SCOTUS Hears Landmark Gun Ownership Case

[Pangloss]

There was fascinating Supreme Court debate yesterday over gun ownership. For the first time in 70 years the Supreme Court is going to consider, and perhaps finally resolve, one of the great unanswered questions in US constitutional law. The case involves a total ban on handguns in (ironically?) Washington, D.C., which has been in place for over 30 years but has more or less failed to stop handgun violence.

 

Opponents accuse the ban of being unconstitutional, and in most parts of the US lawmakers would agree (in fact over 300 congressmen & women signed an amicus brief to that effect). The D.C. mayor has a different view, and his view does have its supporters. Here's what the 2nd Amendment actually says:

 

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.

 

The question has always been whether the amendment actually guarantees the right of gun ownership to individuals, or if it's just talking about "militias". Both sides have their fair share of logical points, such as the fact that it initially is talking about militias, or the fact that the second half of the sentence seems clearly in favor of ownership.

 

The fact that the question remains unresolved must surely be tempting to current Court members, and this motivation reportedly was obvious in debate yesterday. Most observers seemed to feel that most of the justices agreed with the lower court that the ban violated the 2nd amendment, but it's dangerous to predict these things.

 

I am in favor of gun control, but opposed to a total ban. I think there's a lot to be said for private home ownership of handguns, but I also think there should be required education and licensing, as there is in many if not most states and localities. (At least one town in Georgia actually REQUIRES all citizens to own a firearm!)

 

But the real interest here for me lies in the process itself. The debate, the discussion, the weighing of interests and freedoms. Quite fascinating.

 

What do you all think?

[ecoli]

apparantly, they're not going to reach a decision until the end of next month...

 

It's an interesting and landmark case, but don't hold your breath!

[bascule]

I'm a strong advocate of gun rights, but not so much the Second Amendment.

 

Personally I would like to see the Second Amendment removed from the Constitution simultaneous with the insertion of the same text into all state constitutions. States can then decide from there what their gun ownership policies should be.

[Sisyphus]

I'm wondering what, if any, interesting arguments will be raised. There has always been sharp disagreement about the Second Amendment, but hardly any actual debate. Because honestly, what is there to say? It's ambiguous. Clearly it is talking about militias, but who's to say how far it extends beyond that? (Well, SCOTUS, I guess.) You can talk endlessly about what would be the best policy, but actual Constitutional arguments?

 

The frustrating thing about it is that its authors apparently didn't put that much thought into it, assuming its meaning and applications would be clear. That is, that Britain dissolved colonial militias in a bid to prevent rebellion, which skewed the balance of power and unnecessarily put the colonists in extra danger in dangerous times, and they wanted to make sure the federal government didn't do the same thing to the states. Ok. What would they think about me keeping an anti-aircraft missile launcher in my apartment? Who knows. What is for sure is that they didn't think about it.

[Pangloss]

Well that's one way to look at it, but another is to say that the militia clause was just a way to emphasize the importance of gun ownership in the sentence. It also makes sense, because the phrase is otherwise kinda pointless -- Captain Obvious wasn't a Framer. (grin)

[ParanoiA]

So do militias get to have missle launchers then?

 

I'd like to see the second amendment revisited and rewritten, ratified, the whole nine yards - if that's even possible?. If so, now is a great time. The current administration stirs up the much needed reminder to the american public that oppressive federal power can be directed on its people with the right excuses. So maybe that helps people understand the check value in being armed, at least in principle.

 

At the same time, we have the luxury of hindsight. Plenty of history of gun laws and regulation to examine, so we can debate with real data. Would be nice to dig in and grind out the dynamics and rediscover the principles that we should stand on, and rewrite the damn thing - clearly this time.

[CDarwin]

I heard an interesting quip on NPR today half asleep going to school. Someone pointed out that the 18th century context of "bearing arms" certainly wasn't deer hunting. It implies a martial state.

 

Thus, the 2nd Amendment barely even addresses the current gun control arguments, because they are almost always couched in the terms of common, civilian use.

[Sisyphus]

EDIT: This was a response to post #5.

