Second Amendment case headed to Court

Source: SCOTUS Blog

Second Amendment case headed to Court

Local government officials in Washington, D.C., announced Monday they will appeal to the Supreme Court in a major test case on the meaning of the Second Amendment. The key issue in the coming petition will be whether the Amendment protects an individual right to have guns in one's home- an issue on which there is now a clear conflict among federal Circuit Courts.

The petition would have been due Aug. 7, but city officials said they would ask Chief Justice John G. Roberts, Jr., for a 30-day extension of time to file the case. Mayor Adrian M. Fenty and city Attorney General Linda Singer disclosed the appeal plan at a press conference, along with local Police Chief Cathy Lanier.

The D.C. Circuit Court ruled on March 9 that the Second Amendment does guarantee an individual right to possess a gun -- at least within one's own home. The ruling was the first by a federal appeals court to strike down a gun control law based on that view of the Amendment's reach. The case is Parker, et al., v. District of Columbia (docket 04-7041). On May 8, the Circuit Court refused by a 6-4 vote to rehear the case en banc. The mandate is scheduled to be issued Aug. 7, but will be withheld after the city files its Supreme Court petition.

Read more: http://www.scotusblog.com/movabletype/archives/2007/07/second_amendmen.html

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I can only hope that the court will actually decide to hear the case, and quite honestly... I don't see that not happening.

From reading previous articles and the Brady Campaigns own comments... the anti-RKBA zealots have been in a panic mode fearing that the case would make it this far.

"A well-regulated militia..:shrug:

hopefully that misunderstood bit of misquoted tripe/nonsense will be laid to rest with a proper decision.

Of course, being equipped and trained is what "well-regulated" almost certainly meant at the time; the former was the militiaman's responsibility and the latter was the responsibility of the state.

I'm unclear on how my having a right or not depends on a state's actions.

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html

Technically speaking.

This USC is important to know to better understand the U.S. vs Miller case I will comment on below.

Supreme Court Cases Already Ruled On This Issue

U.S. v. Cruikshank, 92 U.S. 542 (1875)

U.S. v. Cruikshank was a case which involved the KKK suppressing black folks from their right to freely assemble and to bare arms. The Supreme Court in this case ruled that because the 1st and 2nd amendments applied to the federal government and not to the states; citizens had to "rely on the police power of the states for their protection from private individuals.

However, the Supreme Court also ruled:







Next important Supreme Court case we have is: Presser v. State of Illinois, 116 U.S. 252 (1886)

In Presser v. Illinois the Supreme Court ruled that the states had the right to regulate private military groups. Presser also reaffirmed the earlier Cruikshank decision that the Second Amendment is a restriction upon the federal government and not the states.

Nevertheless, Presser is important because the Supreme Court also ruled that the states could not write laws prohibiting the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."







Next important Supreme Court case we have is: U.S. v. Miller, 307 U.S. 174 (1939)

I am very sorry for all those who believe that the Miller case ruled that citizens are not guaranteed the right to private ownership of firearms. The Miller case doesn't make any such ruling. What the Miller case rules is that a sawed-off shotgun doesn't constitute "ordinary military equipment or that its use could contribute to the common defense." Therefore "it cannot be said that the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument (sawed-off shotgun), or that the statute violates such constitutional provision."



The Miller case also brings up some other interesting rulings. And to better understand these rulings requires knowledge of the U.S. Code I posted above with respect to the definitions of the militia.





Its important to note that the Supreme Court only required evidence that a saw-off shotgun contributed to the efficiency of a well-regulated militia. They did not however ask the question if whether or not the defendants had to belong to a well regulated militia.

Now given this fact and interpreting Miller with its references to "ordinary military equipment", "Militia comprised all males physically capable.....", and citizens "expected to appear baring arms (of the 'ordinary military equipment') supplied by themselves and of the kind in common use at the time (today the M16 semi/full auto assault rifle).

Taken into context with the U.S. Code on "Militia composition and classes" and its definition of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States.

