia" describes "the public at large" overlooks the fact that the "public" being discussed would have been those men trained and expected to fight. Just because most men were so trained and expected to fight doesn't mean that such a requirement is any less important. I didn't see "militia" used anywhere in the Federalist Papers that looked to me as though it could be referring to people with no military training or responsibilities at all (which is where women and blacks came in--they weren't going to serve in any military capacity and presumably also had no gun ownership rights).

I think you're overstating the amount of training that went into these militias. They weren't training "one weekend a month-two weeks a year". People were called up when they were needed and expected to bring their own guns.

[theexorcist]

Jun 30, 2008 12:23:30 GMT -5 TBird41 said:

Jun 30, 2008 8:45:47 GMT -5 strummer8526 said:

Haha. No what I was saying--perhaps unclearly--was in response to the argument that in the Federalist Papers, "militia" is used to mean "the public at large." Even where it does seem to refer to all people, I'm fairly certain that "militia" would still only encapsulate white men who are of a certain age such that they might be able to conceivably fight (which at the time was probably 13? 14? I really don't know.).

Basically, my point was that even "the public at large" in this context would still be limited to those people who were somehow trained in an organized regimen and who would then be expected to serve in battle if called on. Maybe they weren't "soldiers" as we think of it now, but in the context of a society with state militias, the "public at large" to which "militia" may refer was still comprised of only those trained and organized (even if only loosely) to potentially serve some military function.

I just think that the plain language of that Amendment places a military limitation on gun rights because to say "militia" describes "the public at large" overlooks the fact that the "public" being discussed would have been those men trained and expected to fight. Just because most men were so trained and expected to fight doesn't mean that such a requirement is any less important. I didn't see "militia" used anywhere in the Federalist Papers that looked to me as though it could be referring to people with no military training or responsibilities at all (which is where women and blacks came in--they weren't going to serve in any military capacity and presumably also had no gun ownership rights).

I think you're overstating the amount of training that went into these militias. They weren't training "one weekend a month-two weeks a year". People were called up when they were needed and expected to bring their own guns.

Not sure if this has been posted here - always go to source material. I love the internet. www.supremecourtus.gov/opinions/07pdf/07-290.pdf

Anyway. I don't think that discussing the state of the militia is going to help here. Much of the majority opinion focused on the self-defense part of the amendment, not the militia part (in fact, Scalia's wording trashes the idea of the militia as solely a local or national guard.

Even more important in the majority opinion is the idea (mainly applied to the idea that only 18th century weapons count) that the amendments cover their modern counterparts (note the comments on protection from search and seizure over the internet). There's also quite a few pages that quote state constitutions to indicate that the militia part isn't the critical part - it's the self-defense part (and defense of the state and State part).

I'll disagree with kchoya on the "right to an abortion" (there's no "right to an abortion" amendment), but will agree that now the question becomes what level of control is constitutional. There have apparently already been quite a few lawsuits filed to question other laws in other cities and states. Fun time to be a lawyer.

[thornski]

KC - true enough on the incorporation issue. I was just stating that it hadn't been incporated from purely a technical standpoint. So in theory, while a state could still ban guns, from a political/policy/etc. standpoint they certainly will not.

Also a distinct possibility that given the sheer amount of litigation that's going to spring from this decision, that the court in the very near future could incorporate it. Just fascinating on how the court could be hearing several more cases on the 2nd Amendment in the very near future after having heard like all of 3 cases in the past 100 years.

[hifigator]

Boz, I am with you on that one. I don't smoke but I still think the ban we have in Florida is a bad law. Basically any place that sells food can't allow smoking. There is some exemption for places that take in less than 10% of their revenue from food sales, so large bars with snack items can slide by, but essentially any real restaurants can't allow smoking. Like I said, that is a bad law. One great example is a place called Hogan's Heroes. They have some of the best sandwiches around. the front half is a standard NY style deli with a sandwich counter where you order and very limited seating. The back half is a small sports bar with every beer imaginable. During the day there will typically be 10-15 people standing in line to order sandwiches. I think they stop serving food at 10pm but are open until 11pm or 2pm depending on the night of the week. But under the new law, smoking is prohibited in that building 24-7. It's just a bad law.

There solution was to build a smoking patio out back. THere are about a half dozen tables and another half dozen benches. Then they covered it in somekind of camoflauge netting. The cool part is that because of the privacy back there, left handed cigs will routinely put in an appearance. I still don't like the law though.

[moe09]

Jun 27, 2008 8:22:01 GMT -5 theexorcist said:

Jun 26, 2008 19:39:08 GMT -5 AustinHoya03 said:

I'll take this opportunity to post one of the better pieces on the Second Amendment I have read:

www.constitution.org/mil/embar2nd.htm

And I will also raise a question. Does the court's ruling today pave the way for a real national movement to repeal the 2nd Amendment? Would such a campaign have any chance at succeeding?

HAHAHAHAHAHA. You've never been outside the Northeast, have you?

One of the more interesting differences between the United States and almost anywhere else is a fundamental distrust of government. I consider the right to keep and bear arms an essential check on ensuring that the United States never develops a paternalistic attitude toward its citizens.

Hahaha.. you've never been outside of the US, have you?

[StPetersburgHoya (Inactive)]

I agree with the decision - each word in the constitution has to have meaning. The grammatical reading of the second amendment lends itself to the conclusion that there is an individual right to own a firearm. The amendment is silent on whether there can be reasonable restrictions placed upon that right. I think that the court could have articulated a clearer rule if they set up either a reasonableness test or a test with varying levels of scrutiny for state curtailment of second amendment rights. But I understand that the doctrine of judicial restraint may have prevented the Court from getting into that in the Heller decision. I believe that is where the court is ultimately heading though.

However, because each word in the constitution has to have meaning - the 8th amendment decision regarding the death penalty for child rapists is also a correct reading of "cruel and unusual" because it refers to evolving standards of decency. In addition, the 14th amendment's equal protection clause and due process clauses should be read to have the expansive meaning that their words confer. That includes equal protection of a woman's right to choose, access to contraceptives, and access to education.

ON EDIT: KC is right on about incorporation - this is simply an issue of lack of attention to the second amendment. This will eventually become a test of the reasonableness of state or local restrictions on firearms. Some laws like restrictions on carrying guns in airports and near schools are likely to be closely tied to a strong government purpose and will likely withstand this review. It is harder to say, without more guidance from SCOTUS, whether a program restricting the ability of DC residents to carry guns in high crime neighborhoods would be a reasonable restriction.