"Now, of course this would not be the case if the text or original intent (or original "meaning") pointed unequivocally in one direction or the other."

Nonsense. Both the text and history are overwhelmingly on the individual rights side in this case. The reason we don't expect this avalanche of evidence to have much effect, is because the 'Justices' who are inclined to strike the 2nd amendment down aren't originalists.

They won't be trying to honestly determine what the 2nd amendment means, they'll be trying to determine what they can get away with SAYING it means.
 

Brett. please show me the language which is "overwhelmingly" on the side of individualism. I can think of only one word which might confer an individual right, yet many more that point toward the collective rights view. From a strict textual standpoint, I believe you have it backwards.
 

From a strict textual standpoint, explain to me how a "right of the people", a term used elsewhere in the Bill of Rights, and everywhere else it occurs understood in individual terms, can be other than a right, of the people. And how "shall not be infringed" can be consistent with it's almost total obliteration. Things are "infringed" when you BEGIN to attack them, West, not when you finish.

Collectivism wasn't even a concept at the time the 2nd amendment was written, the notion of a "collective right" is a complete anachronism. The notion of the 2nd amendment guaranteeing anything but an individual right was an invention of 20th century gun controllers, groping around for an excuse as to why their ambitions weren't unconstitutional.
 

The District's argument that it does not "ban all firearms for use in home defense" is literally true, but misleading. The District requires all non-banned firearms to be kept locked. From a self-defense against criminals point, this requirement will, in some cases, result in unavailablity of a firearm for a home-defense purpose.

.

But at bottom, the Second amendment is less about home-defense and more about whether a free people have the right to throw off their current government (by force if necessary); as they did with a Declaration of Independence in 1776.
 

Even if the SCOTUS originalists believe the Second Amendment grants individual versus collective rights, they may have some concerns in so declaring because of conscience: What might result from such a determination? I think Brett's got both thumbs on the revisionist scale of history he is reading from.
 

It might be useful to review the question before the Court:

"Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes."

The court does not have to reach the purposes for which a firearm may be borne. Rather, the issue is whether there any limits on "the right of the People to keep/own ordinary arms guaranteed by the Second Amendment.

Even if you look at the opening clause as a limiting provision, there is nothing in that clause which bars the ownership of ordinary arms, which were commonly used in and often required by law to be owned for militia duty.

In order to reach DC's arms prohibition position, one has to write "People" out of the Second Amendment and insert "States."
 

Brett.. I did not intent to argue that the Second Amendment does not contain an individual right. I think it does, to an extent. But rather, to point out that saying it is "overwhelming" is quite a stretch.
 

Even if you look at the opening clause as a limiting provision, there is nothing in that clause which bars the ownership of ordinary arms, which were commonly used in and often required by law to be owned for militia duty.

Baghdad, the Bill of Rights was not meant to bar the People from doing things, it was meant to protect the people from their government. In the case of the 2nd it appears that people have the right to own arms, but the government is also allowed to limit that ownership to people who belong to militias (ie. National Guard). I can't imagine how an "originalist" or a "literalist" could see it any other way.
 

bb:

The militia at the time of the ratification of the Constitution was considered to be an armed citizenry. An organized and professional militia such as today's national guard was called a special militia and was just as disfavored by the Founders as a standing army.

The term "well regulated" during that period of time simply meant disciplined.

The term "free state" did not mean a particular political state, but rather a free people.

Consequently, because militia = the People, there really is no conflict between the two clauses of the Second Amendment.
 

The argument that the second enshrines a limiting clause on the prohibition on infringing the clearly stated "right of the people to keep and bear arms" misreads the text of the amendment at its basic level. The primary clause of the sentence is "the right of the people to keep and bear Arms," which "shall not be infringed." It is not "the right of the people to keep and bear arms only in the context of a government-regulated militia shall not be infringed," and an interpretation that reads this meaning into "a well regulated Militia, being necessary to the security of a free State" is a bit of lexical gymnastics.

The fact is, from a practical standpoint, the collectivist interpretation effectively limits gun ownership to joining the national guard. From an originalist standpoint, whether or not the purpose of individual ownership was for self-defense from private individuals is immaterial; the framers cared about the people protecting themselves from tyranny (as is clearly stated in the text of the amendment itself). To limit the second to government-sponsored ownership in service of government is to read this meaning (and the second) right out of the constitution altogether. The counter-argument - that the "tyranny" was the British government and the second is only designed to prevent invasion from foreign powers - is unsupported by any evidence and unsupportable on a common-sense level.

Please explain what rights we have left if there is no individual right to gun ownership for any purpose other than belonging to the National Guard?
 

I've yet to find even one observer of the Court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single Justice in the case . . . just as in most other constitutional cases...

Given the lack of textual or historical support for the "collective right" position, I can see why DC and supporters of firearm prohibitions might hope that would be the case.

However, the sheer volume of arguments based on text and original intent by a wide array of attorneys and scholars belies that argument. I doubt they are all wasting thousands of hours and their limited space to make argument purely for window dressing. It appears that they share the quaint notion that a majority of Justices might actually read the Second Amendment before attempting to interpret it.

Heaven forfend!
 

The term "well regulated" during that period of time simply meant disciplined.


Ignoring for the moment that the rest of your claims are completely full of crap, by itself that is enough to give the government the ability to restrict gun ownership.
 

Although I do not think the Court will reach the issue of the purposes for which the People may bear arms under the Second Amendment, I would note that several state constitutions have guarantees of free speech which have preamble clauses like the Second Amendment which only discuss one reason for free speech. Courts have not held those preamble clauses to limit the free speech right to the subject of the preamble clause, but rather hold that the preamble clause simply offers a non-inclusive example of the protected speech.

The Second Amendment should be interpreted the same way.
 

bb:

Although I tend to believe that the term "well-regulated" was simply aspirational language unnecessary to the interpretation of the right, a reasonable textual argument can be made that the government could condition the right to keep and bear arms on training in how to use those arms.
 

Although I tend to believe that the term "well-regulated" was simply aspirational language unnecessary to the interpretation of the right

Of course you do. If you ignore what the ammendment actually says, it can mean anything you want.
 

Collectivism wasn't even a concept at the time the 2nd amendment was written, the notion of a "collective right" is a complete anachronism.

You've made this assertion before. It's so utterly ahistorical as to qualify as absurd. The concept of individual rights was quite new in the 1700s; collective rights had been the focus of society for hundreds, if not thousands of years. Obvious examples include the corporate privileges of medieval cities; the privileges granted to Jews; tolerance of specified religious dissenters; guilds; and many others.

More fundamentally, the core right of republican government -- "the right of the people to alter or abolish it" -- is inherently collective.

The fact is, from a practical standpoint, the collectivist interpretation effectively limits gun ownership to joining the national guard. From an originalist standpoint, whether or not the purpose of individual ownership was for self-defense from private individuals is immaterial; the framers cared about the people protecting themselves from tyranny (as is clearly stated in the text of the amendment itself). To limit the second to government-sponsored ownership in service of government is to read this meaning (and the second) right out of the constitution altogether.

This misses the profoundly state-oriented view of the Founders. They were not interested in individual reactions to tyranny. As I pointed out above, that is a non sequitur. They wanted to protect a collective right, one organized through the states. What the 2d A does is protect the power of the states vis a vis the federal government. If states want to regulate that right away, that's their problem.

Of course, the District of Columbia is not a state. The analysis would change depending on whether federal territories can have militias. There's no textualist or theoretical support for that, but there may be historical support (I don't know).
 

Those originalists who think the text of the Second Amenment is so clearly individual rather than collective (or something else?) probably can't understand why so many briefs have been filed with SCOTUS and why so many trees had to be cut down for the articles on both (or all three?) sides of the matter before the Court. These simple textual originalists must think everybody else is out of step with them on what is plain to them.

