Fascism in America took a shot to the gut last year, when the DC Circuit struck down Washington DC’s gun ban on Second Amendment grounds.
Now, the SCOTUS may take up the appeal.
See if you can tell what side the AP’s on?
Both sides uneasy: Deep inside Washington’s police headquarters is a library with floor-to-ceiling racks displaying 1,700 guns, from a World War II-era rifle to rows of automatic pistols.
Most of the weapons, used now for forensic research, were seized under a 31-year-old law in the nation’s capital that bars handgun ownership for nearly everyone except law enforcement.
But that ban was struck down by a federal appeals court this year, and now the District of Columbia is asking the Supreme Court to weigh in.
The writer doesn’t favor us with an explanation of what the stacks of guns seized from criminals have to do with the constitutional rights of the law-abiding, of course.
The writer is also historically illiterate:
A far-reaching case: The case represents the first time a federal appeals court struck down a gun-control law on the ground that the Second Amendment guarantees individuals the right to own guns. Up to now, courts have generally interpreted the amendment to protect only the collective right of states to maintain militias.
This is either misleading or ignorant.
The Supreme Court has interpreted the Second Amendment very rarely at all – certainly not enough to say the court has “generally” done anything. The most recent significant case was US v Miller in 1939, which set a precedent that was tortured into a “collective rights” interpretation over the past forty years. Before that, other than US v. Cruikshank and Presser v. Illinois, in 1876 and the 1880’s (neither of which were collective rights interpretations!), the whole “individual vs. collective” thing was not even apparently a point of discussion; people apparently knew that rights “of the people” – like the First, Tenth as well as the Second – referred to the people.
If it takes the case, the Supreme Court could issue its first direct ruling on the Second Amendment in 70 years, solidifying some of the nation’s toughest gun-control laws or exposing them to a torrent of new challenges.
“It will be the biggest ruling on the Second Amendment ever,” said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. “You get nervous when you see something with far-reaching implications.”
And one might hope they have reason to be nervous. As even liberal legal scholars abandon the collective rights fiction, and even the liberal media starts to let facts seep into what they’d heretofore covered with press releases from the “Brady Campaign”, gun control has been losing even more traction.
The National Rifle Association (NRA), which believes it might have an advantage with a conservative-leaning high court, also is uneasy.
“I’d rather be on our side than on their side, given the chances, but there is always a ‘but,’ ” said Wayne LaPierre, the NRA’s executive vice president.
D.C. officials say they expect to learn by early November whether the Supreme Court will take the case.
Yet another reason why Bush, for all his many faults, will leave a good legacy; he may have started to restore sanity to the Supreme Court.
I can see that you’re a 2nd Amendment gun enthusiast. I think this is going to be an exciting case if the court decides to take it up.
While you have referenced a poorly written news article, I don’t understand how you have substantially addressed the Miller precedent. Miller is a straightforward decision:
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.”
Miller also had the added benefit of a clear connection to the Constitution sans Bill of Rights:
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
Whatever happens, the SCOTUS is going to have to operate with stare decisis in mind (well, maybe not Thomas). Unless they figure out a way to operate within this context, they will simply be overturning a prior decision with no recognition of precedent. How do they do this? I suppose they could say that the prohibition of all guns doesn’t allow for the creation of any militia at all, but that just reinforces the Miller precedent to prohibit specific arms and it also opens the door to a counter suit which would argue that the modern army has outpaced the decision and there is no need for any militia.
How do you get around the precedent with the specific DC case in mind?
Miller is a straightforward decision
Well, no.
Joeir:
You may disagree with it, but it is pretty self-explanatory and straight forward. It places significance in the militia when answering the question, “What does the 2nd Amendment protect?” The decision continues:
The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Again, you can disagree with this but if you are going to argue that it isn’t clear, then I think you’re starting off on the wrong foot. I’m not sure how I feel about the upcoming case. I hunt for pheasants and I enjoy the skill and patience involved with the sport. I think that people should be able to own guns. I also think that this isn’t an open ended right. The question then becomes where to draw the line. Miller is tough to get around because it clearly and directly says that militias set the context for the question of what/who the amendment protects. If the DC case is taken up, will the justices ignore Miller and argue that it isn’t applicable to the DC law? Will they challenge Miller and argue within the context of its precedent? Will they blow Miller out of the water by simply deciding that it is wrong and that they’re going in a new direction? Will they reaffirm Miller? I’m not trying to pick a fight; I’m just trying to figure out what the possible arguments could be.