 

Well yeah, exactly. You can say the existence of the various National Guards fully satisfies it (there's your state-based militia, alive and well and anyone can join), or you can say that if I'm asked to register my homemade ICBM, then the terrorists have won. (After all, would that not be an "infringement?") I can't imagine a decisive argument to be made, so we're mostly left with arguments about the "best" policy, as opposed to what the Constitution demands.

 

Incidentally, I don't think there is a "best" policy for the whole country. You could call my position "localized pragmatism." Laws that would make sense in Utah or Vermont would make no sense in New York City. No private citizens anywhere should have the ability to shoot down 747s. And nowhere should responsible militias be disbanded, because blatant Constitutional violations are bad for the country.

 

EDIT AGAIN:

 

ParanoiA, no that's not possible. The Constitution is like Wikipedia - the only way to change it is to add to it. Hence the silliness with our 18th and 21st amendments.

[Pangloss]

I'm not sure I understand the localization argument. Are you guys basically saying that it SHOULD vary from place to place, depending on the local criminal and general safety environment?

 

If so it's an interesting point, but I'm not sure I'd agree. This is a highly mobile society, and criminals can go anywhere and attack anyone at any time. Also I've never been a real big fan of state-by-state concepts of civil rights. Either something is a right, or it isn't. And it feels like passing the buck. But maybe it's just me.

[bascule]

Well yeah, exactly. You can say the existence of the various National Guards fully satisfies it

 

That's a common argument I've heard, but as far as I can tell the intention was for the populace as a whole to effectively be a sitting militia, and for there to be no permanent standing army.

[ParanoiA]

That's a common argument I've heard, but as far as I can tell the intention was for the populace as a whole to effectively be a sitting militia, and for there to be no permanent standing army.

 

I believe that's exactly right. And not very damn realistic either. Although, I'll bet we wouldn't be the imperialist police force of the globe if that were the case today. Perhaps this was about more than just keeping the government in check with its people?

[ecoli]

I believe that's exactly right. And not very damn realistic either. Although, I'll bet we wouldn't be the imperialist police force of the globe if that were the case today. Perhaps this was about more than just keeping the government in check with its people?

Are we sure this is the right interpretation? Why would the founding fathers, coming out of a revolutionary war in which we faced an enemy vastly out-trained than us, think that the only force protecting the country should be a militia made up of non-career soldiers? How would that have been good for the country?

 

And wasn't there a 'federal' continental army?

[Pangloss]

Because they didn't trust the concept of federalism. That was the big political divide of the first generation of Americans -- federalism versus a state-centric, loose conjoin. Washington versus Jefferson, if you want it personified.

 

(And btw if you want to see some ug-lee politics, go read some of THOSE newspaper stories! Ho-lee-cow! One of the founding fathers (Madison?) even once called Washington "George the Fourth" over this issue!)

 

--------

 

(Side note: You guys watching the HBO miniseries on John Adams? I've got the first two eps Tivo'd but haven't taken a peek yet.)

[ecoli]

I'll give you that... but isn't there a difference between a 'militia' and a 'state national guard'?

[Dak]

I'm not sure I understand the localization argument. Are you guys basically saying that it SHOULD vary from place to place, depending on the local criminal and general safety environment?

 

If so it's an interesting point, but I'm not sure I'd agree. This is a highly mobile society, and criminals can go anywhere and attack anyone at any time. Also I've never been a real big fan of state-by-state concepts of civil rights. Either something is a right, or it isn't. And it feels like passing the buck. But maybe it's just me.

 

in a city where you're within, say, 5 mins of a police station, you don't really need a gun; however, out in the sticks where the police response time is half an hour you kinda need weapons to look out for yourself. So that's how/why I, personally, think it should be localized.

 

Actually, i'd be inclined to suspect that guaranteeing civillians in the sticks, who need to be able to defend themselves, the right to bear arms and form a militia was the intent of the 2nd amendment.

[ParanoiA]

Are we sure this is the right interpretation? Why would the founding fathers, coming out of a revolutionary war in which we faced an enemy vastly out-trained than us, think that the only force protecting the country should be a militia made up of non-career soldiers? How would that have been good for the country?

 

And wasn't there a 'federal' continental army?

 

No, I'm not sure that's the right interpretation, just a valid one. Pangloss laid it out already, which is why I also stated that it "wasn't very damn realistic". I do believe the founders and framers intended on state militia, with no standing army. This was seen as the components of royalty and monarchy.