Whatever the SCOTUS decision, the reactions to follow, from all sides, will cut swaths through many forests. Perhaps few of us will be satisfied with the decision.
 

If you read Federalist #46 which was by James Madison you will find:

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

The term "militia" referred to armed citizens. In the second amendment, it says "the right of the people to keep and bear arms shall not be infringed." It didn't say the right of the states to arm a militia.

My understanding is that "Well-regulated militia" was referring to citizens who are armed and capable of being an effective force. "Well-regulated" at the time the Constitution was born, referred to the property of something being in proper working order. A clock might be well-regulated meaning that it keep good time. It didn't mean that the clock was regulated by the government.

If the 2nd Amendment is now obsolete, then amend the Constitution to repeal it. Don't pretend that its meaning is other than what the framers intended.
 

This misses the profoundly state-oriented view of the Founders. They were not interested in individual reactions to tyranny. As I pointed out above, that is a non sequitur. They wanted to protect a collective right, one organized through the states. What the 2d A does is protect the power of the states vis a vis the federal government. If states want to regulate that right away, that's their problem.

You did not answer the question posed at the end of my "non-sequitur." Assuming your reading of the second is correct and that the constitutional definition of "the people" is limited to "the people as they are empowered and regulated by being citizens of a state militia," what right, exactly, does the second amendment afford "the people"?

On a related note, how does this square with post-civil war court decisions on federalism in general, particularly with regard to sweeping federal authority as denoted in the commerce clause? Would, under your reading, a state law allowing non-federal military state-militiamembers to have fully automatic weapons trump federal regulations banning such weapons?

Under the collectivist interpretation, I just can't see any way to articluate a single affirmative right afforded by the second. And that leads to the commonsense determination that any reading which abrogates the existence of the amendment and the rights conferred therein must be incorrect. Please address this point, lest you be deemed to have ceded it.
 

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

It takes some pretty serious pretzel logic to pretend he's not describing the current National Guard.
 

The term "militia" referred to armed citizens.

Actually, the militia consisted of a fairly narrow class of citizens. From the Militia Act of 1792:

"each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia".

All those qualifying phrases end up eliminating a lot of people. And that's before we even get to the question of whether blacks were citizens.
 

Assuming your reading of the second is correct and that the constitutional definition of "the people" is limited to "the people as they are empowered and regulated by being citizens of a state militia," what right, exactly, does the second amendment afford "the people"?

That the new and more powerful federal government they were then creating would not infringe the local rights of the states when it came to arming the militia. This cuts both ways: the states might very well have wished to arm more citizens than the feds wanted, but they also may very well have wished to arm fewer. That was the case in the Southern states, which wanted to preserve local control over both free blacks and slaves.

On a related note, how does this square with post-civil war court decisions on federalism in general, particularly with regard to sweeping federal authority as denoted in the commerce clause? Would, under your reading, a state law allowing non-federal military state-militiamembers to have fully automatic weapons trump federal regulations banning such weapons?

That's a fair question, and it's a difficult one because you've got potentially inconsistent Constitutional provisions. My inclination is that the states would be free to do as you suggest, but under Raich I'm not at all sure the SCOTUS would agree. In any case, I'd have to give it more thought; this is off the top of my head.

Under the collectivist interpretation, I just can't see any way to articluate a single affirmative right afforded by the second.

I think it's critical, in understanding the original expectations for the BoR, to remember that they weren't designed to control the states, they were designed to limit the federal government. That's the whole point of Barron v. Baltimore. In some sense, the various amendments served as structural limitations on the power of Congress under the necessary and proper clause.

Now, we don't think of them that way today. But if you read, for example, the Kentucky Resolution, Jefferson objected to the Sedition Act not because it violated an individual right, but because Congress had "no power". That's the point of Leonard Levy's criticism of Jefferson as being perfectly willing to encourage state level prosecutions for sedition.

The new Constitution gave to the federal government considerable control over the militia. The states had traditionally had that control; they were jealous of the new federal powers and wanted some assurance that their own would not be eliminated. What the 2d A did was provide that assurance. It guaranteed that decisions regarding arms would be made at the state level rather than at the federal level. As I noted above, that was of particular importance to Southern states worried about (in their typically euphemistic way) "servile rebellion".

I should add a caution here that I've made in the past. I'm NOT an originalist. As far as I'm concerned, what the Founders thought about the 2d A shouldn't and doesn't control what the Court decides today. I am, though, interested in the history of what they thought and why, and I think it's important to understand this. Since I have no dog in the particular fight, I think I can be objective about it.
 

My inclination is that the states would be free to do as you suggest, but under Raich I'm not at all sure the SCOTUS would agree.

I tend to agree that Raich doesn't help the case for the states in the hypothetical I invented, but the key difference would be that here you'd at least have a constitutional prohibition on congressional regulation, whereas under (a simplified explanation of) Raich it was a question of a state statutes conflicting with federal regulatory power under the commerce clause. As a general rule of construction, wouldn't the second trump preexisting regulatory authority found elsewhere in the constitution (and any conflicting statutes enacted thereunder)?

I think it's critical, in understanding the original expectations for the BoR, to remember that they weren't designed to control the states, they were designed to limit the federal government. That's the whole point of Barron v. Baltimore.

But in this case, we're not talking about a state regulation. The second's limitation is on the federal government; here we have a federal territory where no opportunity for the "militia" action putatively enabled by the second is afforded. Therefore, under the very close reading that collectivists advocate, there is no right afforded the citizens of federal territories by the second amendment. I keep coming back to this point, but I'm not satisfied by any answer I've received - this reads the second amendment completely out of the constitution (at least with regard to citizens of no state), which is something that I cannot imagine (and for which there is no evidence that) the framers ever intended.

With regard to states, all this ignores the fourteenth amendment, and the possibility of incorporation (not a foreclosed possibility by any means). The problem is the feds are much stricter about their gun regulations than are the states, which does seem to give rise to the earlier-mentioned hypothetical (and the possibility that an activist state government could indoctrinate every citizen thereof into the "militia" to circumvent federal regulations). Indeed, what is to prevent a state from "militarizing" and abrogating all federal regulations pertaining to "arms" under the collectivist reading? An individualist reading is, in this respect at least, more temperate in its effect.
 

shag from brookline said...

Those originalists who think the text of the Second Amenment is so clearly individual rather than collective (or something else?) probably can't understand why so many briefs have been filed with SCOTUS and why so many trees had to be cut down for the articles on both (or all three?) sides of the matter before the Court. These simple textual originalists must think everybody else is out of step with them on what is plain to them.

Not at all. It takes far more trees to give reasons why a Court should ignore the text than it does to simply discuss the meaning of the text.
 

It takes far more trees to give reasons why a Court should ignore the text

Like you did here?

Although I tend to believe that the term "well-regulated" was simply aspirational language unnecessary to the interpretation of the right
 

It appears from the oral argument questioning as presented over at Scotusblog that Kennedy was very active in the hearing and made it clear that he assumes that the main clause of the Second Amendment guaranteeing the right is controlling and the Second Amendment was meant to be a supplement to the militia clauses and not controlled by them.

Thank heaven! It does not appear that the Supremes are going to reduce the Bill of Rights by one amendment.
 

By the way, the idea that the Founders intended to allow firearms for the purpose of self defense is completely absurd. Anyone who has fired a musket quickly realizes that a club or sword is a far more effective weapon for self defense.
 

The Bill of Rights originally only protected individual rights from attack by the federal government. However, after passage of the Fourteenth Amendment, the Constitution also defended individual rights from attack by state and local governments.

It is generally accepted that the First Amendment protections apply to state and local governments because of the Fourteenth Amendment. If that is the case, then the Second Amendment would apply as well.
 

