2nd Amendment

[CoLawman]

WASHINGTON - An announcement could come as early as today whether the Supreme Court will hear a case challenging Washington's 31-year ban on handguns.

It would be the high court's first serious look at the Second Amendment in nearly 70 years.

A lower court struck down the Washington ban as a violation of the Second Amendment rights of gun ownership.


http://www.msnbc.msn.com/id/21768070

[The Reaper]

I hope that they take it, and I am really glad that President Bush put his two justices in already.

Fingers crossed....

TR

[rubberneck]

Originally Posted by The Reaper

I hope that they take it, and I am really glad that President Bush put his two justices in already.

Fingers crossed....

TR

It is too bad the Bush Sr. missed so badly on Souter, as the outcome of the Parker case would be a fore drawn conclusion.

[The Reaper]

Originally Posted by rubberneck

It is too bad the Bush Sr. missed so badly on Souter, as the outcome of the Parker case would be a fore drawn conclusion.

Kennedy doesn't strike me as a Reagan conservative either.

TR

[rubberneck]

Originally Posted by The Reaper

Kennedy doesn't strike me as a Reagan conservative either.

TR

True but he isn't a spineless liberal like Souter. At least 70% of the time Kennedy can be counted on to honor the framers original intent. Bush senior tried to get cute with a stealth candidate and it bit him in the rear end. Two other men considered by Bush Sr. at the time were Ken Starr and Ted Olsen. What could have been....

[DanUCSB]

Originally Posted by The Reaper

I hope that they take it, and I am really glad that President Bush put his two justices in already.TR

Here's to hoping. If there ever were a time in recent history to make a definitive ruling on the 2nd Amendment, it's with this court.

However, the risk-averse bit of me wonders if it would be better just to let the lower court precedent stand, as--while it's still a weaker ruling than a potential SCOTUS ruling--it's still a usable precedent for other jurisdictions. It's the big-risk/big-payoff scenario... while I don't think the Court could go the wrong way, they've done so before, and that could be disastrous. Not that it matters what I wish; the gun-grabbers were going to push it up to the Court anyway.

Here's to hoping.

[82ndtrooper]

SCOTUS decided to postpone D.C's repeated requests for a higher court ruling.

WASHINGTON, Nov. 13 (UPI) -- The U.S. Supreme Court declined to tinker with the Second Amendment, ignoring petitions from the District of Columbia on its Tuesday orders list.

The court didn't explain its decision but Scotusblog reported justices may want more time to consider the petitions or reworking the questions it is willing to review.

The District wants the court to determine how the Second Amendment should be defined (District of Columbia vs. Heller) and a cross petition seeks a ruling on who can challenge laws before they are actively enforced (Parker vs. District of Columbia). The justices are expected to look at the cases again next week.

The court did agree to hear a case involving how much can be recovered for paralegal services where the winning party is seeking attorneys fees (Richlin Security Service vs. Chertoff).

The court also directed the U.S. solicitor general to provide an opinion on whether an immediate appeal can be filed if a federal judge rejects a government request to dismiss a case against a foreign government (Exxon Mobil Corp. vs. Doe I, et al).


© 2007 United Press International. All Rights Reserved.


Personally I'm comfortable with the lower court ruling in Parker et al vs District of Columbia. IIRC SCOTUS can postpone hearing the case indefinetly or reconsider it later this month.

I don't want to cross my fingers in the hopes of the higher court ruling for an individual rights model. On the other hand, I don't want SCOTUS to hear the case if the next POTUS is that woman and she appointments a couple of hippies that still have their ticket stubs to Woodstock to decide my personal liberties. Just a thought.

[The Reaper]

http://www.latimes.com/news/opinion/...nion-rightrail

Unholster the 2nd Amendment

The Supreme Court, in weighing D.C.'s handgun ban, has a chance to reaffirm the right to own guns.

By Robert A. Levy
November 14, 2007

It's been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the 2nd Amendment. It's been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It's been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban -- among the most restrictive in the nation -- unconstitutional. The obvious incongruity of those three events could be resolved soon.