And further taken into context with the Cruikshank and Presser cases. The Supreme Court has held that the second amendment protects the right of all able bodied men to privately posses the common military weapon of the time (today the M16 rifle), and that other firearms are not protected by the 2nd amendment --But-- that the right to keep and bare arms is a human right that existed prior to the Constitution and as a human right is not reliant upon that document.

Of COURSE it's an individual right! Read your history, people. Read the Federalist Papers.

I cannot engage in this debate further. If it's not an individual right, then that means the government can control your right to own a gun. Do you really want the government having that degree of power over you?

news.

I think we do have the right to honest news. We're just not getting it right now! LOL

But now that I think about it, I do think we have honest news. We got very honest reporting on that wrestler guy Benoit, and Anna Nicole, and Paris Hilton, and that Karr guy who confessed to killing JonBenet, and the Duke rape fiasco, and on and on. What are you complaining about?

In today's world, there's no real difference between TV news and Entertainment Tonight. You may get Katie Couric's "serious" look but that's the only difference.

The US has traditionally been big on negative rights, not so much positive rights.

Negative rights restrict government, such as not censoring, not searching illegally, not imposing a religion. Positive rights require that people do things, and with every right granted to somebody comes an obligation imposed on other people.

The 'rights' tide has shifted in the last 50 years; it's one reason I like the Constitution as it is, more or less.

if you were a member of the "press". But individuals have no such right. (sarcasm)

I've already decided that guns are useless penis substitutes...don't have one, don't need one, don't want one...

But We the People, the government, having some control over the gun nuts' pathology, their delusion that they think they have a right to arm up against (what???) the boogie man de jour that the MSM wants them to fear?

Yup, we have a right to control that nonsense...


Now, folks, stand by for the right-wing rants from the gungeon... :evilgrin: :evilgrin:


For an example you can go here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=144658

But I hope you have a strong stomach, some of these gun nuts are rather hard to take...

What is your plan if someone ever breaks into your house at night? Ask nicely that they leave? Call the police and wait 15 minutes? Or do you just assume it will never happen?

No one is saying you have to have a gun. But don't stand in the way of those of us who actually take affirmative steps to protect our family in the case of an emergency.

"someone ever breaks into your house at night?"

Let's see, I've got a better chance of winning the lottery or getting hit by lightning than for this far-fetched scenario to come true.

I get a kick out of gun nuts, sitting on their arsenals in some remote location or in the midst of a neighborhood of "people of their own kind" worrying about some boogie man who never comes... :rofl:

Hell, maybe I should withdraw my objections and let the wackos spend themselves into the poor house buying this bogus, phantom, ephemeral "security"...

They can all go the way of the Soviet Union...

:rofl: :rofl: :rofl: :rofl: :rofl:

Do you have a smoke alarm in your house? I do, even though I've never had a house fire. Do you have flood insurance? I do, even though I've never had a flood. There are a number of "rare" events that we still try to prepare for. I've never been in a car accident but I still wear a seatbelt. Of course it is a remote possibility that anyone will break into my home at night. But if so, I prefer to be armed to defend myself. Why is it seen as responsible to have a smoke alarm, but irrational to own a gun?

How does this make me a gun nut? And why do you use the term arsenal? You seem to equate the average gun owner with some whack-job survivalist out in the woods sitting on a case of ammo and some rocket launchers.

But either he doesn't see a problem with imposing his choice on everyone, or has no respect for other peoples' judgement.

Interesting take. I always like that abortion slogan: "Don't like abortion? Don't have one." I think we need a similar one for guns. I don't care if you don't want to own a gun. But personally, I like to have one. Leave my choice alone.

And also, my choice is specifically covered in the Constitution. No one had to talk about penumbra to find that right! LOL

from a person who was carjacked at gun point, do not say it will never happen, I never thought it would either. Sure my guns are mostly for poking holes paper, but what if they would have came inside my house and wanted to assault my wife? I am glad you would have no problem with sitting back and letting that happen. Hopefully you never have to be in that situation, but do not say it can never happen, and making fun of people for the "boogieman" as you call it. I am hear to tell you that it sure as hell can.