What exactly do you think is not straightforward about the decision? It says that arms must have “some reasonable relationship to the preservation or efficiency of a well regulated militia” in order to be considered for protection under the 2nd Amendment. What is protected? Arms that have some reasonable relationship…yadda, yadda, yadda.
Longer response when I get a break at work, but I had to hit on this one:
Arms that have some reasonable relationship…
The Miller decision was muddled to the point of incomprehensible on this issue. The gun at issue in the case was a sawed-off shotgun; the court ruled that the piece had no reasonable relationship to “militia” use – even though they’d been used throughout World War I (and would be used in WWII).
If you assume the “militia” is a military body (which is part of where Miller, or at least the interpretations of Miller in the past 40 years err) then it’s factually ludicrous to say a sawed off shotgun isn’t of use to a militia.
Good questions, though.
More later.
Joeir:
You may disagree with it, but it is pretty self-explanatory and straight forward.
Well, no, it isn’t. The problem with regard to your description of it isn’t that I disagree with it — I’m not sure that I do disagree with part of it, and agree with some of the implications — but that it’s bizarre reasoning, and complicated not by the facts of the case (pretty straightforward: Miller didn’t pay a $5 tax on a short-barreled shotgun, as required by a Federal law) but by it being argued only by one side, and written by a Justice who was, to be generous, well below the SCOTUS bell curve, resulting in badly thought-out, complicated, and pretty stupid decision.
It doesn’t matter at what level you think the justice practiced at, what his argument was to the facts of the case, or the complications that may result from his argument’s application to peripheral cases about transportation and the regulation of sale. The straight-forward point of the decision is that the “what is protected?” question has to be related to the militia. Most of the complication that arises from this case has to do with the anachronism of militias, not the decision itself, which, again, is very, very clear. What is protected? Arms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia”. Also, the other main source of confusion with this case results from people trying to extrapolate information to support their 2nd Amendment flavor of choice: individual or collective. On this front, the case is largely a stalemate. It only speaks to the “what question” of the 2nd amendment and the court has not touched the issue since.
In other words, Miller is coherent but irrelevant. It permits reasonable regulation of firearms in relation to their use in a militia; a concept that has long since ceased to mean what it meant when when the Bill of Rights passed. It’s irrelevance has to do with the Constitution’s text, not a poorly written decision. Yet, it is still precedent and, I believe, it needs to be addressed.
Actually, the whole “ceased to mean what it meant when when the Bill of Rights passed” is a bit of a canard.
I’ll refer you to Sanford Levinson’s “The Embarassing Second Amendment“, which gutted that argument (among many others) to the point where it started changing Laurence Tribe’s mind on the subject. Very much worth a read on many levels, the least of which is the gutting of the “militia is the National Guard” argument (which was pretty well laid to rest by Perpich v. US, if I remember correctly.
Like Dred Scott and Roe, Miller may have set a precedent – but it was a dumb, badly written one whose extinction is long overdue.
I don’t believe that is correct at all. I’ve read the piece of work you cited and I think it fails on a couple of key points:
1- The textual interpretation in the argument cannot be separated from the historical one. Our understanding of the Bill of Rights and the Constitution is often based on the FF’s use of existing state constitutions/laws in the federal document. For instance, we know what they meant vis a vis religion because of Jefferson’s Virginia Statute and Madison’s Memorial and Remonstrance Against Religious Assessments (in response to Patrick Henry). The text of the religious portion of the final 1st Amendment can be traced in meaning and style to these historical documents. The same can be said about the 2nd amendment. When you take colonial constitutions into consideration, and when you look at the language originally introduced by Madison (which really hit home the “this is relating to a militia” theme), it is hard to think that the preamble was intended as a separate entity. Furthermore, any defeat to the militia position (i.e. common defense being struck down, George Mason’s quote) were made in the context of debating a standing army.
2- The 2nd Amendment has to be viewed in relation to the Constitution. The Powers of Congress specifically mention militias as being under federal review.
3- We have gone through several stages that have pushed us away from the original definition of militia: standing army, civil war, post wwii defense industry growth, etc. “Militia” is still used, but only in a legalistic way that describes a certain clause and its scope (see below). This use did not exist at the time of the Bill of Rights. Militia was a non-standing army and everyone knew it.
