US Supreme Court 2nd Amendment Case

[madanthonywayne]

Well, it's finally happened. The US Supreme Court has decided to take on a case that could decide, once and for all, the issue of the right to bear arms in the US. I must confess, I'm a little scared. I'd hate to see the right of the people to keep and bear arms was abolished. It wouldn't seem like America.

This week, the Supreme Court agreed to hear the case of District of Columbia v. Heller. In March, the Court of Appeals for the D.C. Circuit declared unconstitutional the District's near-total ban on handgun possession. That 2-1 ruling, written by Judge Laurence Silberman, found that when the Second Amendment spoke of the "right of the people," it meant the right of "individuals," and not some "collective right" held only by state governments or the National Guard.

That stirring conclusion was enough to prompt the D.C. government to declare Judge Silberman outside "the mainstream of American jurisprudence" in its petition to the Supreme Court. http://www.opinionjournal.com/weekend/hottopic/?id=110010902

To me, the 2nd Amendment, like all the other amendments, obviously confers an individual right to keep and bear arms. No where else in the constitution or the bill of rights does "the people" refer to the government or the states. The Bill of rights was about securing individual rights. Yes, the wording mentions a militia, but that was defined as the body of all free men.

Anyway, this really could go either way. People are saying that the issue will be decided by one man: Anthony Kennedy. He's a swing vote and has a lot of power in a situation like this.

There's also the possibility they could punt it and create some narrowly crafted decision to dodge the major issue. We'll see.

 

[Pandaemoni]

I don't think it will decide the fate of the 2nd amendment once and for all. The case is fundamentally about the D.C. ban on handguns...and "D.C." counts as the federal government for Constitutional Law purposes.

I may very well be the landmark case on the issue, but unless Roberts decides to "go activist" (albeit potentially conservative activism, in this case) the case at hand will leave at least two big questions open:

(1) can state and local governments ban handguns; and

(2) the bigger issue of whether the second amendment applies to the states at all.

It's also possible that, even at the federal level, Roberts might play it "conservative" and steer the opinion to the precise facts at hand, which would mean banning handguns and rifles, and leave for another day the question of federal bans on machine guns and other more powerful weapons. I assume that even the most die hard second amendment supporter believes that there's some weapons that can be banned (landmines, grenades, rocket launchers, something) so it would probably be a mistake for any court to delineate the boundaries of acceptable banns too aggressively unless the parties and amici curiae have fully briefed and argued the issue. That said, Alito is on record as opposing the machine gun ban on legal grounds, so you never know.

It will be an interesting and ground breaking case no matter what. I assume they will come out with a conservative answer on these questions. That doesn't particularly bother me, as I believe the country is better off leaving second amendment questions on the pendulum, sometimes swinging right, sometimes left.

 

[Tiassa]

There's also the possibility they could punt it and create some narrowly crafted decision to dodge the major issue.

These outcomes will favor those whose identity politic depends on firearms. Both the law-abiding and the criminal.

 

[madanthonywayne]

I don't think it will decide the fate of the 2nd amendment once and for all. The case is fundamentally about the D.C. ban on handguns...and "D.C." counts as the federal government for Constitutional Law purposes.

You're probably correct. But it still sucks that one man could possibly decide the fate of the second amendment. If Jefferson knew what he was starting with Marbury v. Madison,, he'd have let Marbury have his damned JP appointment.

To change the constitution takes a 2/3 majority of both houses of congress and then it must be ratified by 3/4 of the states. Or.......five guys in robes can do whatever the hell they want!

I assume that even the most die hard second amendment supporter believes that there's some weapons that can be banned (landmines, grenades, rocket launchers, something)

Agreed. Even the first amendment, which no one disputes, has limits.

That said, Alito is on record as opposing the machine gun ban on legal grounds, so you never know.

Yeah, it's too bad Bush didn't get one more appointment to the Supreme Court. Then we'd have an absolute majority. Oh well. This still seems to be the most conservative court ever. And, who knows, some of those justices are pretty old. Maybe one more will retire. Or we can wait for president Guiliani to appoint someone. The nice thing is that all of the conservatives are relatively young and so we should have none of them retiring if a Democrat wins in 08.

It will be an interesting and ground breaking case no matter what.

Definitely.

 

[Pandaemoni]

To change the constitution takes a 2/3 majority of both houses of congress and then it must be ratified by 3/4 of the states. Or.......five guys in robes can do whatever the hell they want!

Somebody has to decide what the Constitution means, and if it's not the unelected judges, then it will be the elected officials. Congress would change its interpretation of the document every time control of Congress went to a new party. The President would change hois interpretation likely every single time a new person took office.

In that sense, philosopher kings or not, I prefer having a highly educated judiciary make the call (with a due respect to both fair textual interpretation and for the value of precedent) insulated from popular whim. They may still have reinterpretations, but I think it keeps greater stability to the meaning of the document than handing it over to the elected branches would.

 

[Baron Max]

To change the constitution takes a 2/3 majority of both houses of congress and then it must be ratified by 3/4 of the states. Or.......five guys in robes can do whatever the hell they want!

Just curious, ....but can the Supreme Court ultimately decide not to even rule on the case? I know that they've said they will, but....?

And remember, also, no matter what the ruling, this issue can come up again and be overturned by either a new court or even by the same court.

The gun laws in the USA aren't going away by this ruling ...one way or the other. If they rule to allow the government to take our guns, this just might be the cause of states seceding from the union ...civil war perhaps?