It is generally accepted that the First Amendment protections apply to state and local governments because of the Fourteenth Amendment. If that is the case, then the Second Amendment would apply as well.

Not quite. Unlike six other BoR amendments, the second has never been incorporated via the due process clause. Therefore, it doesn't apply to the states, as of yet. There are a number of legal scholars who have argued that it should be incorporated, as you said, but the reality is that there really aren't many state and local statutes that presume to restrict firearms in the sweeping manner of the DC or federal statutes, so there hasn't been a good case for incorporation before the courts.

However, in this case, the issue isn't whether the second applies to states, but whether a federal jurisdiction which bans handgun possession has violated the constitution. Therefore, Barron has no impact on this case, and incorpoaration is not at issue.
 

If that is the case, then the Second Amendment would apply as well.

# posted by cbrtxus : 2:16 PM

Unless the 2nd ammendment is meant to protect state militias from the feds. Then it doesn't apply at all.
 

West, the Bill of Rights consists of the first ten amendments to the Constitution. Can you point to any of the other nine amendments that are not aimed at protecting individual rights.

For example, here is the first amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Notice the use of "right of the people" in the first amendment.

In the second amendment it says:

"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."

The first part of the sentence provides only a reason that the right of the people to keep and bear arms shall not be infringed. If the intention was that there only be one reason, they would have said so. If the intention was only to permit the states to organize a regular militia, it makes no sense that they would use the phrase "right of the people."
 

Mr. Lederman -

You argue that 14th Amendment due process could not be the source of such a right as Heller claims for himself, because the District is not governed by the 14th Amendment. All of this is true. However, what of the 5th Amendment, the due process clause of which is virtually coextensive in its meaning. Has it been suspended in the District? Or is there some other reason why only the 14th amendment can supply these rights, while the 5th cannot?
 

Mr. Field -

Of what relevance is it that the Bill of Rights, when drafted, was not meant to impose any limits on the acts of the several states? While that is undoubtedly true, the Union has changed much since then. Moreover, it is well settled that the ratification of the "civil war amendments," especially the 14th Amendment, has altered the balance of power between individual, state, and federal government such that many of the same limits on the Federal government's power to invade individual liberty must also curtail the power of the several states to do so.

I see it as being relevant for several reasons, but not those which you anticipate.

First, it will mean that whatever the court decides about an individual right today, it will not have drastic and sweeping consequences for the 50 states and their range of minimal to substantial gun restrictions. The Supreme Court held that whatever the 2nd Amendment meant, it was not "incorporated" into the 14th Amendment due process clause. Even if the court now determines the right to be an individual right, there would still need to be a determination whether or to what extent that binds the several states.

Second, because the bill of rights was concerned with the individual-federal government balance of power, it makes it less likely that the right the second amendment purports to confer is "collective" or belongs to "the states." Three provisions in the first 11 Amendments have anything to do with the state. Seven of the first eight clearly confer individual rights. It just does not make much sense to me that somehow, in the middle of those first eight, the framers snuck in a right that belongs only to the several states, not their citizens as individuals.

But, if you torture the text enough, you can get it to confess almost anything.
 

Alfred:

The fact is, from a practical standpoint, the collectivist interpretation effectively limits gun ownership to joining the national guard.

Not at all. The Second Amendment doesn't prohibit gun ownership to anyone.

Please explain what rights we have left if there is no individual right to gun ownership for any purpose other than belonging to the National Guard?

Oh. I see. Since I don't have a gun, I should just STFU (and praise Ba'al or the deity du jour) too then?

Cheers,
 

cbrtxus:

A clock might be well-regulated meaning that it keep good time. It didn't mean that the clock was regulated by the government.

A clock being "well regulated" means, well, it was being regulated well. So perhaps you can elucidate who or what would be doing the regulation of the militia if not the gummint. Entropy? Stochastics?

Cheers,
 

Bartbuster, the second amendment says:

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.

Are you really trying to argue the right of the people to keep and bear arms would not be infringed if the government attempted to limit that right to only those citizens belonging to a select militia or the National Guard?

I suspect that the word "infringed" had about the same meaning when the Constitution was drafted. (1) disobey or disregard something. (2) encroach on somebody's rights or property. If the intention was that it could be infringed, then there would have to have been an "accept when..." added after “infringed.” The well regulated Militia part is a reason why the right of the people shall not be infringed rather than an exception to that right.

Read Madison in Federalist #46. I don't think that anyone could read that and believe that Madison would intend that "well regulated Militia" would mean a select Militia or the National Guard. Or that Madison would have supported a second amendment that spoke to a collective right rather than an individual right to keep and bear arms. Also, none of the other nine amendments that constitute the Bill of Rights defend only a collective right as opposed to an individual right.
 

Are you really trying to argue the right of the people to keep and bear arms would not be infringed

No, I'm saying it would be infringed in a manner detailed by the specified qualifier.

The 2nd is the only ammendment where there is an explanation for why the right is needed. One would expect that means that the explanation is significant.
 

Not at all. The Second Amendment doesn't prohibit gun ownership to anyone.

Deliberate misreading aside, this misses the point. The second actively purports to confer the "right to keep and bear arms." The lack of prohibition of an act is not equivalent to enshrining the right to do the act.

By your logic, if the government claimed the legal authority to shut down political speech based on content under the first amendment basis that free speech is only for the press ("becuase it's in the context of the amendment!"), when you complained that "if this is the case, we have no rights under the first amendment," the government could simply respond, "nonsense - the first amendment doesn't prohibit free speech."

Oh. I see. Since I don't have a gun, I should just STFU (and praise Ba'al or the deity du jour) too then?

A calculated misinterpretation of statements does not make for a strong argument. Try re-reading what I'd said, and insert "under the second amendment" after "rights". Then come back and join the conversation on the same level with the rest of us.
 

Divining questioning is always a hazardous exercise, but there may be up to 7 votes finding an individual right. From there it gets tricky.

It appears that 1-2 of the libs may find a nominal individual right, but could attempt to apply a rational basis standard to preserve the DC prohibition.

Kennedy and Roberts do not appear to believe that the Court needs to set a standard of review because a firearm prohibition would fail any standard of review for a right to keep arms. Alito is more of an incrementalist and would probably concur.

Scalia appears to be leaning toward applying the same strict scrutiny applied to the First Amendment. I would think Thomas might concur.

The Kennedy and Roberts position offering a narrow ruling and punting the hard stuff down the road will probably prevail.
 

Alfred:

First, get a sense of humour. You'll live longer.

[Alfred]: The fact is, from a practical standpoint, the collectivist interpretation effectively limits gun ownership to joining the national guard.

[Arne]: Not at all. The Second Amendment doesn't prohibit gun ownership to anyone.

Deliberate misreading aside, this misses the point. The second actively purports to confer the "right to keep and bear arms." The lack of prohibition of an act is not equivalent to enshrining the right to do the act.

What does that have to do with my objection to your statement?


...

[Arne]: Oh. I see. Since I don't have a gun, I should just STFU (and praise Ba'al or the deity du jour) too then?

A calculated misinterpretation of statements does not make for a strong argument. Try re-reading what I'd said, and insert "under the second amendment" after "rights". Then come back and join the conversation on the same level with the rest of us.

I'd think that it would be your job to insert the language that you think should be in your speech. Why you insist that I do so is beyond me, unless you think that perhaps I might make a better argument....

Cheers,
 

Hey, gang, is it possible that each Justice may offer a separate opinion? The Second Amendment could become a blogger's annuity, divining the thinking of the Justices. They may disclose nine (9) differing versions of originalism. Which Justice will opt for Originalism 101 (original intent)? Which for original meaning? Which for original understanding? Which for original expectations? Which for original du jour?