 

However, I don't agree with them that we should have no standing army. Perhaps they were right in that we seem to be pretty pleased with ourselves being the world's police force, growing an empire, just like the royalty they despised. However, I don't think militias can realistically protect the US as various militaries advance. I prefer a strong standing army.

 

To be honest, there are several valid points of view here, in terms of interpretation. This is why I'd like to see the second amendment rewritten. Or, I guess, a new amendment to overwrite that one.

 

(Side note: You guys watching the HBO miniseries on John Adams? I've got the first two eps Tivo'd but haven't taken a peek yet.)

 

Oh man, I almost subscribed to HBO just to get this series. I sure hope they do a good job of it and not try to weave modern political ideas into it.

[Mr Skeptic]

So, what do I need to be considered a militia?

[iNow]

(Side note: You guys watching the HBO miniseries on John Adams? I've got the first two eps Tivo'd but haven't taken a peek yet.)

 

Oh man, I almost subscribed to HBO just to get this series. I sure hope they do a good job of it and not try to weave modern political ideas into it.

 

I've heard nothing but good things. I will be watching the first to episodes this weekend at my girlfriend's parents place while we hang out for the Easter holiday. Many of the guys I work with were talking about the show very passionately, as if they were inspired, and they were discussing the parallels of what they did back then and what's happening now in our country... I'm excited. HBO always tend to do a good job with these things (I LOVED Deadwood).

 

 

Back on topic...

 

 

The 2nd amendment was written when society was much different. They didn't have semi-automatics, they didn't have planes to shoot down, hell... they didn't even have cars.

 

There were no police stations, because nearly EVERYONE lived out in the boonies by themselves. Fighting was done by militia because none of the farmers could risk leaving their land for long to join some centralized army. They farmed, and worked, and stayed with their families, and when something came up which needed shooting, they grabbed their musket and went off with their neighbors as a "militia."

 

They were different times.

 

I'm all for gun rights. I think a ban goes too far. In my mind, though, this is more a question about regulation than it is of rights and freedoms.

 

The government should fear the people, not the other way around, and the constitution at it's heart is intended to protect the freedoms of the populace, not remove them.

[D H]

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.

Dang! A sentence as vague and poorly constructed as this one appearing in some middle school essay would have come back marked in red.

Despite its poetic flow, the ablative absolute construction obfuscates understanding. Moreover, why, did you use, all of those, commas? -10 points.

The original version as sent to the states for ratification is a little better, but not much:

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.

Just as the first amendment addresses four distinct rights, I am of the opinion that the second amendment addresses two distinct rights: The right of states to form militias and the right of people to bear arms. Then again, I'm no expert on the ablative absolute construction used in this, amendment.

[bascule]

What I draw from it is more along the lines of

 

"Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

[D H]

"Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

That interpretation certainly differs from mine, and I can certainly see how you could interpret the amendment this way. The key problem with the second amendment is that it is so poorly worded. One of the challenges facing the Supreme Court is determining what exactly those words mean before they can even begin addressing whether the DC law is unconstitutional.

 

Compare the second amendment with the first. That amendment uses issues very specific and very clear restrictions on governmental behavior. As a result, the Supreme Court does not have to determine what the authors of the first amendment meant; the meaning is clear. The Supreme Court instead merely has to determine whether some particular speech or practice falls under first amendment protection. If I were of a conspiracy theory bent, I would posit that the authors of the second amendment intentionally wrote the amendment in a convoluted and unclear manner so as to preclude challenges.

[Pangloss]

Isn't it interesting, by the way, that they included the phrase "well-regulated" with regard to the first clause? It seems to support the notion of regulation and licensing, if obliquely.

[Mr Skeptic]

Didn't "well-regulated" mean "having proper weapons and training"?

[bascule]

That interpretation certainly differs from mine, and I can certainly see how you could interpret the amendment this way. The key problem with the second amendment is that it is so poorly worded.

 

I think the Second Amendment suffers from design-by-committee, but then again, so does the totality of American law

[Pangloss]

I think the Second Amendment suffers from design-by-committee, but then again, so does the totality of American law

 

Heh, that's an interesting (and amusing) point.