2nd Amendment Case (Held: individual right)

[cannon_fodder]

SHELLY PARKER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND
ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA,
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

I read this Sunday evening (loser, I know) and found it damn interesting.  We have gone over this debate several time here with no real answer.  In the next few days, we will have an answer (unless they skirt the question, the jerks).  So I figured I'd see if I could shed some light on it before the decision.  A summary of the 60 page analysis  and probably a precursor to the SCOTUS decision (which will also probably not tackle the details).  

The law:
DC has banned all handguns for all person but-for Police Officers, on-duty military personnel, and and retired Police Officers by permit.  Also, any firearm in DC must be disassembled and unarmed.  Both provisions apply to transport, home, and public in all instances.

The Plaintiffs: (page 4 as linked above, too lazy to cite correctly on the internets)
Various persons denied permits to have firearms - including an active duty Federal Security guard who carries a firearm at work in DC, a man who wishes to have a registered shotgun in his home without having to render it non-functioning, and a woman wanting a handgun for self defense.  

Standing is by virtue of the security guard - (page 5) denial of his application gives rise to a cause of action on the 2nd Amendment.

At Issue:

quote:A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall
not be infringed.

Procedural Standing: (page 1-2)
Dismissed at the district level - held: Second Amendment does not provide an individual right (per 9th Circuit Largely).

Arguments:
Appellants (page 13) - the first clause is prefatory and the second clause is functional.  Therefor, it is an individual right with the former serving only as a "civic purpose" statement and not qualifying the right. "They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms."  (Hence the Supreme Court could have a narrow opinion and skirt the issues).

D.C.: (13)

The prefatory clause outlines the sole purpose of the Amendment - to guarantee the rights of the States to raise militias.  Furthermore, it only guarantees those rights to such an extent as the State Militias existed at the time of the Framing, which no longer exist. In Oral arguments it was argued that DC could outright ban all firearms.  "In short, we take the District's position to be that the Second Amendment is a dead letter." (The National Guard is a Federal Army unit and not truely state controlled, thanks to the Civil War)

Held:
Overturned.  The 2nd Amendment is an individual right of The People to bear arms. The hang gun ban and the disabled firearm provisions are struck.

Court's Analysis:
1. Right of the People - (18)
The framers were competent enough to have written "Congress shall make no law disarming the state militias" if that was their sole intention.  Likewise, they chose to use the term "the People," which is universally accepted as meaning an "individual protection against intrusion" in the 1st, 4th, 9th and 10th Amendments (as applicable).   Furthermore, the 10th specifies rights reserved to "the States" - indicating the ability to use differentiating language if they chose.

Second (page 20), the right to bear arms pre-existed the constitution.  The wording "preserves" the right as opposed to the government creating the right.   Thus, the government can not infringe upon that right.

Since it was preserving a right, the Founders saw value in the existing right.  The usage of firearms in the day was for hunting, self defense, and "if absolutely necessary, to assist in the overthrow of a tyrannical government."  All causes for which firearms can be useful in this day.

And finally (p. 23), every provision on the Bill of Rights - but for the 10th, which specifically indicates the States, provides for an individual right.  The 2nd Amendment would be an "aberration" if viewed in any other light.

2. Definitions - (24)
The Circuit goes on to pound the definition of the words "bear" and "keep" to death. Deciding that they are inherently ambiguous and general terms of the day.  Bear meaning essentially to "hold or carry" and "keep" referring to possession (as opposed to "upkeep" as in maintenance of an army).  

They then go over weather a "regulated militia" is synonymous with a State's organized civilian fighting force or has a broader meaning (page 28).  The Circuit concludes that by historic statutes one was required to be "enrolled" in the militia - not trained or active, essentially to make themselves available as a "raw material for a fighting force."  All males over the age of 18 are required to enroll in the US Selective Service - thus, but historical standards all males are enrolled in a "well regulated militia." The court narrows this view somewhat, but firmly rejects the narrow interpretation of militia.

To finish of militia - the Circuit notes that the militias were independently required to arm themselves and be regulated and organized by the States.  After enrolling (selective service) men were required to arm themselves in the event they should be organized.  Participation was widespread and mandatory, ie. NOT the National Guard.  Preserving the rights of masses to hold firearms was the best way to ensure an active pool for military service on call.