4- Perpich affirmed the Guard as militia argument. It is how Article 1, Section 8 was invoked. It only rejects the militia argument when federal duty is on the line (Title 10 vs 32). This was a different power play altogether. (http://caselaw.lp.findlaw.com/data/constitution/article01/42.html)
That paper is interesting and it brings up many good points, but there is no way it “gutted” anything. Also, there is nothing wrong with simply not liking a decision. Comparing Dred Scott with pretty much anything else is incendiary. Viewing people as property is a long way removed from having a legitimate disagreement over a poorly written and (likely) anachronistic amendment.
The problem, of course, is that Miller fails even by its own terms.
If the Second Amendment only requires the Feds to keep their fingers off arms that are useful to “the militia” — rather than people, as individuals — in some meaningful way (and it doesn’t, but that’s just the main problem with it) then the arms the Feds are forbidden to mess with has to, necessarily be any of those which would be useful for any legitimate purpose of the militia — any arms which could be used by the militia either for local defense against raids by invaders, provide for local individual or group security, or as a serious threat to a standing Federal army (it’s not exactly a secret that the Founders saw the militia as a counterweight to a standing national army, something they had reason to fear, as they’d just fought a revolution against a standing national army.)
These days, the first would include any sorts of rifles (single shot to fully auto); the second would naturally include rifles, shotguns, and handguns suitable for security and defense (just about anything except long-distance, very small caliber weapons, and others suitable only for target shooting and hunting), and, of course, the “arms” necessary for local militias to be a real threat to the Federal army: individual battlefield and assault rifles, sniper rifles, crew-served machine guns and artillery pieces, etc.; mines and anti-tank weapons; surface-to-air missiles, and, of course, tactical nuclear weapons.
Fortunately, since the Second Amendment isn’t about the right of the militia to have weapons, but acknowledges “the right of the people to keep and bear arms,” it’s much better construed as forbidding any sort of regulation infringing on the possession of personal weapons, rather than nukes.
I don’t believe that is correct at all. I’ve read the piece of work you cited and I think it fails on a couple of key points:
1- The textual interpretation in the argument cannot be separated from the historical one.
And, historically, the FFs’ intention was clear – the individual should be armed. that’s why they called it a right “of the people”.
Many of the state constitutions to which you refer are clearer about being individual rights (indeed, Levinson among others analyze this) but the fact remains it is a right ” of the people”. There is no way to reconcile this being an individual right in the First and Tenth Amendments, but not in the Second.
2- The 2nd Amendment has to be viewed in relation to the Constitution. The Powers of Congress specifically mention militias as being under federal review.
The “Militia Act” of 1794, however, recognized that “militia” meant different things, even then; it explicitly differentiated between the “organized militia” – a local body that drilled under local control – and the “unorganized militia”, meaning everyone else over age 16.
4- Perpich affirmed the Guard as militia argument.
For purposes of the Second Amendment, it SHOULD be seen as doing just the opposite; it cemented the federal control of that particular “militia”.
It only rejects the militia argument when federal duty is on the line (Title 10 vs 32).
You act as if that’s a minor thing, for purposes of determining whether the Second Amendment is an individual right!
That paper is interesting and it brings up many good points, but there is no way it “gutted” anything
Let’s compare:
On the one hand, Laurence Tribe – one of our leading constitutional scholars, and for decades the leader of the “group right” faction – said it started him on a decade-long journey to finally accepting the “invididual right” interpretation.
On the other hand, gump worsley, anonymous commenter, says it’s no big deal.
Can you understand why I, a non-lawyer, might lean toward Levinson and Tribe on pure credential grounds?
Also, there is nothing wrong with simply not liking a decision.
I’m pretty up-front about those cases, I think it’s fair to say.
Viewing people as property is a long way removed from having a legitimate disagreement over a poorly written and (likely) anachronistic amendment.
Hardly.
Our creator-given rights are what separate us from all the various degrees of servitude and slavery.
It was the right to keep and bear arms that separated serfs from nobles in feudal times.
It was an attempt to ban guns in the hands of freed blacks, veterans of Union service in the Civil War who’d shot the hell out of some Klansmen in Galveston after the war, that led (among many other things) to the 14th Amendment and the Equal Protection clause.
The Second Amendment is no more “anachronistic” than free speech or freedom from search and seizure. God help us when we fail to realize that.
I might be wrong, but I dont think Miller even showed up, so it was more or less a default decision for the other side. Also, ruling that a sawed off shotgun has no military value is just wrong. There is a reason they are called trench guns. If the SC had ruled that the sun comes up in the west, there is no reason why that precedent should stand no matter what.
