19 March 2008

Supreme Court Will Rule In Favour Of 2nd Amendment

From the Financial Times and My Way News, word that the Supreme court has ruled for individual possession of firearms.

Bravo, Supreme Court. Intellectually, historically, legally, there was only one way they could have ruled: in favor of the individual right to bear arms over some amorphous-collective-militia.

Any student (including BYU's American Heritage students, with whom we, as former TA, are well acquainted) of the Constitution knows that the Bill of Rights were written to guarantee the rights of the individual against incursions from the government. The fear when writing the Bill of Rights was that government would assume it could do anything not specifically prohibited by the Bill of Rights.

But some Founders, rather than worrying about the tale (Bill of Rights) wagging the dog (Constitutionally outlined powers), anticipated correctly the exponential growth of government and knew that citizen's individual rights would need to be protected. Thus, the "afterthought" of the first ten Amendments to the Constitution--the Bill of Rights.

So, summary: the Bill of Rights were written to protect the rights of the indivudal--the 2nd Amendment is no different to all the rest. Fortunately, the anti-2nd Amendment judicial activism du jour did not persuade swing-voter Anthony Kennedy.

Score one for Constitutional originalism.

*UPDATE 19 March 1:43am: The Left Fires a Counter-Volley, Meet the NRA's little known, highly influential opponents (subscription required, email us if you'd like to receive a digital copy of the article).


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3 comments:

Spikers said...

A few things:

1. The Supreme Court has not actually ruled yet.

2. It is uncertain what the Court will actually decide. It is possible they will find a limited individual right to bear arms. It is possible they will rule on the reasonableness of the D.C. regulation. We will not know until the Court actually rules. The Court probably will not rule until June

3. The issue is not nearly as clear cut as you make it out to be. The Second Amendment states, " 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."

This language, as so much Constitutional language, is less than perfectly clear. Following is an explanation of the law from American Law Reports, an authoritative legal research resource.

"The common law did not recognize any absolute right to keep and bear arms (Burton v Sills (1968) 53 NJ 86, 248 A2d 521, 28 A.L.R.3d 829, app dismd 394 US 812, 22 L Ed 748, 89 S Ct 1486). During the American colonial period, there had been great fear of military rule, the colonists believing that standing armies were acceptable only in extraordinary circumstances and under control of civil authorities, and that a militia was the proper organ for defense of the individual states (Burton v Sills (1968) 53 NJ 86, 248 A2d 521, 28 A.L.R.3d 289, app dismd 394 US 812, 22 L Ed 748, 89 S Ct 1486).

The United States Constitution gave Congress the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions (Article I, § 8, clause 15) and the power to provide for organizing, arming, and disciplining the militia (Article I, § 8, clause 16). The Second Amendment was adopted to quiet the fears of those who thought that the congressional powers under Article I, § 8, clauses 15 and 16, with regard to the state militias, might have the effect of enervating or destroying those forces (Commonwealth v Davis (1976, Mass) 1976 Adv Sheets 688, 343 NE2d 847). Thus, the Second Amendment reflects an historic distrust of standing armies and the desire that state militias be protected from federal encroachment (Burton v Sills (1968) 53 NJ 86, 248 A2d 521, 28 ALR3d 829, app dismd 394 US 812, 22 L Ed 748, 89 S Ct 1486).[FN2]"

In line with the history of the Second Amendment, the courts have interpreted the Second Amendment right to keep and bear arms very narrowly. Thus, although there is a small amount of early authority to the contrary, the general view is that the Second Amendment is a limitation only on the powers of the Federal Government and not on the powers of the states (§ 3, infra). It has also been held that the right, under the Second Amendment, to keep and bear arms, is a collective right rather than an individual right (§ 4, infra). Furthermore, following the Supreme Court's opinion in United States v Miller (1939) 307 US 174, 83 L Ed 1206, 59 S Ct 816, infra § 5, the courts have held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the "well regulated militia" provision of the Amendment (§ 5, infra). Although this last-mentioned rule is frequently stated, and although the Supreme Court's opinion in United States v Miller, supra, is frequently cited for this rule, there is some confusion among the courts and commentators as to exactly what this rule means, and as to whether the Supreme Court in United States v Miller was in fact laying down a general rule at all (§ 5, infra).