Later this month, the Supreme Court will decide whether to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals. If the high court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. (Full disclosure: I am co-counsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)

The stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged 2nd Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations.

Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun control laws across the nation could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated.

The first is the knotty question of whether the 2nd Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But in the aftermath of the Civil War, much of the Bill of Rights was considered "incorporated" by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the 2nd Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.

The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.

Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder). Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing.

But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.

Meanwhile, the high court also will have to reexamine its 1939 gun case, United States vs. Miller, which generated more heat than light regarding the 2nd Amendment. The core holding of Miller, stripped of confusing clutter, was that protected weapons must be "in common use" and must bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia."

Parker is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently "in common use," and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the 2nd Amendment should not attempt to link each and every weapon to the militia -- except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.

Significantly, the 2nd Amendment refers explicitly to "the right of the people," not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties.

That is why there has been an outpouring of legal scholarship -- some from prominent liberals -- that recognizes the 2nd Amendment as securing the right of each individual to keep and bear arms.

Considering the text, purpose, structure and history of our Constitution, and the clear weight of legal scholarship, it's time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.

[82ndtrooper]

Thanks for the post TR.

"In common use" IIRC Miller vs USA was a court ruling concerning a sawed off shotgun taken across state lines and without proper registration. The phrase "In common use" has far more wide reaching meaning today than it did 68 years ago.

I'm going to take a couple of guesses here. Since 9-11 2001 sales of AR15's and it's varients have skyrocketed, probably more than any other rifle currently being manufactured. Since the sunset of the AWB in September of 2004 I'm guessing that the AR15 and it's varients are the majority of rifle sales nation wide. It has a military purpose and it's obviously in common use. This would hold true of handguns as well. I believe the FFl's have reported some 8,000,000 firearms sold per anum since September 11th 2001. Sawed off shotguns may not have not seen wide spread or "common use" but I'm sure we can find plenty of 10" Remington breechers in the hands of the soldiers currently fighting the War on Terror.

How many AR15 manufacturers would go belly up if an outright ban on the AR15 would become federal law ? How many would lose their employment ? Would Bushmaster and Olympic simply have to rely on military and LEO sales ? I don't see this happening, but it's worth pondering should the RKBA and it's protection under the 2nd Amendment become defined as a collective rights model with only the militia being it's frame work.

[82ndtrooper]

Fox News, November 20th, 2007


WASHINGTON — The Supreme Court said Tuesday it will decide whether the District of Columbia can ban handguns, a case that could produce the most in-depth examination of the constitutional right to "keep and bear arms" in nearly 70 years.

The justices' decision to hear the case could make the divisive debate over guns an issue in the 2008 presidential and congressional elections.

The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday's announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.

The main issue before the justices is whether the Second Amendment of the Constitution protects an individual's right to own guns or instead merely sets forth the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.

Gun-control advocates say the Second amendment was intended to insure that states could maintain militias, a response to 18th century fears of an all-powerful national government. Gun rights proponents contend the amendment gives individuals the right to keep guns for private uses, including self-defense.

Alan Gura, a lawyer for the D.C. residents who challenged the ban, said he was pleased that the justices were considering the case.

"We believe the Supreme Court will acknowledge that, while the use of guns can be regulated, a complete prohibition on all functional firearms is too extreme," Gura said. "It's time to end this unconstitutional disaster. It's time to restore a basic freedom to all Washington residents."

Paul Helmke, president of the Brady Center to Prevent Gun Violence, said the Supreme Court should "reverse a clearly erroneous decision and make it clear that the Constitution does not prevent communities from having the gun laws they believe are needed to protect public safety."

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, when the court ruled that a sawed-off shotgun was not a weapon that would be used in a militia. Chief Justice John Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

The Second Amendment reads: "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."

Washington banned handguns in 1976, saying it was designed to reduce violent crime in the nation's capital.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

The District is making several arguments in defense of the restriction, including claiming that the Second Amendment involves militia service. It also said the ban is constitutional because it limits the choice of firearms, but does not prohibit residents from owning any guns at all. Rifles and shotguns are legal, if kept under lock or disassembled. Businesses may have guns for protection.