Mitch:
“Our creator-given rights are what separate us from all the various degrees of servitude and slavery.”
???
I think we’ll just have to agree to disagree on that point. I think you know what I mean about comparing Dred Scott to abortion and guns and I’ll leave it at that. (Actually, one more thing: the feudal serfs had a little more than weapons separating them from the nobles. You could make a smashing argument against God along similar lines.)
The FF referred to the right (I think it is a right, btw; a restricted one however) in the context of militias and federal oversight of those militias. I don’t think there is a way around this particular right of the federal government to exercise control on the governed. I don’t think Miller speaks one way or the other on Individual vs. Collective; I think that’s another argument altogether.
Again, the militia clause and argument was in relation to a standing army, as is the Perpich case; which, if you are going to resort to “should have” arguments, means I think we’ve said all we need to say on that particular matter. I also think that this argument says a good deal about your appeal to the individual authority of Dr. Tribe. There are other scholars who disagree with him and you. So what? I’m glad he had an epiphany on something. Again, people disagree. Who am I to disagree with him? Nobody, but my argument is valid. I don’t throw appeals to authority in your face (who are either of us to argue any of this?), so please don’t throw it in mine. Especially when you make some points that are open to wide areas of disagreement to men with far more advanced degrees than the both of us combined. As for my own personal views: I think the federal government has a legitimate right to restrict the purchase, sale, and transportation of firearms. I think that the legislature has done a piss poor job of codifying the details allowed within Miller’s field of play. What is an arm? What are reasonable restrictions? And so on and so forth.
Your appeal to personal authority becomes even more glaring when you consider that you still haven’t said how you would argue around/through/with Miller. It’s a stumbling point that you haven’t addressed. Again, I’m not picking a fight; I’m trying to figure out how a possible court decision would address Miller.
Finally, there is no way the possession of arms can be a creator-given right. It doesn’t follow for several reasons.
Joeir:
I think you raise a valid point in the 1st paragraph. My argument would be that cruise missiles, nuclear weapons, and predator UAVs were inconceivable to the FFs. This is another reason why I would argue that the law is anachronistic (which, btw, works both forwards and backwards; it’s more commonly used going backwards); they had absolutely no way of understanding the destructive powers of future weaponry. I would again fall back on the argument that the Amendment itself is what is poorly written and that all things taken into consideration at the time of its writing, it was meant to allow for members of the non-standing army to have weapons. There aren’t two separate ideas here.
Ultimately, we now have a situation where 2 of our Circuit Courts hold an individual rights view and the SCOTUS needs to provide direction. I think that full fledged guns rights advocates are playing with fire by bringing this to the court rather than by federal law. This could backfire on them in a major way. How would you address existing precedent?
Yup; Miller disappeared, and Miller was decided without hearing any rebuttal to the government’s arguments. This does not, generally, make for good decisions, and it didn’t.
gump — sure, let’s assume that far more lethal arms than available in the eighteenth century were inconceivable to the Founders. But if we go from that to accepting that far more powerful means of communication — say, the Internet, or very cheap publishing — were inconceivable to the Founders, it may lead to something you very much don’t like.
I think the simplest way for the Court to address Miller in the DC case is to ignore it; the best is probably to treat it as what it is: less sensible, even, than Plessy.
The best way for people who think that a part of the Constitution is anachronistic and needs to be changed is to work for amending it. That’s one of the features of it, after all.
Joeir: It was a New Deal test case.
As for the inconceivable events argument, I agree that the issue should be taken up by legislation. However, any legislation that will come up will likely rile one side in the debate and we’ll be right back at the beginning…in the courts. I’m not too sure an amendment could get passed in this day in age. I think the internet and 24 hour news has killed off that possibility.
The main point I was using with the UAV/nuclear weapon is that the FF had a clear idea of what constituted a militia and that it didn’t involve advanced weaponry. After the development of a standing army, this became even more out of date. I’m not saying that the courts should have to rule on every single weapon but that the entire concept of militias as the founders understood them is out of date. Completely. The clear point that Miller makes is that the 2 independent clauses contained in the 2nd Amendment cannot exist separately.
As for the inconceivable events argument, I agree that the issue should be taken up by legislation. Agree with whom?
And, yes, it’s difficult to pass a Constitutional amendment — for one thing, you have to persuade a huge section of the population that it’s a good idea, or it’s not going to happen.