I'll have to go to the basement, get the gun out of it's locked case and then oh yeah ask them to wait while I drive to town (35 miles) and buy some bullets.

I'm ready! I just hope they have the time.

In comparison, my RW friend in FL lives in a very exclusive neighborhood in Sarasota. He lives alone but keeps a loaded shotgun in his bedroom. I never asked why, just figured maybe........rough sex?

I am a woman and a gun collector who loves to shoot at the range. If you don't want to own one fine by me but leave my right to own one alone.

rest of us who can should give up our rights

the power to control any supposed right to own a gun.

I would much prefer that only police, National Guardsmen, and militia were sanctioned to possess firearms of any kind.

OTOH, there are far and away more serious and important public issues swirling around us these days - in view of that maelstrom, I could give a shit about all the gun hoopla one way or another.

control over?

totally misconstrued by the self-serving gun nuts.

What part do you think has been misconstrued? The militia part?

I must warn you I don't waste my time arguing with gun nuts, thank you very much.

and close mindedness all you do is further marginalize your views so just keep on posting.

You can't own certain types of assault weapons.

You can't own a handgun if you are under 18 in most places.

You can't buy a handgun in some places if you are under 21.

You can't possess a concealed weapon in a public place without a permit.

You cannot possess certain types of exploding ammo.

You cannot have a sawed off shotgun.

You cannot discharge a firearm in public in all but a very limited set of circumstances.

You cannot own or possess a firearm if you are a convicted felon or have a conviction for domestic violence.

You cannot buy or own a firearm if you are mentally incapacitated and are deemed so.

You can't have a clip or magazine with a capacity over a certain size.

You cannot hunt without a plug in your shotgun in certain circumstances.

You can't use lead shot in hunting near water.

You have to go through a back ground check to buy a gun.

You cannot legally possess or use a silencer.


So, it's not an unlimited, untouchable right. So, given that, we should have sane gun control.

New Orleans is absolutely in a CRISIS with gun violence. Something needs to be done, and it isn't putting crack heads into gun safety classes.



"In England, no one has handguns, including the cops. Now in England last year, they had 14 deaths from handguns. In the United States... 23,000 deaths from handguns... but.....there's no connection....and you'd be a fool and a communist to make one. There is no connection between having a gun and shooting someone with it.....and not having a gun and not shooting someone."

- The Great Bill Hicks

Keeping a gun in your home shouldn't even be a question, unless you're a convicted felon or mentally unstable.

The court should rule that yes, you have a right to have a gun in your home.

Washington, D.C. has the right to ban handguns since handguns are the medium for most of the killings that occur in that city.

A ban on handguns would be a GOOD first step against gun violence in major cities. This case tests whether the citizens of a city have that right or do the gun nuts have all the rights.

There are a number of urban areas that would ban handguns in a minute if they weren't preempted by the tortured reading of the 2nd Amendment cobbled together by a paranoid group of gun nuts.

Hard to even know where to start. DC has some of the strictest gun laws around, but one of the highest rates of gun violence. How do you explain that?

If you ban all guns, what happens to all the guns the criminals have? Are they going to voluntarily turn them in? Why would they?

How do you explain the low crime rates in those rural areas where gun ownership is more common?

"DC has some of the strictest gun laws around, but one of the highest rates of gun violence. How do you explain that?" Virginia...

"How do you explain the low crime rates in those rural areas where gun ownership is more common?"

Fewer people, farther apart with fewer resources to steal... and no phony "war on drugs", the major cause of gun violence in the U.S.

And what makes you think gun ownership is more common in rural areas than urban?

I agree the War on Drugs fuels a lot of the gun violence. So we have common ground. But to tell people who live in these dangerous areas NOT to protect themselves seems to me to be the height of selfishness. Who are you to tell these people that they cannot exercise the fundamental right of self-defense.