3. Civic Purpose - (page 37 of the opinion, I should have been citing, sorry)
The purpose of the perfunctory clause was quell unease about a standing Federal army.  At the Assembly neither side argued that the government had the power to disarm the people - they argued about weather the Federal Government should be allowed to have a standing army.

4. Limitations (45)
Distinguishing en mass the difference between private purpose and militia purpose firearms a "Silly Exercise."  However, the court was not hostile to the Miller's holding that some restrictions would be acceptable.  Noting that militia men of the era did not keep cannons at home.  Trying to distinguish between personal and military use of each rifle is impractical.

quote:To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

Page 46.

5. What can be banned? (page 51)
Militia men of the time were required to have ""a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder . . . ." Essentially be prepared as a soldier with the outfitting of a riflemen.    More than "mere antiques to hang above the mantle" but short of artillery (artillery men had to bring ancillary items).  

The Circuit followed a 2 pronged test:
1) "reasonable relationship to the preservation or efficiency of a well regulated militia," (the arms needed to serve)
2) Of the kind personally owned and "of the kind in common use at the time."

HOWEVER, at the time common law banned firearms from entire classes of people.  Drunkards, felons, idiots, etc.  Furthermore, weapons were not allowed in many government buildings, churches, etc.  Thus, restrictions for public wellbeing are allowed.

The court does not try to tackle the details of what and when restrictions can be placed (thanks for that court). And I'll spare you the dissent...
- - -

[Conan71]

So, let me get this straight, if an armed maniac invaded my home in the middle of the night, I couldn't defend myself with a handgun and I'd have to assemble and load my rifle before I could defend myself.  What a load of ****.

[cannon_fodder]

Here is a great example of someone writing an article that has not read the DC Circuit opinion nor even a summary of it:
http://blog.nj.com/njv_bryan_miller/2008/06/imminent_supreme_court_2nd_ame.html#post

No idea what he is talking about in "well regulated militia," what weapons he is walking about, what checks are currently in place, what gun "advocates want" nor for that matter what the point of the Constitution is.

quote:es, I'd hate to see the wishes of the citizens of DC, Chicago and other municipalities that have chosen to ban handguns be overruled by an archaic and vague one-sentence Amendment.

Ah yes, loathe the day when the Constitution usurps local governments.  When the Constitution can guarantee citizens rights over Chicago, we are certainly all screwed.  Not too mention the archaic "rights" that are granted, clearly we can ignore most of those and move on after 200 years!  

I propose a ban on religion in Oklahoma, an archaic institution responsible for much distress over the years... certainly no longer worthy of protection regardless of what some old chunk of parchment says.

[FOTD]

quote:Originally posted by cannon_fodder

Here is a great example of someone writing an article that has not read the DC Circuit opinion nor even a summary of it:
http://blog.nj.com/njv_bryan_miller/2008/06/imminent_supreme_court_2nd_ame.html#post

No idea what he is talking about in "well regulated militia," what weapons he is walking about, what checks are currently in place, what gun "advocates want" nor for that matter what the point of the Constitution is.

quote:es, I'd hate to see the wishes of the citizens of DC, Chicago and other municipalities that have chosen to ban handguns be overruled by an archaic and vague one-sentence Amendment.

Ah yes, loathe the day when the Constitution usurps local governments.  When the Constitution can guarantee citizens rights over Chicago, we are certainly all screwed.  Not too mention the archaic "rights" that are granted, clearly we can ignore most of those and move on after 200 years!  

I propose a ban on religion in Oklahoma, an archaic institution responsible for much distress over the years... certainly no longer worthy of protection regardless of what some old chunk of parchment says.

LOL Fodder. Is this the tradeoff? Because no religion means no devil rituals which I consider a personal attack.[)]

[cannon_fodder]

Just forcing an issue.  Most people would see the fault in removing protection for that right, even if they agree with the sentiment.  But for some reason, the trade off of rights for a sense of security has become popular lately.

Rumor mill has the ruling out tomorrow with Scalia writing the majority opinion.  Expect many concurring opinions, several dissents, and perhaps a plurality if they paint with a broad brush.  The latest I heard is the case is being delayed to reword the Scalia opinion to get a firm majority or even a unanimous decision, with concurring opinions expanding the opinion.

