I started researching the 2nd Amendment in anticipation of Obama’s 1-3 potential Supreme Court Justus appointments and I’m not happy with what I have read so far. It seems the 2008 D.C. v. Heller Supreme Court ruling on an individual’s right to bear arms is functionally useless for law abiding private citizens unless deemed otherwise by the state they reside.
I'm hoping someone who knows better will show me that I'm wrong - but this is what I have so far.
In the case of Heller, who sued the District of Columbia because they would not allow him to even apply for a handgun permit, the Supreme Court ruling stated:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” (Page 1 of 157)
“Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.” (Page 3 of 157)
http://www.guncite.com/Heller.pdf
The Supreme Court leaves the requirements for getting a handgun license up to the States – but ruled that it is unconstitutional for a state to have no process to license a private citizen a handgun.
But then I read this, from a separate court ruling, and it flies in the face of the D.C. vs. Heller ruling.
"The Second Amendment guarantee of the right to bear arms does not apply to override state firearms bans, the U.S. Court of Appeals for the Second Circuit declared Jan. 28. Under the incorporation doctrine, only certain provisions of the Bill of Rights apply to the states, and the Second Amendment is one of those that does not, the Second Circuit held (Maloney v. Cuomo, 2d Cir., No. 07-0581-cv, 1/28/09)."
http://lawprofessors.typepad.com/cri...d-circuit.html
Findlaw.com explained it by saying,
“In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ''individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units. Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.”
http://caselaw.lp.findlaw.com/data/c...n/amendment02/
I have a hard time understanding how this is justifiable with the Supreme Court establishing:
“…the Second Amendment right is exercised individually and
belongs to all Americans.” (Page 10 of 157)
“…guarantee the individual right to possess and carry weapons in case of confrontation.”
“The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” (Page 19 of 157)
“…does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.” (Page 26 of 157)
http://www.guncite.com/Heller.pdf
Old thread but current topic.
(As if we didn't expect this kind of response)
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