And, yes, I agree that the clauses in the 2nd Amendment cannot be taken separately — they mean “because the existence of a militia is vital for a free society, the right of the people to keep and bear arms must not be messed with,” and the first clause is an explanation for, not a restriction on, the second, just as an amendment that read “because the existence of a well-read electorate is necessary for a free society, the right of the people to keep and read books shall not be infringed” couldn’t honestly be interpreted to mean that only registered voters could have books, and then only those books that dealt with matters that would be on the next ballot.
Q: Agree with whom?
A: My bad writing in these little comment boxes. Something definitely got lost in translation here. I meant the process of introducing an amendment via legislation and…well, it wasn’t a good point at all and I did a terrible job of making it and I think I cut and pasted my way out of actually making sense in that paragraph.
I agree with you on the basic interpretation of the two clauses’ interdependence. I differ in that I believe the concept of militia is not a constant like your reading analogy. Had the founders said something to the effect of “because self defense is vital for a free society” I think your analogy (and the amendment) would hold more weight. Instead, I think the more apt analogy is this: because the existence of horse carriage poop catchers is vital for a clean society, the right of people to keep and bear buckets shall not be infringed. This is admittedly silly but, I believe, so is pretending that the amendment’s utility is preserved in anything other than an amber like understanding of what the pre standing army understanding of the word militia was. Reading is reading is reading; the organization fighting the GWOT is not a militia. Going back to my silly analogy, I don’t think the answer is to outlaw buckets. Nor do I think that horse carriage owners are the only people who can use them. What I do think is that the entire concept contained within my analogy, and the 2nd Amendment, is self-contained; it doesn’t speak to individual or community rights; it’s a way of organizing a non-standing army by a group of people who distrusted standing armies. Once its hull is breached, the idea contained within becomes compromised and the original guidance has no more to say on the rights of people to own buckets than it does on their ability to buy and sell M240s. In this sense, it doesn’t matter whether or not the 2nd clause is an explanation or a restriction; as long as the term “militia” was intended to refer to a non-standing army, it follows that anything it explains or sanctions is equally irrelevant once we did away with the need for having people keep their weapons at home in case of an invasion or deployment.
s long as the term “militia” was intended to refer to a non-standing army, it follows that anything it explains or sanctions is equally irrelevant once we did away with the need for having people keep their weapons at home in case of an invasion or deployment.
Nope, for two reasons: that was — again, read the Founders — by no means the only reason for the Second Amendment, and simply because (at this time) there’s no apparent imminent risk of invasion or imminent need for the deployment of the militia does not affect a right recognized (not conferred) by any Amendment.
Similarly, although books that are not on political philosophy are not necessarily relevant to the next election, the First Amendment still applies to them.
That’s not what I’m saying at all. This amendment doesn’t apply to modern standards by way of militias, as the modern National Guard (defined by National Defense Act during WWI) clearly shows (it also defines militias as ‘all able-bodied male citizens of the United States [between 18 and 45] and all other able-bodied males who have . . . declared their intention to become citizens of the United States,”).
The second statement simply doesn’t make any sense at all. It’s not a reasonable cognate. If anything, it shows that the concept of free speech is constant while militia is not.
If anything, it shows that the concept of free speech is constant while militia is not.
Only if you insist on interpreting “militia” as “an organized military body”.
Which Levenson and, now, Tribe, among many others, now agree that in the context of the time and the Founding Fathers’ intentions (shown in the context of reams of their writing on the subject), is incorrect.
Your entire argument, “Gump”, seems to be predicated on the notion that “militia” means, shall always mean, and can only mean “organized military body reporting to the state”. Ours – and it’s supported by an increasing body of scholarship – is that it does not, can not, and will never mean that. We respectively reject your interpretation; if this IS, indeed, the basis of your argument, then perhaps agreeing to disagree (until the SCOTUS rules us correct) is the logical next step.
The whole “the founding fathers never envisioned tanks and flamethrowers and nukes” argument is a strawman; hardly anyone argues that the government doesn’t have some place in regulating what “the unorganized militia” can use to defend themselves and their property. That strawman is the flip side of the “Second Amendment is for sportsmen” canard that the Dems keep trying to mine.
(For the moment, I’ll ignore the obvious moral question; if you take a law-abiding citizen – say, me – and give him a pistol, and he doesn’t turn into a slavering killing machine, how would he be any different if you gave him a machine gun or a tank or a B-52? What is it about the nature of an object that supposedly changes an individual’s behavior? Again, I’m ignoring that question for now).
We respectively reject your interpretation
And, more to the point, “respectfully” reject it, too.
Need coffee.