Baron Max

 

[pjdude1219]

actually the typical liberal and conservitive view points are both wrong if you look at how the framers used the words and phrases in the 2nd admendmenmt from what i have read on it i believe it confers private ownership for PUBLIC usage

 

[Baron Max]

actually the typical liberal and conservitive view points are both wrong if you look at how the framers used the words and phrases in the 2nd admendmenmt from what i have read on it i believe it confers private ownership for PUBLIC usage

Well, the government just needs to call us out, and most gun owners that I know would be more than happy to help. We've volunteered to guard the borders, we've volunteered to hunt escaped criminals, we've volunteered to help in times of national disasters, and we've volunteered to serve in the military. What the fuck more do you want for "we, the people"?

Baron Max

 

[Pandaemoni]

Just curious, ....but can the Supreme Court ultimately decide not to even rule on the case? I know that they've said they will, but....?

Baron Max

There is no law that requires them to rule on a case even after they've accepted it. Not ruling would presumably mean only that the DC Circuit's decision would stand. striking down the law. There are "nonjusticiable" issues that the courts have punted on in the past, this just doesn't seem likely to be one of them.

The Supreme Court could go completely overboard and announce that all questions of constitutional law are "political questions" that need to be resolved by Congress and the Executive (though they'd pretty much be overruling Marbury v. Madison if they did that). Prior to Marbury, constitutional questions were considered "political" rather than legal questions (hence the British Parliament is free to change the unwritten British constitution at will). Political questions were frequently found to be "nonjusticiable" when they arise (until Bush v. Gore, at any rate)

 

[RubiksMaster]

The US Supreme Court has decided to take on a case that could decide, once and for all, the issue of the right to bear arms in the US. I must confess, I'm a little scared.

I'm scared too. But I really don't think they could get away with banning guns on a larger scale. Even though there are a lot of ignorant people, there are still a lot of reasonable people, who understand the importance of being armed.

actually the typical liberal and conservitive view points are both wrong if you look at how the framers used the words and phrases in the 2nd admendmenmt from what i have read on it i believe it confers private ownership for PUBLIC usage

Use by the private individual would benefit society as a whole, since the public consists of it's people.

 

[Baron Max]

I'm scared too. But I really don't think they could get away with banning guns on a larger scale.

Yeah, I'm not so sure that there wouldn't be a general uprising! I don't know any gun owner who would willingly give up his guns ...and if the police or FBI or someone tried to take them by force, ....?

Can anyone spell "civil war"?

Baron Max

 

[Pandaemoni]

Yeah, I'm not so sure that there wouldn't be a general uprising! I don't know any gun owner who would willingly give up his guns ...and if the police or FBI or someone tried to take them by force, ....?

Can anyone spell "civil war"?

Baron Max

It always seems to me that the people who would even consider firing weapons at law enforcement, doing their jobs, under any circumstances, are not the people who I think should own guns.

Granted, there's a pretty good argument that the 2nd amendment is only there so private citizens can overthrow the federal government, but if that is the reason it was passed, then I'm all for "reinterpreting" that amendment to mean something else. Living Constitution ftw!

 

[Baron Max]

It always seems to me that the people who would even consider firing weapons at law enforcement, doing their jobs, under any circumstances, are not the people who I think should own guns.

I think Hitler outlawed gun ownership in German in the 1930s, didn't he? And knowing what you know now about what Hitler did, do you still think the same thing as you wrote above?

Saddam Hussein also outlawed personal weapons in Iraq. And knowing what you know now about what Saddam did, do you still think the same thing as you wrote above?

I don't know ...your argument doesn't seem to bear up well in a historical setting, does it? Or do you have some examples where a government takes the citizens' means of self defense and it all turned out wonderful? Singapore is one, but would you want to live in a nation where you can be jailed for what you say?

I wonder, though, does "We, the people,...." actually mean anything anymore?

Baron Max

 

[Pandaemoni]

I think Hitler outlawed gun ownership in German in the 1930s, didn't he? And knowing what you know now about what Hitler did, do you still think the same thing as you wrote above?

Hitler also loved his dog and breathed oxygen. By the logically fallacy above ("guilt by association"), no doubt you advocate killing dogs and holding your breath? After all, the Nazis did those, therefore they are always bad, right?

Look at all the other nations that have banned private ownership of guns and *not* fallen into totalitarian dictatorship, for heavens' sake. Obviously, Hitler banned guns as part of a plot to retain power, but I think our government is a good bit stronger than that of the Weimar Republic, with or without private gun ownership.

In any event, I never said guns should be banned, just that people who seriously contemplate murdering law enforcement and/or military personnel, under any circumstances, are the wrong sorts to have access to weapons. If killing law enforcement/military is the furthest thing from your mind, I have no problem with your owning guns on those grounds.

So no, your argument doesn't cause me to rethink what I wrote.

I don't know ...your argument doesn't seem to bear up well in a historical setting, does it?
Baron Max

You seem to be looking at history in a somewhat selective fashion, imo. Japan, Sweden, Germany and Britain have strict gun control (and many more nations have stricter controls than the U.S., including Canada and the remaining members of the E.U.), and none of those seem likely to descend into totalitarianism any time soon as a result. At the same time, widespread gun ownership didn't stop Lenin form seizing control in Russia (in fact, it helped him, because guess where he got his guns? After the communists took power they did try to use gun control to solidify their position...and look how well that worked for them).

So actually, "my" argument (assuming it were "ban guns!"...it wasn't, but what can one do?) still seems to have some weight. There are counterexamples, to be sure, but they do not completely demolish the contrary position.