We shall see...  it's been about 80 years in coming.

[CoffeeBean]

Supreme Court strikes down DC ban on handguns.

[cannon_fodder]

Blurb:
http://www.scotusblog.com/

Opinion:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf
[edit]157 pages!!![/edit]

quote:we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

Strike the complete ban of firearms, but allows regulation of firearms exclusively for military purposes.

quote:Justice Antonin Scalia's opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.

More when I can read it.

[Conan71]

Here's the WaPo story if anyone wants it in layman's terms []:

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062600615.html?referrer=email

This is a landmark. First conclusive ruling on Amend II since ratified in 1791.

[Friendly Bear]

quote:Originally posted by Conan71

Here's the WaPo story if anyone wants it in layman's terms []:

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062600615.html?referrer=email

This is a landmark. First conclusive ruling on Amend II since ratified in 1791.

Lock and Load!

[]

[rwarn17588]

quote:Originally posted by Friendly Bear

quote:Originally posted by Conan71

Here's the WaPo story if anyone wants it in layman's terms []:

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062600615.html?referrer=email

This is a landmark. First conclusive ruling on Amend II since ratified in 1791.

Lock and Load!

[]

And don't shoot yourself in the foot. [}:)]

[FOTD]

quote:Originally posted by cannon_fodder

Just forcing an issue.  Most people would see the fault in removing protection for that right, even if they agree with the sentiment.  But for some reason, the trade off of rights for a sense of security has become popular lately.

Rumor mill has the ruling out tomorrow with Scalia writing the majority opinion.  Expect many concurring opinions, several dissents, and perhaps a plurality if they paint with a broad brush.  The latest I heard is the case is being delayed to reword the Scalia opinion to get a firm majority or even a unanimous decision, with concurring opinions expanding the opinion.

We shall see...  it's been about 80 years in coming.

 This is why we need more progressives on the Supreme Court.

[cannon_fodder]

What is why we need more progressives?  That statement made no sense when related to the quote you included.  Are you implying that we should have more Justices trading freedom for the illusion of security, that's a pretty odd way of stating it and a worse way of making the point.

Meanwhile, by "progressive" you mean liberal.  Why not just say what you mean?  Progressive simply means favoring change - well, this court changed the DC law today.  How very progressive.   If you mean striving for betterment, then it is an open statement of opinion and basically worthless (could mean wanting ultra religious judges or transsexual ecologists).

Do you have anything to say about the actual decision, like maybe why you logically or jurisprudentially oppose it?  Or just a quip and more on?

[FOTD]

What did you expect from the Supreme Republican Court?

There are numerable reasons for a progressive court. Just this past week they let the oil industry off the hook for a disaster they should have been held accountable. They gave us Bushco.....the list goes on.

This decision will set cities back when the war on terrorism comes to our streets ... and this terror will not be the fight by religious fanatics.

so much for justice...

[rwarn17588]

quote:Originally posted by FOTD



This decision will set cities back when the war on terrorism comes to our streets ... and this terror will not be the fight by religious fanatics.

so much for justice...

Oh, horsesh*t.

Lord knows that I've been a critic of Justice Scalia before. But his majority opinion in this matter is well-thought-out and prudent. It basically says that Americans do have a right to carry arms, but the right is not absolute. In other words, licensing of guns and other common-sense regulations do NOT violate the Second Amendment. I find it impossible to quibble with that reasoning.

And even though I've never hunted, I'm at heart a country boy and have known hundreds of hunters in my lifetime. (Hunters also are among the biggest environmentalists, but that's another topic.) I find it silly to have such onerous gun regulations that a fellow can't even go dove-hunting on the weekends.

So I don't have a problem with people having guns as long as they're properly licensed, screwballs and crooks aren't buying them, and background checks are made.

And if anyone wants to pass on some deer sausage this fall in gratitude for my support of the Second Amendment, I'll gladly accept.

[]

[cannon_fodder]

quote:Originally posted by FOTD


Something worthless

So that's a no - you don't have a comment on the merits of the decision, just worthless ramblings.

For Tulsa and all but 3 cities in the nation there will be no effect from this ruling.  So why would we all of a sudden see a drastic change all of a sudden?  And what does it have to do with religious fanatics?

Not sure why I respond to you, 90% of your posts lack substance.