I want guns to be in the hands of law-abiding people. I wish there was a way to get the guns out of criminals' hands. I really do. But until someone can make that happen, I think the best course of action is to allow people to defend theselevs as they see fit.

Statistics show that rural areas have more per capita gun ownership than urban areas.

and agree to disagree about the meaning of the 2nd Amendment... :hi:

I'd rather have an ally on the more important issue, ending the major cause of handgun violence, the phony "war on drugs" than to continue a less important argument about something we probably agree 90% about but has too many emotional ramifications.

----------------

But just for information about where I'm coming from, I've lived in the urban war zone and a large number of those who are armed with handguns in the war zone would make mince-meat out of the average "law abiding gun owner". So to me, guns aren't much of a deterrent. That's why I got rid of mine some 40 years ago. They were useless unless I was willing to become as cold-blooded a killer as someone who hypothetically would "attack me". No one has "attacked me" since.

Staying out of the "business" of the dealers was the best course for the "law abiding" to take in the war zone...along with learning to duck and cover when the rare drive-by occurred on my block.

Sometimes there's more heat than light. I don't have any problem with long guns for hunting (if you EAT what you SHOOT) and target shooting. I don't even have a problem with handguns for target shooting if they're securely locked up when not in use as they do in Britain. I just wish there were some way we could get handguns out of urban areas. I don't want to see any more bodies in the street. I also don't want to alienate anyone who can be a potential ally on the most important issue. :hi:

We know it is completely safe...How do you explain the fact that the other countries in the world that have stricter gun laws have far fewer gun related incidents....Your logic just doesn't wash. I am not in favor of eliminating guns but something needs to be done because the USA is a nightmare when it comes to gun violence..Your way of intimidation did not work in the wild west and it won't work now..More guns more gun violence it is very damn simple..Iraq being prime example...

and they have defeated our trillions of dollars military with them... as well as killing eachother.

The problem is in CARRYING and USING them.

...I don't want the state power to be the only armed power in society. An armed populace has a sobering effect on certain fascist tendencies in this country.

A ban on handguns would be a GOOD first step against gun violence in major cities.

Here in DC we've had a ban on handguns since 1976.

Great job it's doing, huh? 4 shootings in my neighborhood in 2 months.

... this issue can be put to rest, and stop the nuts on guns issue!

is the day our Constitution has been thrown away. Shame on us all.

but the "well regulated" bit shouldn't be ignored. I'd just like to warn all the gun totters that I got some too. I think the NRAers forget that radical, lesbian anarchists can have guns too! So if that think their guns give them an advantage they are wrong. All hail Smith & Wesson, Rugar and Winchester!

Bush has used the Constitution to wipe his ass, his Attorney General called it "quaint", and Cheney has written his own version and destroyed all known existing copies of the original. Signing Statements are the Constitution of this country now.

Our Constitution HAS been thrown away.

That being said, this case has about as much a chance of being heard as George Bush does of becoming a humble, decent man. None.

who LET them throw away the Constitution?
from what i've seen the people surely don't support losing our Constitution.
who and WHY? are they all truly paid for?

started about 100 years ago

if the people don't act to save their freedom - do they deserve to lose it?
maybe.

"They who would give up an essential liberty for temporary security, deserve neither liberty or security"

since you gun nuts always use the argument that you're the only thing standing in the way of a totalitarian fascist hellhole, I guess YOU let them.

But I don't see that happening. Do you? :shrug:

so that he can purchase a handgun and keep it in his home. The article says that he's allowed to keep a handgun on his person for his employment, but for some reason was denied a personal handgun permit.

How was Heller's situation conflated with an individual's right to keep ANY firearm in the home?

(I'd like to hear D.C's rationale for denying Heller a handgun permit, especially considering he's trusted well-enough to tote one for his job. Sounds like typical D.C. City Hall ineptness.)

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which is why home rule is just a pipe dream. There are days when it seems that Iraq is running better than the district

On a national and international scale, and they are the ones controlling DC's purse-strings, and they are the actual operators of this colony. They are the real government of the District, such as it is.

