2nd Amendment On Trial

According to FOXNews, after a week of delaying their decision on whether or not to hear the case, the US Supreme court confirmed Tuesday, November 20th, 2007 that they would in fact finally decide if 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 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 case is District of Columbia v. Heller, 07-290. Arguments will be heard early next year. It looks like, after decades of confusion and speculation, the official interpretation of what rights are guaranteed by the US Constitution’s 2nd Amendment will finally be decided. To my mind it’s long overdue.

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16 Responses to “2nd Amendment On Trial”

  1. Christy Says:

    Eager to hear the decision rendered.

  2. Pistol Pete Says:

    While I appreciate the passion of people declaring their right to own guns, I just don’t see it addressed in the 2nd Ammendment. It would seem to me we would need to amend the ammendment to replace “militia” with “individual”.

    It will be interesting to hear what the Court says.

  3. jonolan Says:

    Obviously, given the tenor of my post, I’m eager to hear the results myself. Though I’m expecting that, at best from my perspective, the Supreme Court will deliver a very specific ruling on the District’s total gun ban.

    I doubt that the ruling will be able to easily be used to truly protect legitimate private firearm ownership. That sort of ruling has become the trademark of the US Supreme Court.

  4. Robert Roels Says:

    According to my understanding of common law, even if the court decides in favor of the militia ruling, they have to consider society’s norm over the centuries, and gun ownership has always been part of life.

    I bought my first rifle, a WW1 Lee Enfield at 12 years of age, legally. I have not owned guns or fired one in twenty years.

    The problem is two fold. Countries that do not allow firearms are generally less murderous among its peoples. It’s hard to kill 30 people at once with a knife. An AK-47 does wonders. Because the US is saturated with firearms, the law abiding citizens may give them up, but the bad boys aren’t stupid, and they won’t.

    The second issue is one of Liberty. Freedom and privacy are being eroded at a rapid rate. If the population was unarmed, what nonsense would the government think of doing?

    I am a peace loving man, and resort only to violence if the need arises, such as preventing someone from suffering at the hands of another. So I personally don’t care for guns, but I am starting to think they may be a necessary evil. I am still debating that one with myself.

  5. jonolan Says:


    Constitutional Law is completely separate from- and often at odds with Common Law. There is no requirement for the US Supreme Court to “to consider society’s norm over the centuries.”

    A peace loving citizen must sometimes be willing and ready to to put aside their personal preferences and take up arms in order to ensure the proper balance of peace and liberty.

  6. Joey @ Pheistyblog Says:

    The “Militia Only” argument set forth assumes that the framers did not anticipate a governmental oppression, which is totally unfounded. The framers did anticipate a governmental oppression, because they had just escaped one. They formed the republic out of necessity to protect themselves from the British, and none of them particularly wanted a federal government.

    So when I read the Second Amendment, which 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. ”

    …I think about the circumstances by which this was decided upon, and the words “the right of the people”, means explicitly “the right of the people”, not “the right of the people’s State” (Yikes! Sounds rather “communistic” that way, doesn’t it?). The framers knew full-well that a well-regulated militia could easily turn into an “oppressive force of government”.

    Also, when you keep in mind the right of the people to assemble as stated in the first amendment, it seems only natural that the following second amendment would address the people’s right to keep and bear arms. Therefore, if the government becomes militarily oppressive against its own people, the people have recourse to protect themselves, and to assemble to fight the oppression. If they have no firearms, they have no protection from an oppressive government.

    One of the first things that Hitler did when he came into power was take away firearms from the Jews. If we look at our history, all oppressive governments took firearms away from the people. Defenseless people are much easier to oppress.

  7. robert roels Says:

    Hi Jonolan;

    You’re right about constitutional law. Its the foundation of American jurisprudence, but does the Supreme Court not have to use the rules established by common law in order to interpret and judge issues that bring the constitution into play?

    I also agree with you about taking up arms to secure liberty, as distasteful as that may be to some, without which, we may as well don our own shackles and leg irons and walk ourselves over to the rock pile.

    The Supreme court has made a few questionable decisions lately, and the one involving eminent domain supporting one man’s desire to take another’s property in the name of progress, was a blow to the constitution.

    Like the Sargent said on Hill Street Blues, “be careful out there!”

  8. jonolan Says:


    You are exactly right! The founding fathers expressly added the 2nd Amendment for the purpose of guaranteeing that the American People could withstand and prevent tyranny by our own government. Personal protection was a secondary though still important consideration in the formulation of the Amendment.

    Thanks for stopping by and commenting!


    I do not believe that the Supreme Court is required or even encouraged to consider Common Law and current usage when determining the constitutionality of any legislation or action. I’m not sure though.

  9. Steph Says:

    I’ve always found this debate odd, the wording emphatically clear that the citizens has an unconditional right to bear arms. The need for a militia is asserted as self-evident. I can’t see how the judiciary can find in favour of D.C. without legislating from the bench.

  10. Steve Hiott Says:

    I own numerious firearms including pistols, rifles and shotguns. I even have a BB gun. I too am interested in the outcome. I strongly support the rights of indivuals to own guns. Saying that let me also state that the misuse firearms should be dealt with harshly. Using a firearm or any weapon for that matter in a crime should have penalites in addition and seperate from the price to pay for the crime itself. Regristration is something that I would support if enough safeguards were in place to keep the government in check (might be impossible) I for one beleave government do anything to try and consolidate it’s power and is reluctant to give up any that it has accuired. Anything that is done to restrict the possession of firearms will inherently penalize some innocent people and that has to be kept to a minimum.

  11. Original 2nd Amendment | Reflections From a Murky Pond Says:

    […] 2nd Amendment On Trial […]

  12. jonolan Says:


    Thanks for stopping by and commenting! I’ve been awaiting you with baited breath 😛 Sadly though the founders of America held many truths to be self evident, our courts seem less intuitive. I do hope for a positive ruling though.


    I agree completely. The correct way to deal with crimes involving firearms is through legislation based on crime, not disarming the people. No government that believes it enjoys the faith of its people desires to disarm that people. No government that doesn’t believe it enjoys the faith of its people should be allowed to disarm its people! Neither Hitler no Stalin were positive role models for governance.

  13. Steph Says:

    Thanks Jonolan 🙂

    I’ve read your other post on this. I agree. It does seem to me like legislating from the bench. It reminds me of Roe V Wade, whatever your position on abortion, the judgement was logically perverse. It seems to me the Supreme Court sometimes sit as legislators.

  14. jonolan Says:


    I’ll have to bow to your far greater expertise in the field of Law when it comes to the possible logical perversion of any court ruling. In the US the Supreme Court does – through its interpretations of Constitutional Law – effectively sit as legislators. That is why Supreme Court appointments are argued so vehemently by the Executive and Legislative branches of the US government.

  15. jonolan Says:


    On January 4, the District of Columbia filed its brief in District of Columbia v. Heller, now before the U.S. Supreme Court. The District is appealing the U.S. Court of Appeals for the District of Columbia Circuit’s ruling that found D.C.’s bans on handguns, on having any gun assembled for use within the home, and on carrying a firearm within the home without a permit, violate the Second Amendment.

  16. DC v. Heller - It's On! | Reflections From a Murky Pond Says:

    […] today, March 18, 2008, the U.S. Supreme Court is hearing arguments on District of Columbia v. Heller, Case #07-290. Finally, after over 70 years the US Supreme Court will hear a case whose basis is […]

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