Chicago has a similar handgun ban, but few other gun-control laws are as strict as the District's.

Four states — Hawaii, Illinois, Maryland and New York — urged the Supreme Court to take the case because broad application of the appeals court ruling would threaten "all federal and state laws restricting access to firearms."

Dick Anthony Heller, an armed security guard, sued the District after it rejected his application to keep a handgun at home for protection.

The laws in question in the case do not "merely regulate the possession of firearms," Heller said. Instead, they "amount to a complete prohibition of the possession of all functional firearms within the home."

If the Second Amendment gives individuals the right to have guns, "the laws must yield," he said.

Opponents say the ban plainly has not worked because guns still are readily available, through legal and illegal means. Although the city's homicide rate has declined dramatically since peaking in the early 1990s, Washington still ranks among the nation's highest murder cities, with 169 killings in 2006.

The U.S. Court Appeals for the District of Columbia Circuit ruled 2-1 for Heller in March. Judge Laurence Silberman said reasonable regulations still could be permitted, but said the ban went too far.

The Bush administration, which has endorsed individual gun-ownership rights, has yet to weigh in on this case.

Arguments will be heard early next year.

The case is District of Columbia v. Heller, 07-290.

[HOLLiS]

For me 2nd Amendment is not about weapons. It is about

Self determination,

self government

Checks and balance.

and my favorite:


FREEDOM.

[82ndtrooper]

Originally Posted by HOLLiS

For me 2nd Amendment is not about weapons. It is about

Self determination,

self government

Checks and balance.

and my favorite:


FREEDOM.

I wish it where that easy. I've read all the sections of the Federalist papers concerning the right to keep and bear arms. Even as a laymen it is clearly spelled out by the authors, Hamilton, Jefferson, Jay et al that the right to keep and bear arms was intended to be an "individual right" and that the firearm was to be secured by all able bodied men ready to stand as the militia, and for personal defense. There is never a mention of "hunting" or "sport shooting" in any sentence of the Federlist papers concerning this matter. (pro gun control pundits seem to use this as their justification for restrictions on certain types of guns)

SCOTUS has a tendency to use the word "reasonable" in their findings. This case it could become "reasonable restrictions" while still being found to be an individual right. A semi auto handgun may be perfectly reasonable to you and I and the others on the forum, however it's easy to conclude that "reasonable" in the hands of state and city politicians could only include black powder rifles.

For 31 years the District of Columbia mayors have found that banning handgun ownership was a "reasonable restriction" If the writings of the Supreme Court of the United States in this case wavor with 50/50 type interpretation as I have described, the right to keep and bear arms as we know it could fall flat out of existance.

Hold onto your seats sports fans and cross your fingers.

[HOLLiS]

Actually, IMHO, it is simple. We the people are the final check to government. Regardless what congress does, regardless of what the executive branch does, regardless of the supreme court, we the people are the final authorities.


It could be possible that tomorrow the Reichstag can be burnt down and that the party in power can assume control of the country. (not likely though). The power to resist and maintain control rest in the hands of the people. The trust in freedom is NOT the government, it is the people.

Out preamble affirms this:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."


Notice it is not the government of the US............. It is the people.

[NotME]

I could be wrong, but the way I see it - If this case goes the wrong way, you guys in California better move fast! My guess is that a whole lot of liberal State politicians will see that as a green light to proceed with their agenda - and traditionally California has been right out in front on things like this.

[The Reaper]

Originally Posted by Broadsword2004

True, it's supposed to be like that, but from my understanding, Supreme Court decisions are the law of the land. If they make something law, that doesn't always mean it's correct, but it's the law. The way to get the law in our favor is by electing Senators and Presidents, who will then also hopefully appoint the Supreme Court justices we want.

Not a lawyer, but I seem to recall that the Judiciary is not a legislative body. That is the province of the Legislative Branch.

The SCOTUS renders final decisions (pending additional legislation) on the Constitutionality and legality of laws, among other things.

TR