Does anyone think that any of the Justices (or their clerks) will have actually read all of the briefs that have been filed? If anyone out there has read them all, please give us an idea of the time required to read and digest so many briefs, translating the time into the billable hours that we all understand.
 

shag:

The Justices actually seemed to be on top of the issues in the case. Providing what is essentially the first substantive interpretation by the Supreme Court of an amendment in the Bill of Rights is an amazing opportunity some two centuries after the fact and has to be pretty heady stuff even for Supreme Court justices.
 

I was on jury duty until I got excused a little while ago. I now have more time to respond to some of the issues.

Alfred asks whether it makes sense to interpret the 2d A in such a way that it has no actual application today. That's what we've done with other provisions (3d A, privileges and immunities, to name 2), so I don't think such a result is foreclosed, even if I would try to avoid it. I will say that the original justification for the 2d A -- protecting the power of states vis a vis the feds -- got settled at Appomattox. That reasoning can't be used any more.

Let me, without trying to respond to individual points, explain how I would analyze the 2d A issue in Heller.

First, Alfred is quite right that incorporation is not at issue because DC is not a state and thus not affected by the 14th A. At the same time, its status as federal territory raises (to me, anyway) the issue whether federal territories can have militias. The text of the Constitution seems inconsistent with that, as do the justifications for the militia given at the founding (states rights). It may be, however, that there was or is a practice of organizing militias in federal territories. I simply don't know the answer to that.

Second, if there is no militia in DC, then under a collectivist interpretation of the 2d A, there'd be no reason to bar the feds from seizing all weapons held there. They couldn't be used for a militia anyway.

Third, I don't believe this ends the inquiry. Heller has also raised a right of personal self-defense. I don't buy that right as among the penumbras of the 2d A, but it does make a good deal of sense as a substantive due process right. The suggestion above about using the 5th A makes sense to me and would, IMO, be a better argument.

Fourth, given the original justification for the 2d A (states rights), it doesn't make any sense to "incorporate" it. That assumes there is an individual right, which begs the question.

Fifth, the claim has been made that other provisions of the BoR refer to individual rights. I've never been impressed by this argument (even if it were true). Different provisions can simply be read different ways. There's no rule that says we have to read the 2d A the same way we read the 4th (and I'd assume the proponents of individual gun ownership would scream bloody murder if the courts eviscerated the right to bear arms the way they have the rights of search and seizure).

Sixth, there are, in fact, collective rights in other provisions of the BoR. Just to pick two obvious examples, the right of "the people peaceably to assemble" is, by definition collective; one person cannot "assemble". In addition, the ban on Congressional laws affecting establishments of religion actually protected the existing establishments in MA and CT. IOW, it protected the collective power of those states to form establishments (again, inherently collective).
 

A gun kills someone in this nation every 18-1/2 minutes. That comes to a 9/11-scale loss of life every 40 days. Oceans no longer protect us -- from ourselves.

What puzzles me is what "arms" means. If rights against tyranny are the nub of the matter, the 2nd amendment enshrines a land of Unibombers; anything less is fantasy. If originalism's the key, it's down to muskets. If it's a question of personal self-defense, the crooks control the ratchet -- probably not the Platonic Guardians we signed up for.

I don't see why, if it's so bad for our Constitution to be a suicide pact, it's okay for it to be a homicide pact.
 

If it's a question of personal self-defense, the crooks control the ratchet -- probably not the Platonic Guardians we signed up for.

Like all rights, personal self-defense is subject to reasonable regulation. That means the usual rules apply, same as they do now.

Nor does it mean, IMO, that people can carry arms in public as a matter of right. They probably can keep them in their houses as such.

I don't see why, if it's so bad for our Constitution to be a suicide pact, it's okay for it to be a homicide pact.

Great line.
 

Alfred asks whether it makes sense to interpret the 2d A in such a way that it has no actual application today. That's what we've done with other provisions (3d A, privileges and immunities, to name 2), so I don't think such a result is foreclosed, even if I would try to avoid it.

The Slaughterhouse cases form what is arguably the most disingenuous precedent in the legal history of this nation. It is not, to my knowledge, an example that has been followed in any case, and as I'm sure you know is widely decried as a terrible decision in legal circles (at least in the ones I'm allowed to sit outside and listen in on).

I can't pretend to be a 3d amendment scholar, but a brief search didn't reveal many cases that would fit the bill for your description. I've got to say, I can't think of too many examples of when citizens are forced to quarter troops in their private buildings, so maybe it's working after all?

In any case, "it's been done once or twice" doesn't really overcome the hurdle that reading rights out of the constitution is a highly disfavored exercise. Couple this with the fact that, under a simple english-major reading, "the right to keep and bear arms, shall not be infringed" is not modified by the "militia" clause, and the bevy of legal scholarship across the political spectrum arguing that the second requires an individual right, and I don't see how you get 5 justices to sign on to collectivist thinking on this issue.

And that's for the best, from a constitutional and practical standpoint.
 

"Like all rights, personal self-defense is subject to reasonable regulation."

That's the real question: What's "reasonable"? For my part, when somebody proposes to regulate intrinsically harmless behavior, such as mere possession of an object, in order to merely inconvenience wrongdoers, restricting the rights of hundreds or thousands for every wrongdoer impacted, we're not talking "reasonable" anymore.

The reasonable regulations all got enacted a long, long time ago. The dubious ones some time ago, too. We're well into unreasonable, and taking tentative steps into stark raving insane regulations now. Regulations which scarcely even pretend to have a rational basis.

The late, unlamented "assault weapon" ban, for instance, banned guns on cosmetic grounds! How can THAT be reasonable?

How can it be reasonable to impose a waiting period for buying your SECOND gun?

There are laws banning guns based on, wait for it, the melting point of the alloy they're made of.

Nope, it's not "reasonable" regulations that are at issue here. It stopped being about "reasonable" regulations a long, long time ago.
 

The Slaughterhouse cases form what is arguably the most disingenuous precedent in the legal history of this nation.

I'm the last person in the world to defend the reasoning of the Slaughterhouse Cases (the result, maybe), but it's been 135 years and the Court hasn't even come close to overruling them. Like it or not -- and I don't -- there is no privileges and immunities clause.

In any case, "it's been done once or twice" doesn't really overcome the hurdle that reading rights out of the constitution is a highly disfavored exercise.

Again, you'll get no argument from me. I'm just pointing out that other rights have been pretty much ignored. Try asserting the 9th A some time and see where that gets you. Or demand a 12 person, unanimous jury in a civil case in state court. Argue that the cops failed to get a warrant even though their search was reasonable. Try to enforce the republican form of government clause. Demand a grand jury in state court. Deny that you can be charged in federal court after being acquitted in state court of the same crime. It's not like the 2d A would be unique if it truly were unenforced.

under a simple english-major reading, "the right to keep and bear arms, shall not be infringed" is not modified by the "militia" clause

I know plenty of English majors, and even English teachers, who disagree. It never ceases to amaze me that people can say "it's obvious" in the face of rather overwhelming evidence that it's not obvious at all. Look at how many laws there are regulating guns. Do you truly believe all those people who voted for them are blind? Stupid?

You may very well be right, but if it were obvious -- like "each state gets 2 Senators" obvious -- we wouldn't need the Supreme Court to settle it.
 

Mr. Field -
You wrote:
>>>
Fourth, given the original justification for the 2d A (states rights), it doesn't make any sense to "incorporate" it. That assumes there is an individual right, which begs the question.

Fifth, the claim has been made that other provisions of the BoR refer to individual rights. I've never been impressed by this argument (even if it were true). Different provisions can simply be read different ways. There's no rule that says we have to read the 2d A the same way we read the 4th (and I'd assume the proponents of individual gun ownership would scream bloody murder if the courts eviscerated the right to bear arms the way they have the rights of search and seizure).
>>>

First, which "original justification" are you referring to in your fourth item? Tushnet's? I think you're assuming a certain resolution of a matter that is still subject to healthy dispute.