The DC government is no more or less dysfunctional than the US government running Iraq. And DC has no power, and it is incapable of doing damage to the county and the world the way the US government and its owners have done.

Possibly because D.C. law also prohibits possession of any firearm in functional condition inside your own home. You can own some types of rifles and shotguns, but it's a crime to have it in a non-disabled condition, and forget about loading it.

I don't know if the Parker case touched on this part of the law or not.


Because he didn't apply for it before 1976, when the handgun registry was closed.

That's the point. It's technically a "registry", not a "ban", but it's a registry that's been closed for 30 years to new registrations.

Incidentally, today's talk-like-a-DC-resident lesson is that city hall is called "Judiciary square"

going to go....but I can guess.

I fervently believe that government should fear it's people, not the other way around. If the people have guns, you don't want to piss off too many of them.

:shrug: That's all I'm going to say about that.

You're right but a bunch of amateur gun owners aren't going to scare "the government"... "The government" has enough firepower to take care of a bunch of untrained gun nuts.

Bodies in the streets and general strikes are what scare governments (and their capitalist masters). The withdrawal of consent from the governed is what government fears.

That's why the most effective tactics have been made illegal in this country -- "free speech zones" and Taft-Hartley...

http://en.wikipedia.org/wiki/Taft-Hartley_Act

"... "The government" has enough firepower to take care of a bunch of untrained gun nuts."

We did not achieve our seperation from England by going on strike.

A bunch of "gun nuts" (apparently compensating for small penises) obtained, for you, the rights of freedom of speech, freedom of religion, freedom of the press, freedom to assemble...

Many of them didn't even have shoes. But they had guns.

Thank God for gun nuts.

Amateur gun owners can do a lot, no matter how much technology we have.

Bodies in the street scare governments when those bodies are armed.

thats the main reason the Kucinich is a nobody during this election.

If someone comes in my house after my little girls, im not calling 911 and waiting 5 minutes for the government to show up, im blowing his f*cking head off. If that makes me a "gun-nut", then oh well. Im a gun-nut with an intact family.

about this.

:evilgrin:



http://bradycampaign.org/media/release.php?release=910

Departing from the conclusions of nine other Federal Circuit Courts

The only fed circuit that has ruled the 2nd a collective right is the 9th.

exercised his RKBA, and 32 innocent people are dead.

The state should severely restrict access to guns. "Well-regulated militia" means what it means.

Black rifles for everyone. Metal detectors at every door. Armored police vehicles patrolling. Assassination as an art form.

WTF does the color of a rifle matter? Rifles are used in a vanishingly small number of crimes, less than 2% IIRC

so when a mentally ill killer buys a gun off the streets he can go shoot as many innocent people as he wants and the best part is thanks to gun restriction they will all be unarmed! what a horrible idea.

The court has shown a pattern of pro-authoritarian decisions, so if circumstances were different I would be more worried. However, if the Bush-appointed justices vote in favor of the DC ban, Republican gun owners will be disappointed with the party in a big way. Ideologically, the GOP has abandoned most of its traditional grassroots constituencies, and if a conservative-dominated court decides that there's no right to keep a handgun in the home, Republican gun owners may be dejected enough to sit the next election out.

I can't wait to read the Brady and Gun Guys pages on the day the Supremes decide that guns are groovy.

... they might have had a chance before Roberts and Alito, as of now, it's in the 1% range.

Which is fine with me.

...amendment is protect ourselves from the tyranny of those like ProudDad who would try to take those very rights away.

if you don't like them, don't have one- but don't try to impose YOUR choice on the rest of society.

same thing goes for pot and prostitutes.

This will be THE issue of the 2008 election. Watch. The Repukes will work their dumbass members into a frenzy over the loss of guns in the home. Bank on it.

J

...and it stops being a losing electoral issue for our party.

Not having that right sure hasn't done much to lessen crime in D.C. or any other city with this type of ban. This may be the one time I agree with this SCOTUS. If they uphold the ban I'd be flabbergasted!