Heller Of A Decision

On Thursday, June 26, 2008, The US Supreme Court gave its ruling on DC v. Heller. In a 5-4 decision the SCOTUS ruled that the District of Columbia’s gun ban was unconstitutional.

The Majority Opinion held that:

  1. 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.
    1. The Amendments prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clauses text and history demonstrate that it connotes an individual right to keep and bear arms.
    2. The prefatory clause comports with the Courts interpretation of the operative clause. The militia comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens militia would be preserved.
    3. The Courts interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment.
    4. The Second Amendments drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
    5. Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Courts conclusion.
    6. None of the Courts precedents forecloses the Courts interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

  2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Courts opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Millers holding that the sorts of weapons protected are those in common use at the time finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
  3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The Districts total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny
    the Court has applied to enumerated constitutional rights, this prohibitionin the place where the importance of the lawful defense of self, family, and property is most cutewould fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. 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.

The full text of the Opinion can be downloaded here.

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DC v. Heller – It’s On!

Starting 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 whether the 2nd Amendment to the US Constitution is an individual right or a collective right.

A couple of quotes relevant to the issue:

[Those] who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right [are] courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.

— Alan Dershowitz
Harvard Law School

Quemadmodum gladius neminem occidit, occidentis telum est
(“A sword is never a killer, it’s a tool in the killer’s hands”)

— Lucius Annaeus Seneca “the younger”
circa (4 BC – 65 AD)

The Supreme Court’s ruling is expected by the end of June. It is obvious that the ruling could have a far-reaching impact on gun control laws in the United States. What seems less obvious to the US populace in general is that the court’s ruling could also have far reaching impact on the fundamental freedoms of every single person in the US.

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D.C. Is Imaginative

On January 10, in a unanimous 3-judge decision the District Columbia Court of Appeals found that the federal “Protection of Lawful Commerce in Arms Act” (PLCAA) blocked lawsuits under D.C.’s “Strict Liability Act.” This was a significant victory for both he Rule of Law and for Civil Rights.

Washington D.C.’s “Strict Liability Law” had tried to make manufacturers, importers, and dealers liable “without regard to fault or proof of defect” for illegal use of firearms. This is a principle that has been rejected by nearly all US courts that have ever looked at the issue. In this case (District of Columbia v. Beretta, U.S.A.), the D.C. government tried to sue to recover health care and emergency services costs supposedly created by criminal gun use in the District.

District Columbia Court of Appeals described the District Government’s arguments “imaginative,” and court found that D.C.’s lawsuit didn’t fall within any of the PLCAA’s exceptions for legitimate suits, and that allowing the suit would “frustrate Congress’s clear intention” in passing the PLCAA. The court also found that the PLCAA is constitutional, both in terms of separation of powers and due process.

Previously, in 2002, D.C. Superior Court Judge Cheryl M. Long threw out this same reckless lawsuit, rejecting the nuisance and negligence claims and concluding that a 1990 statute, the Assault Weapon Manufacturing Strict Liability Act, was unconstitutional.

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Original 2nd Amendment

Because my previous post, 2nd Amendment On Trial, had generated a goodly amount of interest and commentary I felt that it might be interesting and potentially valuable to make a post regarding the original form and intent – as best as can be derived through historical sources – of the Second Amendment.

On June 8, 1789 James Madison introduced the Bill of Rights to the first session of the first congress of the U.S. House of Representatives. Within was contained what was to become the 2nd Amendment. His original text follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Annals of Congress,
House of Representatives, 1st Congress, 1st Session: pp. 451

It is pertinent to note that The Bill of Rights was not originally intended to composed of numbered amendments to be added at the end of the Constitution. These Rights instead were to be inserted into the existing text of the Constitution. The Second Amendment was to be inserted in the First Article, Section Nine, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all which are individual civil rights asserted by individuals as a defense against government tyranny.

On August 17, 1789 The House entered the following reworded 2nd Amendment into the House Journal:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.

Annals of Congress,
House of Representatives, 1st Congress, 1st Session: pp. 771

The House of Representatives debated the revised Amendment until August 24. This debate primarily centered on the possibility that the future US government could use the “but no person religiously scrupulous shall be compelled to bear arms” clause to disband the militia. This was resolved on August24, 1789 and a reworded the 2nd Amendment was sent to the U.S. Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

Journal of the Senate of the United States of America,
Volume 1: pp. 63

This modification to the Amendment prevented the government from using the religion of any of its people as a means to disband the US militia made up of the body of the people. They couldn’t claim that Thou Shalt Not Kill or An It Harm None, Do As You Please were religious mandates that would prevent States or communities from raising a fighting force in their own defense.

Sadly, between September 4 and September 9, 1789 the Senate voted to change significantly the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause. The final version to leave the Senate was:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Journal of the Senate of the United States of America,
Volume 1: pp. 71

This abbreviated version of 2nd Amendment was sent to the House of Representatives on September 9, 1789 and was voted on and accepted on September 21, 1789. Strangely the Amendment was modified somewhat during the course of this – without further ratification by the Senate. The final version that the House sent to the States for ratification was:

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.

Journal of the House of Representatives of the United States,
Volume 1: pp. 305

As you can see the 2nd Amendment underwent a great deal of revision just in course of its birth. What we have today bears little resemblance to what was originally intended and written. History is unclear on the reasons for many of the revisions. One thing remained clear in the course of all the debates and revisions though – the primary purpose of the 2nd Amendment to the US Constitution was to guarantee that the People had the means to protect their liberty from the possible tyranny of our own government.

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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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