Second, I agree that the right to self-defense is probably a due process clause[s] right more than a second amendment right. In fact, if you want to get really traditional and conceptual about it, it's intangible personal property, since the right to self-defense is in fact a defense to a cause of action for a civil or criminal wrong. However, I find it hard to believe that anyone would demand a Takings clause analysis for the self-defense implications of a handgun ban.

The problem with a due process claim is the long-standing reluctance of the court to find unenumerated rights. However, the right to self-defense may well be in the penumbra of an enumerated right; this might make it slightly more likely.

Third, I must concede the obvious logic in your reply that "different provisions can be read different ways." And you are also right that it is not obvious what the proper grammatic parsing of the amendment is; anyone who tells you anything is "obvious" is selling a bill of goods. However, I have a marked preference for the interpretation that reflects the best social policy for the present day.

And now I will comment ever so briefly on some of those policy concerns.

There are three justifications often offered for the private ownership of deadly weapons.

(1) The individual right to use deadly force to protect the individual from the reasonably perceived threat of deadly force being used against him or someone nearby.

(2) The individual interest in pursuing an economic or recreational activity without government interference.

(3) The individual (or collective) interest in preventing or deterring government tyranny.

So, how do each of these rate?

(1) Self defense: It is good social policy to permit self-defense, but not to encourage it. This is a rule of law; if someone wrongfully injures you, you don't shift the costs of injury by wrongfully injuring them back; you use the legal process. Self-help is a last resort. However, a "perceived imminent threat of deadly force" - the only situation under which self-help with a firearm is appropriate, is necessarily (that is, by definition) a last resort situation. It has for centuries been acknowledged by the courts that self-defense is a legitimate defense to civil and criminal wrongs. Why should the state change course now?

(2) This has little to commend itself Constitutionally speaking. Economic and recreational activities are subject to any rational regulation that the state or federal governments dare dream up.

(3) This is the argument for which I have the least respect. As I just said in regard to self-defense, this is a rule of law, not of men; self-help is a last resort; the legal process should be our first resort. It is simply terrible social policy to suggest that an individual who is the subject of an abuse of rights by the government should resort to deadly force against government agents. it is even more ludicrous to think that, well-armed as the government is, the individual ownership of handguns, or any firearms available for private ownership, including the modest number of "destructive devices" legally out there with the blessing of the ATF, have any deterrent effect on government illegality.

The best deterrent for illegality by the government is the fact that, at least for now, a substantial amount of that illegality is actionable by the government. Consistent with the Jeffersonian version of the rule of law, acts of government are not above it. To that end, state sovereign immunity has been rolled back; we have Bivens and s. 1983 actions, punitive damages and attorneys fees shifting.

The great irony of the gun rights movements is those people who "cry bloody murder" when their gun rights are vitiated stand back and applaud as SCOTUS and a Republican congress rolled back the best way to deter illegal acts by government - which they did with brutal efficiency during the Rehnquist years.

If deterring tyranny is the policy objective, the average gun rights activitist has been INCREDIBLY misguided.

(But if this (3) is the "original justification," I am at a loss as to why it would be a "collective" right. It does not make sense to me - the constitution encouraging the states to arm themselves against the fed -- does that really pass a laugh-test?; the collectivization of the right


That irony notwithstanding, there are still good policy reasons for leaving the right alone - wherever you want to find it. I am willing to engage in instrumentalism with the Constitution, and to that end, I favor the resolution that serves the best policy. In view of the inability of the government to protect us from all kinds of civil and criminal wrongs, non-interference in the individual right to self-defense to me is sufficient justification to protec the rights of the denizens of the District from not being allowed to have handguns in their own homes.

Whether good policy or any text requires any more than that is another story for another day.


Two final notes:
(A) your example of assembly as another collectivizeds WAY off; yes, assembly by definition requires more than one person, but when illegal assemblers are prosecuted, it is the individual who asserts the invasion of his constitutional right; no collective body has to pass a vote ont he matter; therefore it is an individual right. Further the "collectivization" is not just the requirement that more than one person be needed as a threshold to the triggering of the right; as used in the current interpretation of the 2nd amendment, it means that a particular kind of state action is required.)

(B)
You wrote:
>>>
" I'd assume the proponents of individual gun ownership would scream bloody murder if the courts eviscerated the right to bear arms the way they have the rights of search and seizure"
>>>
The court has allowed the courts to eviscerate the right to gun ownership the way it has the freedom from unreasonable search and seizure, just in a different way. With search and seizure, they've eviscerated by chipping it to pieces with so many threshold characterizations, exceptions, and cleansing procedures (other than the one in the text itself) as to be all but meaningless. They have rended the 2nd amendment all but meaningless the other way, by staying silent.

And the activists have screamed "bloody murder" over it, for years. Ever listen to Chuck Heston? The thing is, unlike accused criminals who give the courts new opportunities to rewrite the 4th amendment every day, the gun lobby has been much more strategic. They've waited 'til the court was packed with GOP appointees. Of course, it has been that way for a long time, but it has taken until now to get GOP appointees unafraid to show unabashed political bias. The timing of the Heller suit is as much coincidence as the name of the plaintiff in the storied Virginia miscegenation law challenge. The time will never be better than it is now for a court ruling that enhances rather than diminishes the alleged right to own guns.

Unfortunately for those activists, the time may never be right. The most socially liberal judges Ginsburg and Stevens probably favor the right of the state to restrict gun ownership. The most Socially conservative judges (Scalia, Alito) favor the power of the government to do whatever it wants, short of summary execution, with rare exception. Thomas is the only judge who is a social conservative but might think that gun rights are more important than the state interest in criminalizing gun ownership. (See Staples v. U.S., 511 U.S. 600 (1994). Consequently, for the Judges who have already made up their minds before today, I predict 4-1 for reversal. That leaves 4 swing votes - enough to change the outcome for sure. However, I think it would be quite consistent with Roberts to side with Scalia, and for Breyer, Kennedy and Souter to be "scared by the statistics" on gun violence, and therefore defer to the state interest in regulating. Worse case scenario for the NRA is a 8-1 or unanimous reversal, and it's not that unlikely.

Given that gun rights advocacy is a minority interest with dubious ties to political participation, I cannot believe that the centrist judges will really get teary-eyed about (potentially) "eviscerating" the constitution, when there is so much noise being made about how dangerous guns are.

On the other hand, if Alito and Roberts vote consistent with prevailing GOP believes, and Scalia's psychic inquiry into the minds of the framers tells him to tear up, then there are 4 judges for affirmance, 4 against, and Kennedy becomes the true swing vote, as is often the case. If that's the case, there will be more pressure on Kennedy not to follow partisan politics, and his record in that kind of a political wedge is mixed.

So, to conclude, I think reversal is more likely than affirmance, but it's going to be interesting until the court actually rules. I do not think reversal reflects the best social policy; whether it reflects the best reading of the text is not as important to me - especially in a case like this, where the best reading is nearly impossible to pin down.
 

Shucks, Matt, instead of reversal, wouldn't it better salve the sensitive consciences of the Justices to kick the can down the road back to the Circuit rather going individual or collective or [insert third choice], the damned if they do and the damned if they don't choices? Besides, kicking it back may give them time to actually read and study the 69 briefs submitted to them. What's the rush? Besides, the District isn't a state and has no effective voice in Congress. I can just imagine in conference(s?) an originalist shootout and perhaps at some point some concern that the U.S. could become a nation of even greater violence with greater gun rights. Drawing the line, assuming an individual right, can take many years and many deaths to resolve. But, consider how criminal trial attorneys might employ self-defense to enhance their careers. Perhaps the U.S. prison population will increase even more dramatically. We could all live in gated communities with armed muscle for protection. Drawing the line after more than 200 years on the Second Amendment might cause a lot more drawing - of life and blood. A decision establishing an absolute individual right might replace the Dred Scott decision's place in SCOTUS history.
 

shag:

Hysteria does not become you.