Over the years litigants (usually defendants in criminal prosecutions) have argued that particular federal statutes, state statutes, or local ordinances regulating weapons were, either on their face or as applied, in violation of the Second Amendment right to keep and bear arms. The courts, taking a very restrictive view of the Second Amendment right as discussed above, have rejected these contentions in almost every case. Specifically, the courts have held that various provisions of the National Firearms Act (26 U.S.C.A. §§ 5801 et seq.) do not violate the Second Amendment right to keep and bear arms (§ 6, infra). Provisions of the Gun Control Act of 1968 (18 U.S.C.A. §§ 921 et seq.) and provisions of a predecessor statute (the Federal Firearms Act) have similarly been held not to violate the Second Amendment right to keep and bear arms (§ 7, infra). It has also been held that provisions of the Omnibus Crime Control and Safe Streets Act of 1968 prohibiting certain persons from receiving, possessing, or transporting firearms (18 App. U.S.C.A. §§ 1201, 1202) do not violate the Second Amendment (§ 8, infra). Section 414 of the Mutual Security Act of 1954 (former 22 U.S.C.A. § 1934), the predecessor of § 38 of the Arms Export Control Act (22 U.S.C.A. § 2778), has also been held not to violate the Second Amendment (§ 9, infra).

In almost all cases, state statutes and local ordinances prohibiting the carrying or possessing of concealed or dangerous weapons have been held not to violate the Second Amendment right to keep and bear arms (§ 10, infra). It has also been held that various state statutes and local ordinances prohibiting particular classes of persons from possessing firearms did not violate the Second Amendment (§ 11, infra). Various state statutes and local ordinances dealing with the registration and licensing of weapons (§ 12, infra) and miscellaneous state and local firearms regulations (§ 13, infra) have also been held not to violate the Second Amendment.

Although almost all cases in which the Second Amendment right to keep and bear arms has been construed have involved the validity, under the Second Amendment, of particular statutes and ordinances, in a very few cases the Second Amendment right has been applied in different contexts (§ 14, infra).

Since the Second Amendment right to keep and bear arms has been construed by the courts so narrowly, and since statutes and ordinances regulating firearms have been upheld against a Second Amendment challenge in almost every case, it is not surprising that at least one commentator has argued that the right to bear arms is becoming anachronistic.[FN3] In any event, it should be noted that since its 1939 opinion in United States v Miller (1939) 307 US 174, 83 L Ed 1206, 59 S Ct 816, infra § 5, the United States Supreme Court has remained silent on the application of the Second Amendment to firearms regulation.[FN4]

Spikers said...

Also Jake, why are you such a staunch supporter of originalism? I would be interested to know you reasoning.

MJ's Fake Name is MJ said...

Jake, you love Constitutional Originalism for the same reason I love throw back jerseys...Because we are tremendous nerds. Times change, get a grip conservative america!

Please rock this website:

http://straightcashhomey.net/page/4

You know, Im a lot less interested in the debate over whether we should have guns as I am interested in asking: Do we NEED guns?

I really dont know the answer, and Im not talking about war. Aren't there so many other weapons that we could equip ourselves with? How many kinds of knife are there? And what about tazers and laser guns? I think violent crimes would be deterred if people were forced to use whips or those nun-chucks (sp?), I think Nintendo makes the latter weapon now for kids. Do they make a knife that can go through Kevlar? Throwing stars are always popular, just think how substituting those for guns in the world would change things. I guess we are stuck with guns, and guns will continue to be more powerful than we are...plus, we need guns to gather food. Perhaps Chris Rock had it right when he suggested bullets cost so much, people have to think wisely about using them.

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