DC's firearm prohibition laws coexist with a top five murder rate.

My nearby city of Colorado Springs has nearly complete freedom of firearm ownership with concealed carry and has 1/10th the murder rate of DC.

While we can debate whether concealed carry lowers violent crime as some studies have suggested, there is no evidence whatsoever that disarming the law abiding checks violent crime.

When the DC mayor claimed on the steps of the Supreme Court that the DC statute was responsible for lower crime rates in badly policed zoo he calls a city, I LOL.

I thought Heller got the best out of the exchange by noting that he works as an armed security guard to protect the likes of the mayor from his city's criminals, but is disarmed and prohibited from protecting his own family at home.
 

I know plenty of English majors, and even English teachers, who disagree. It never ceases to amaze me that people can say "it's obvious" in the face of rather overwhelming evidence that it's not obvious at all. Look at how many laws there are regulating guns. Do you truly believe all those people who voted for them are blind? Stupid?

You may very well be right, but if it were obvious -- like "each state gets 2 Senators" obvious -- we wouldn't need the Supreme Court to settle it.

You make a valid point, but I didn't say it was obvious, only that under a simple reading that the second half of the sentence is not modified by the first. There are many lingusitic scholars who have engaged in some very complex readings in order to justify the opposite conclusion. They are neither blind nor stupid, though I think they may be motivated less by a desire for the purity of language than a results-oriented approach (not that there's anything wrong with that, but let's call a spade a spade). And I for one will never argue that the second is well written, or even particularly clear, but there are simple ways, and there are complex ways to parse the tortured prose therein.

Here's the thing - what do we know about the canons of construction regarding complicated interpretations of constitutional/statutory language, when it IS obvious that a simple interpretation leads to a result that is at least as clear as the convoluted reading? I'll give you a hint - five of the justices yesterday seemed to prefer a simple interpretation...
 

I can imagine what the shorts (and other undergarments) worn in Colorado Springs might look like with the populace aware and apprehensive that just about anybody there might have a concealed weapon that might be discharged, accidentally or otherwise, including by someone under the influence, whether driving or walking. Of course, there may be "free riders" who don't carry concealed, with other bulges that might serve as a warning. But why not unconcealed out-of-the-closet carrying in Colorado Springs (just like the police)? Anyone for a posse comitatus?
 

shag:

Methinks you may have seen one too many gang banger movies. One generally carries a concealed weapon in a shoulder holster to avoid the risk of shooting off one's family jewels.

As far as the debate about concealed carry v. open carry, it is interesting to note that, during the first century of the Republic, folks did not piss their pants seeing someone carrying a firearm and legislators more often banned concealed carry because that was the preferred method of criminals. However, once we became more genteel and sensitive in the 20th century, legislators did not want folks carrying weapons openly and concealed carry became the preferred method.

So long as legislators allow at least one method of carry, the laws should not infringe upon the right to bear arms.
 

Matt, I agree with a great deal of your post, though I'm expecting the Court to affirm the DC Circuit. Just a couple of points:

First, which "original justification" are you referring to in your fourth item? Tushnet's? I think you're assuming a certain resolution of a matter that is still subject to healthy dispute.

A common argument made by anti-federalists in the ratification debates was that the new federal power over the militia (Art. I, Sec. 8, cl. 15-16) would interfere with traditional state control and eliminate the power of states to resist the federal government. The 2d A was, IMO, designed to reassure people that this would not happen.

But if this (3) is the "original justification," I am at a loss as to why it would be a "collective" right. It does not make sense to me - the constitution encouraging the states to arm themselves against the fed -- does that really pass a laugh-test?

It does seem ridiculous to us today, living as we do in a post-Appomattox world. It seemed perfectly normal in 1787-8. Even some of the Federalist Papers note the ability of states to use the militia to resist the federal government in extreme cases.

your example of assembly as another collectivizeds WAY off; yes, assembly by definition requires more than one person, but when illegal assemblers are prosecuted, it is the individual who asserts the invasion of his constitutional right; no collective body has to pass a vote ont he matter; therefore it is an individual right.

I absolutely agree that an individual can assert the right. So can an individual assert a 2d A right under a collective right analysis. It's just that in each case the exercise of the right must have taken place as part of a group.

You make a valid point, but I didn't say it was obvious, only that under a simple reading that the second half of the sentence is not modified by the first.

I agree that the 2d A can be read as you suggest. It can also be read the other way. Personally, I find the "militia" reading simpler and more natural, but I understand that others disagree.

Parsing the sentence, I think, has less to tell us about the meaning of the clause and more to say about the limits of textualism. The debate needs to be resolved in other ways: history, current practice, precedent, etc.
 

it is interesting to note that, during the first century of the Republic, folks did not piss their pants seeing someone carrying a firearm

Have you ever actually fired a musket? I have. It is more of a threat to the person attempting to fire it. The idea that the Founders intended firearms to be used for personal defense is utterly absurd.
 

So a woman hugging a genteel man in Colorado Springs bearing a concealed shoulder holstered weapon might not use the line: "Is that a pistol in your pocket or do you love me?". When will burlesque come to Colorada Springs where the men prove they're men by carrying shoulder holstered, concealed?
 

Mr. Field,

I hope you are right. I think it is clear from what I've written that I think the court should affirm, but often what I think the court should do, and what the court thinks the court should do, are different.

Two points of clarification (not contention):

First: What is "politically sensible" now, and what was "politically sensible" at the time of the framing have changed; I agree. And, unless it is purely a matter of linguistic ambiguity, I prefer the former control our decisions. I do understand where you are coming from that the pre-civil war ideas are very important in defining the real meaning of the text.

However, I still express skepticism about the idea that armed resistance to government was the preference of the framers. Even if - or should I say, even though - it was expressed by some, I have some doubts that are not yet overcome by the recent offerings on the history of the amendment.

Second, "collectivization" as you are using it is the "common-sense" meaning - a right that can be asserted as an individual, but only after a threshold circumstance (the grouping of individuals) triggers the possibility that the interests apurtenant to the right can be invaded.

I do not think that is what is meant by "collectivization" as proponents of the leading (but perhaps soon to be former) view of the 2nd Amendment use it. They consider a right "collective" in the sense of "the collective will of the people" - which, in context of a Republican form of government, means, the Government.

Under that interpretation of the right, the second amendment could only be asserted by an individual if he was part of a state-organized militia, prosecuted by the Federal government. In the pre-14th amendment context, where these rights were operative only against the Federal government, there's nothing incongruous about that.

However, "collectivizing" an individual right - in the second sense, today, would be a significant transmogrification of the right.

If I have erred, it is perhaps to look at collectivization in a "post-Appomattox" view that treats Fed-and-you due process as coextensive with Several State-and-you due process.
 

I still express skepticism about the idea that armed resistance to government was the preference of the framers.

That's stating it a little too strongly. I'd certainly agree that they didn't have any "preference" for armed resistance to government. They did, however, acknowledge that as a revolutionary right (as did Lincoln).

In the case of the Framers, IMO they did not think of this in individual terms or even in self-organized terms. That is, if there was to be a rebellion, it had to be organized and run by some authority, whether in the states or even by the social upper class. We sometimes see claims that they would have encouraged "militias" consisting of nothing more than a group of men gathered together for a purpose. I call this the "KKK theory" of the militia. It's utter nonsense; "well-regulated" meant "under tight control".
 

shag:

LMAO! You have a definite gift for humor.
 

bb:

Have you ever actually fired a musket? I have. It is more of a threat to the person attempting to fire it.

Try practicing.

The idea that the Founders intended firearms to be used for personal defense is utterly absurd.

While a musket would not replace a .45 pistol as my weapon of choice for self defense, it was a damn sight better than any alternative at the time and was used extensively for just that purpose on the frontier.
 

Whatever the court does - affirm or not - I doubt they will say that strict scrutiny is applicable to laws that prohibit access to firearms. But let's hypothesize that they do give it the old, "fundamental rights" treatment. What effect does that have on other state or federal gun control laws? For example...

- Those that prevent convicted felons from legally owning firearms?

- Those that prevent individuals outside of the law enforcement community from legally owning so-called "assault weapons?"

- Those that prevent gun makers from legally selling weapons that have not been "crash-tested" by state inspectors?

- Those that prevent individuals outside of law enforcement from owning or purchasing detachable box magazines capable of holding more than 10rounds of ammunition?

I would certianly hope that the first category would be well intact; the compelling state interest here is clear.

I would think that for the same cosmetic reasons that make assault weapons bans popular in states like California, the court would perhaps find a compelling state interest here as well - provided they do not look too closely.

The laws that require state approval of firearms models before they can be marketed, and the state laws prohibiting "high-capacity magazines" seem a little bit more suspect and a little bit harder for states to defend than other aspects of assault weapons bans or reasonable gun restrictions.
 

Imagine a remake of "The Graduate" and the scene where a business type at a party gives young graduate (played by a young Dustin Hoffman in the original) advice for his career. If SCOTUS decides the Second Amendment provides an absolute individual right, the "one word" of advice, instead of "plastics", might be "guns"! And if the young graduate had a law degree, his business card might read:

HAVE BRIEFCASE AND GUN; WILL TRAVEL

a la Palladin. Everybody will be carrying, everywhere, concealed, unconcealed. Even the Justices can be carrying; imagine the arsenal they could conceal under their robes. Imagine dissing at an oral argument before such a SCOTUS. "SMILE WHEN YOU SAY THAT COUNSEL!" Would Justice Thomas maintain his silence? Shooting from the lip is not as dangerous as from the hip. (No, I don't think any of the Justices are hip, or as we used to say in the early 1940s, hep.)

And further with the remake, Mrs. Robinson's seduction line to the graduate might be "I hope you're carrying for me."
 

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Shag, I doubt that the citizens of Colorado Springs are concerned or have reason to be concerned. In any state no matter what the law says, any criminal could be carrying a concealed weapon. Thinking that gun laws will assure that criminals don’t have guns is naïve. Have drug laws kept drug users from getting drugs? Criminals aren't inclined to obey laws no matter how many you pass. What works is putting them in jail when they commit a criminal act.

While an accidental discharge can occur when someone is handling a firearm ineptly, it isn’t likely to occur among folks licensed to carry. There is great emphasis during the training on safe handling of firearms.

I am most familiar with the Texas law. With a concealed carry license, I am required by law to keep my handgun concealed. A handgun in a holster isn’t going to accidentally discharge. I suspect that you know that such an argument is a red herring.

An citizen with a clean record has always been able to carry a rifle or shotgun in their car in Texas. Before the law was changed, carrying a handgun on or about your person except when actually traveling was illegal. Recently, that has been changed to allow anyone with a clean record to carry in their car as they want.

You cannot carry a handgun openly for self-defense except in your home, on your property, in your place of business, or on someone else’s property with their permission. Of course, those of us with a concealed carry license can carry almost anywhere in the state. That includes state parks and even the state capitol. An exception would be gun free zones. Only criminals take weapons into gun free zones which has been demonstrated a number of times tragically. Someone willing to commit murder apparently isn’t impressed by the signs.

In an urban environment, concealed carry makes sense. The bad guys don’t know who is defenseless and who is not. Grandma isn’t necessarily easy pickings any more. Open carry is fine for away from the cities. I think that in Colorado, open carry still doesn’t even require a license. But I think that municipalities can pass ordinances against it. There is also the possibility that an exposed weapon could be snatched by a bad guy.

In Texas and I suspect in most concealed carry states, one DUI will cost you your license or keep you from getting one. The folks with licenses commit violent crimes at a rate that is far below that of the average citizens.

Is your argument that everyone except the criminals should be defenseless? If so, I have to respectfully disagree.
 

Matt, your questions are exactly why I don't think it very important whether the Court holds that the 2d A creates an individual right. I guess I'm the only one who just doesn't much care either way.

The real issues are going to arise with respect to the level of scrutiny and the reasonableness of regulations. Those issues I do care about.
 

Maybe the answer is to have a "no fault" type insurance requirement (with appropriate limits) for those who wish to bear and carry arms. Granted, the premiums might be high but underwriting screening may get rid of the "bad guys." As for those who fail to carry such insurance, a form of punishment may be required, such as castration or its gender equivalent.

But the comparison of guns with drugs is not quite appropriate, except that drug dealers may be carrying guns. As for drug users, look at it from the viewpoint of libertarians. More law enforcement is necessary for getting the drug dealers and keeping drugs out of the country. Maybe gun dealers need to be better regulated. Much more can be said on the comparison if time permitted.

And consider what a cost/benefit study might reveal if there were an absolute right under the Second Amendment. Even if not absolute, where might the regulatory line be drawn to satisfy reasonableness or some other appropriate standard? Image how this might play out as legal beagles game the gray area. One side benefit, of course, is that it may result in full employment for us lawyers and control population growth at the same time.
 

Mr. Field -

Not so fast -- the issue of whether it's an individual right is not "unimportant." If the amendment creates no individual right, then all of this goes out the window - only rational basis review will apply to any state law that infringes on individual access to firearms. If there is no indvidual right, the court will have to reverse the lower courts.

Now, it may not be the real issue. Since the court seems convinced that it is an individual right, the next question is how important. This is probably more important. But the issue is relevant because if the court finds no individaul right - as Mr. Dellinger tried unpersuasively to convince them was the case - then The District wins, bar none. The court appeared not to bite.

The thing is, by not biting on the old Miller theory, the court is saying something significant. There was no authority stating that the right was individual. Now they are - in their own questions to counsel - assuming an individual right, and saying perhaps Miller was wrong.

So the real question in the case is going to be how much scrutiny, but it shouldn't be overlooked how big a shift in reading it is to assume an individual right interpretation.
 

Not so fast -- the issue of whether it's an individual right is not "unimportant." If the amendment creates no individual right, then all of this goes out the window - only rational basis review will apply to any state law that infringes on individual access to firearms. If there is no indvidual right, the court will have to reverse the lower courts.

We manage to do a lot of legislating regarding "fundamental individual rights". Think, for example, of how often accused criminals win search and seizure cases. Or how some categories of discrimination are treated. Or, for that matter, how the current Court treats the "right" to abortion.

I'm not saying you're entirely wrong, I'm just saying that the big issue is not calling a right "fundamental", it's deciding the scope of regulation which amounts to less than an "infringement". At least, that's how I see it.
 

Mr. Field,

I think your mixing two issues. This is constitutional law - "categories are everything." The nature of a provision in the constitution determines the scrutiny it will receive when litigated.

First, if a right is not an individual right, there is not going to be a justiciable controversy, most of the time. For example, the "republican form of government" clause creates no rights, and is never justiciable under ordinary circumstances.

If there is an individual right, but it is not a fundamental right, substantial interference with, or discrimination with repect to, that right will receive "rational basis review" under which even ridiculous legislation is tolerated.

IF a right is a "fundamental right" - a right chosen from a short list of enumerated and unenumerated rights, then substantial interference with the right triggers the "strict scrutiny" analysis of the 5th or 14th Amendment due process clauses.

Only certain rights trigger this application of the due process clause - rights that the court calls, "fundamental rights." The distinction between "fundamental rights" and all other rights came from U.S. v. Carolene Products 304 U.S. 144, (1938)(Stone, J., n. 4).

In _Carolene Products_, the court explained the cessation of the "Lochner doctrine" (see 198 U.S. 45 (1905). Under the erstwhile doctrine the court aggressively reviewed, among other things, state laws that provided defenses to outrageous contractual obligations on the part of groups with limited bargaining power. In the seminal case of the doctrine, the court struck down a New York labor law that prohibited bakery workers from being made to work more than 50 hours per week, because it violated he baker and bakery's "freedom of contract." In overruling Lochner, the Carolene Products court emphasized that future cases involing mere economic freedoms would receive cursory review, but that future cases involving "fundamental rights" would potentially receive more searching review. Subsequent cases cemented this official double-standard. See, Griswold 381 U.S. 479 (1965)(Douglas, J., defining a fundamental right to privacy, invalidating state law against; See, Loving v. Virginia (388 U.S. 1 (1967)(Warren, C.J.,invalidating state law against miscegenation because it violated the fundamental right to marriage); See, Williamson v. Lee Optical (348 U.S. 483 (1955) (Douglas, J., state law regulating optemetry was constitutional even if it was asinine).

The lower standard provides no protection at all to the individual right except in extraordinary cases where the court deliberately misstates the standard. See 517 U.S. 620 (1996) Romer v. Evans (Kennedy, J., purporting to apply rational basis test, finding state law passed for a discriminatory purpose infringing on no protected class and no fundamental right was unconstitutional); See Lawrence v. Texas, 539, U.S. 558 (2003) (O'Connor, concurring, applying substantially identical reasoning as Justice Kennedy did in Romer). Under the lower standard, normally, any state act that rationally relates to any legitimate state purpose is acceptable. Except when the review is misused as in Lawrence or Romer (and a third case, City of Cleburne), no inquiry into the actual purpose of a state act is done; the question is whether there is ANY hypothetical legitimate purpose for the act. The plaintiff bears the burden to prove otherwise. It is consequently impossible for the plaintiff to win.

Under strict scrutiny, the government bears the burden to justify that their act was narrowly tailored to a compelling government interest. At this level of review, it is nearly impossible for the government to win, except in extraordinary circumstances.

So the issue is, what rights get this higher protection?
enumerated rights (.e.g. most kinds of speech, jury trials in criminal cases, cruel and unusual punishment) and the famous unenumerated right to "privacy."

So, I am not sure what you mean by getting into search and seizure. It is not a "fundamental right" in terms of "fundamental rights due process." The court has always treated the 4th amendment as having its own requirements and remedies as far as government conduct is concerned. Fundamental or not, it is clearly an enumerated right, an individual right, which is justiciable, and has been incorporated into 14th Amendment due process.

In any case, there are two seperate issues - whether the right is individual, and whether the right is fundamental - or "other." If you look at the amicus briefs, much of the attention in this case has gone into urging the court to find that the right is not a fundamental right, even if they find it is an individual right. If it is a fundamental right, state regulation will be subject to the most searching justification. If it is treated like a mere economic right, then any state interference is constitutional, no matter how ridiculous or extreme.

Justice Marshall, for his part, always felt this structure was inadequate. He believed that the court needed to give itself the freedom to adjust the standard of review in each case according to the importance of the right and the degree of state interference. There were never a majority of takers for his position, although the court did agree with his solution in one odd case. See Plyler v. Doe, 457 U.S. 202 (1982) (denial of free public education to children of undocumented aliens lacked reasonable relatedness to a substantial state interest, and thus violated the right to a public education, which was not a "fundamental right" (Rodriguez, 411 U.S. 1 (1973)).

If the court affirmed, and found that there was an individual right, subject to higher scrutiny than rational basis review but not strict scrutiny, as urged in many briefs, they would essentially be applying a Marhall analysis. If they do, the late Justice who would have been solidly with Breyer, Ginsburg and Stevens, voting to reverse the lower court in this case will turn somersaults in his grave.

Or the court could affirm on the grounds that there is a fundamental right, and the state cannot meet the burden of showing a compelling interest.

However, if the court reverses or vacates, it will be for one of three reasons.
(1) There is no right at all. Circuit court is reversed, cases is remanded with instructions to dismiss.
(2) There is a right, but not a fundamental right. The circuit court is vacated and the case is (i) remanded with instructions to retry the case to determine whether the plaintiff can disprove the existence of a legitimate government interest OR (ii) remanded with instructions to find for the District, because there IS a legitimate government interest.
(3) There is a right, a fundamental right, but the state must be given a chance to prove it has a compelling interest and that the law represents narrowly tailored means.
 

Matt, I think we're using the term "fundamental" in different ways. I'm using it the same way Dilan did in the "is the right to bear arms a fundamental right?" thread. I'll quote him here:

"There's a distinction missed here about "fundamental" for purposes of incorporation vs. "fundamental" for purposes of strict scrutiny.

The right to bear arms is very likely so deeply rooted in our traditions so as to be fundamental. But it isn't "fundamental" in the sense that it permits almost no governmental regulation in the area, like free speech.

It's a fundamental right subject to a comparatively lower level of scrutiny."

This terminology may lead to some confusion, and perhaps you're right to resist it, but it's hard to avoid the problem -- most people think all rights protected by the BoR are "fundamental" in some sense.
 

"Guns don't kill people, people kill people." While this timeless mantra of the uneducated gun-lover reverberates in this country, I pray that the Supreme Court not only upholds the DC law but definitively states that the Second Amendment never provided a right to anyone to possess, own or use a handgun. If Justice Scalia or any person is so insecure in his manhood or humanity that he or she must append it with a gun, then we are all doomed to suffer at the hands of the gun. How many sons or daughters coming home late unexpectedly from a date or children playing in their home must we kill before we wake up from this national nightmare? Guns kill(period).
 

Mr. Field,

Ok, let's make sure we're on the same page. Dilan is suggesting that there may be a further distinction - what is a "fundamental right" in one case may not be in another, depending on what kind of case it is; that is, a 5th amendment fundamental right may not be a 14th amendment fundamental right. I don't think he's entirely correct about that (but I wouldn't say he's entirely incorrect). It's one of those "funny things." But it really doesn't have any bearing here. His concern was that the blogger was writing about the 14th Amendment, and this is not a 14th Amendment case. It is a 2nd and 5th Amendment case, only.

I am using it as the court has used it, roughly since 1939. I think Dilan is trying to also. I would be the last person to say that term-of-art legal characterizations are identical to their common sense meanings.

I was addressing where you wrote,
first,
>>>
Matt, your questions are exactly why I don't think it very important whether the Court holds that the 2d A creates an individual right. I guess I'm the only one who just doesn't much care either way.
>>>

and second,
>>>
We manage to do a lot of legislating regarding "fundamental individual rights".
>>>

My point is to clarify that what is, for purposes of either due process clause, a "fundamental right" is subject to very little state interference, and what is not an individual right at all, is subject to virtually any regulation, and that hence, the distinctions are still quite meaningful; but this is not a matter of how we characterize the distinction, but what characterization the court sees fit to give them.
 

"Maybe the answer is to have a "no fault" type insurance requirement (with appropriate limits) for those who wish to bear and carry arms."

Sold, I assume, by the same firm I got my no fault speech insurance from, that pays off if I should happen to lose a libel suit. Had to get it before I could legally talk in public, don'tcha know.

I am very tired of people who read Constitutional provisions with the attitude, "How can I work around this?"
 

Matt, I can't give any better response than to refer you to Prof. Balkin's latest post on Jacob Howard.
 

thanks so much i like very so much your post
حلي الاوريو الفطر الهندي صور تورتة حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه