Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
After several conferences to discuss the case and no decision made, the Supreme Court has finally decided to grant cert in a case involving the 2nd amendment.
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.
Throughout American history, the Court has issued very few rulings on the 2nd amendment, which is astonishing given how controversial that issue has been for a long time. This case is aimed directly at the heart of the amendment and what it means, so it will be difficult for the Court not to rule on that very central question. This will be very interesting to watch. Oral argument will likely be scheduled for sometime in February, then a decision at the end of the term.
Comments
Given that the amendment specifically mentions "militias" and "security of a free state," I have to go with the interpretation that it isn't talking about individual ownership of guns.
Now one could argue that the 9th amendment covers gun ownership rather than the 2nd, unless you were to argue that the 2nd limits it to militias and therefore "specifically enumerates" gun ownership rights.
Posted by: dogmeatib | November 23, 2007 9:29 AM
"Given that the amendment specifically mentions "militias" and "security of a free state," I have to go with the interpretation that it isn't talking about individual ownership of guns."
I'm not a Constitutional scholar by any means, but I don't know if I'd agree with the idea that it "isn't talking about individual ownership of guns". In every other context during the time period that I'm aware of, "the right of the people" meant a right accorded to individuals. Rather, the mention of the militia was a justification for that individual right. One could argue from there, however, that the justification is no longer valid and thus the respective individual right is null and void.
Posted by: Tyler DiPietro | November 23, 2007 9:42 AM
Hmmm. The problem with the argument that the 2nd is explicitly a state right is that all of the bill of rights were so, as originally composed. States could and did write laws banning kinds of speech, establishing religion, and seizing property without recompense. The bill of rights was seen as limiting only the federal government. See Barron v. Baltimore.
I'm not sure how the "state right" vs. "individual right" question can be answered without reference to 14th amendment incorporation. Didn't Bingham specifically refer to the first eight amendments whose rights should be incorporated into the 14th? Of course, that's not a definitive argument. And a Congressman would never use rhetoric like "first and third through eighth."
Posted by: Russell | November 23, 2007 9:48 AM
Tyler,
The problem is that interpretation of the Constitution often breaks down to semantics and "what they said" versus "what they meant." That can be a good or a bad thing dependent upon the individual decision I suppose.
A somewhat parallel example can be seen in the 14th amendment and its interpretation regarding public services. A big area of contention is provision of public education for non-citizen resident children. The SC ruled that the 14th says "people" not citizens therefore it is referring to people, not just citizens.
In this case it 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.
As Russell points out, the BoR places limitations on what the Federal government can do to the states, prior to the 14th it didn't cover individual people. After the 14th it can be argued that a prerequisite of "militia membership" ie national guard is established.
It is also somewhat telling that the NRA and other pro-gun lobbies snip off the amendment prior to the coma and only go with "the right of the people..."
Posted by: dogmeatib | November 23, 2007 10:03 AM
This really should be interesting. On one side are are the NRA-style gun lobbyists saying "RIVERS OF BLOOD WITHOUT SELF-DEFENSE!!!!!!" and on the other side are the Brady Campaign people saying the exact same thing, just cropping the -out.
Posted by: Monty | November 23, 2007 10:28 AM
Just out of curiousity, and despite what you personally think is the correct decision, how do you think the court will rule on this one? My own instinct is to say, given this court and the current zeitgeist that they'll probably strike down the ban as unconstitutional.
Posted by: Nick | November 23, 2007 10:54 AM
The most interesting question for me is not whether the Court will hold that DC's outright ban is unconstitutional (I think they will), but how far the Court is going to let states and localities go to regulate ownership. My sense is that they'll let most regulations stand so long as they don't constitute a de facto ban. However, I know very little about the 2nd Amendment. Except that at common law (and by statutory law in some states) the "militia" included all able bodied males of a certain age, which probably cuts in favor of an individual right.
Posted by: AnneS | November 23, 2007 11:20 AM
Here's the DC Circuit decision that the Supremes will be reviewing: http://www.gurapossessky.com/news/parker/documents/parkerdc030907.pdf
Posted by: Jeff Chamberlain | November 23, 2007 11:22 AM
Nick,
I think you're right, but I could imagine that the decision wouldn't be as sweeping as it could. Since the city in question is Washington D.C., the court could rule against the law as a federal issue without answering whether the same result would be reached in the States.
Posted by: MDL | November 23, 2007 11:31 AM
I'm no scholar either, but I think it's also worth remembering another key term in the first half of the amendment, which certainly must in some way qualify the second half: "A WELL-REGULATED militia, being necessary to the security of a free State...." Last time I checked, "regulated" pretty much meant "controlled." I can think of several ways in which a state might reasonably want to regulate its militia, none of them particularly favorable to the NRA. Whatever the founders might have meant by a "militia," they seem to have meant at least that it would be under the control of the state. Seems to me a truly conservative justice would add up 1.) the implied idea of states' rights, plus 2.) the idea of broad government authority in handling matters of security so severe as to necessitate the use of a militia--and the sum would be that it's up to the states to regulate gun ownership as they see fit. Either the type of gun ownership in question has NO relationship to the state militia, in which case the Second Amendment is not implicated at all and the state may regulate as it pleases, or the gun ownership IS related to the militia, in which case the state can regulate it because it can regulate the militia itself. At least some states would favor gun control by reasoning that its security is best served by a citizen militia when those the militia might have to engage are not armed to the teeth.
Posted by: Eveningsun | November 23, 2007 11:34 AM
ISTM that the language of the twoth amemdment mentions the *state* militia as a justification for *individual* rights to bare arms.
Posted by: Ferrous Patella | November 23, 2007 11:55 AM
Just to stir the pot a little, In most militias of the day, you brought your own gun, etc. At the time, it was essential for there to be gun ownership. Taking a gun away from the individual was the same as stripping the militia of its weapons.
IMHO, we don't have that necessity any more. We call people who run around with guns vigilantes and worse.
Posted by: jufulu, FCD | November 23, 2007 12:10 PM
I'll go on record as saying that I think the Supreme Court will affirm the DC Court Appeals opinion finding the DC ordinance unconstitutional. In fact, I think it will be at least a 7-2 decision, and even has a reasonable chance (>25%) of being a 9-0 decision. If the members of the court delve into the historical record at all (and you can be sure they will be assisted with various amici curiae briefs) and have any sort of integrity, that's really the only way they can rule.
If not 9-0 but only 8-1, I think Stevens will be the dissenter (Chicago roots coming to the fore). If 7-2, add Breyer (not Ginsburg). Breyer has a tendency to let policy decisions affect his jurisprudence. And I generally think Ginsburg has the integrity to take this where it leads. If 6-3, add Ginsburg. 5-4, add Souter (but I really don't think this will happen--Live Free or Die!). No way will the ordinance be upheld.
I put this here now so that, after the ruling, if I am correct, people can recognize my genius. :-). And if wrong, my hope is that people will forget I said it. :-).
Posted by: Ahcuah | November 23, 2007 12:18 PM
Eveningson/dogmeatib -
AnneS pretty much nails it down. A militia was defined as every able bodied male, within a certain age range. It was also assumed that said individuals would possess and maintain their own weapons.
Posted by: DuWayne | November 23, 2007 12:44 PM
What Ahcuah said, with the reminder to him that The Tubes never forgets. I expect a middle position, finding an individual right, but one subject to reasonable regulation. In other words, not terribly from First Amendment jurisprudence.
By the way, those claiming the Amendment is no longer viable because of changed circumstances, the correct solution to that problem is spelled out in the Constitution, and it doesn't involve a Court saying, "Well, never mind." If your position is so strong, go ahead and amend the document.
Posted by: kehrsam | November 23, 2007 12:47 PM
kehrsam says:
I'm not sure they'll even go that far. Much of the court will want to decide only what is necessary to the case, that is, the individual right part. But I'm not convinced they have to say anything about "reasonable regulation" in order to toss the ordinance (except to say that a total ban is not a reasonable regulation), so, if the opinion is written by any of the hard-right four, I don't think they will say more. If Kennedy writes the opinion, though, all bets are off (noting Kennedy's predilection to say much more than he really needs to).
Or, it could be that the opinion is handed by Roberts to Ginsburg or Souter (or even Stevens) in order to keep them in the fold (after all, Roberts claims he likes to try for unanimity). An opinion by one of them might also be a it broader than necessary.
One final note: the scheduling suggests the opinion would come out in June, in the middle of election season. It has been suggested that upholding the DC Court of Appeals decision could then become a strong hammer against the Democrats. I suspect a 9-0 or 8-1 USSC decision would mute that considerably, or at least convince the Democratic candidate to shut up about it.
Posted by: Ahcuah | November 23, 2007 1:01 PM
I agree with Ahcuah, I think the ruling will be to overturn the DC law. I'm curious to see what they say in terms of what kinds of limits they're willing to allow on gun ownership, however. I'm also curious to see if there is a plurality opinion with a divide between Scalia and Thomas on one side and Alito and Roberts on the other, both in the majority but with a much narrower decision by the two younger justices. I think that's a real possibility.
Posted by: Ed Brayton | November 23, 2007 1:04 PM
While I agree that the DC law violates the constitution, it would be interesting to see what the court would do with a similar state law. The Second Amendment has never been incorporated into the Fourteenth and therefore does not currently apply to the individual states.
It is relatively clear that the right protected, from the federal government, was an individual right to own the type of firearms a solder would carry onto the field of battle. At the time of the drafting of the Second Amendment the founders were extremely suspicious of standing armies and believed in the ideal of the citizen militia.
However, one of the other fears of the founders was of a strong central government interfering in the internal affairs of the states. Therefore I think an argument could be made that the phrase well-regulated indicates that the Second Amendment does not prevent individual states from regulating firearm ownership as they see fit. The Second Amendment prevents the federal government from disarming states by barring their militia from owning guns.
Posted by: ratel | November 23, 2007 1:19 PM
The Second Amendment states that the right to keep and bear arms is "the right of the people." It doesn't say it's a right of the states.
When the Bill of Rights means the states, it says "the States." When it means people, it says "the people." (The Tenth Amendment, for example, says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." See also the 1st, 4th, and 9th Amendments.)
If "right of the people" could validly be interpreted to mean "right of the states," then the First Amendment's protection of the right to peaceably assemble and petition the government for a redress of grievances could be satisfied by a state that bans all anti-war protests and instead holds a yearly "town hall" type meeting where only preapproved grievances may be petitioned for redress.
The "well regulated militia" part indicates the purpose of the right. At most, it might mean that an individual who wants to get a gun must sign up for a militia and attend training exercises. But the right itself is still conferred on "the people" -- i.e., individuals -- and not on "the States."
Posted by: corafan | November 23, 2007 1:24 PM
My understanding is that many courts have already ruled on the 2nd amendment, and none of them have asserted the constitutional right of an individual to own a gun.
If the Supremes find otherwise, that would be BIG deal, and will be, perhaps, the definition of an "activist" court.
BTW, the term "well-regulated" had a different inflection two and a half centuries ago. I think it meant more along the lines of "well-provisioned" or "adequately manned". A militia back then was a community reservoir of the local men, ready to fight with firearms against tyranny or occupation.
Personal rant:
I remain amazed to this day that the Democratic Party is against an individual's right to own a firearm. Being liberal, I believe, means optimizing individual liberties, among other things. That means sometimes distasteful liberties, like freedom of speech, as well as, perhaps, gun ownership need to be protected.
IMHO, It also is an incredibly self-destructive and virtually meaningless political platform position ( there are something like half a billion guns in law-abiding citizens homes)for Democrats to avow. There are SO many issues of far greater importance that can not be remedied if elections are lost over gun ownership.
Posted by: Gingerbaker | November 23, 2007 2:20 PM
DuWayne, even if the court agrees (as do I, BTW) with AnneS that "the 'militia' included all able bodied males of a certain age," it might still rule in a way that allows gun control. It could rule that while everyone has a right to "keep and bear arms," that right is qualified to the extent that a state has an interest in regulating its militia. I doubt that even the founding fathers thought every able-bodied male had an untrammeled right to possess every kind of weapon then extant. They probably would have agreed that individuals could and should keep small arms with them at home, but that the state government should control the cannonry. If such a distinction were valid then, the court might find similar distinctions (such as that between sidearms and so-called "assault weapons") valid now.
I'm not saying how the court SHOULD rule, merely suggesting there are lots of ways it might wind up disappointing the NRA. I think this one is unpredictable. The wording of the Second Amendment, with its references to both the people and the state, simply permits too many readings.
Posted by: Eveningsun | November 23, 2007 2:22 PM
Eveningsun wrote:
Unfortunately for that notion, in the XVIIIth Century, "well-regulated" meant "well trained." That is to say, a well-regulated militia was one which was trained in the tactics of combat.
Other posters have already pointed out that the milita was every able-bodied male between 16 and 60, and members were required to provide their own firearms. What is not commonly known, is that the milita were all able-bodied men between 16 and 60, who were not already members of another military unit.
Those other military units were the Royal (or Continental) units, equivalent to the modern Regular Army, the locality (or state) units, equivalent to the modern Army Reserves, and Independent units, equivalent to the modern National Guard. The milita would most emphatically not be equivalent to the Guard.
Just FYI, this was the case for all European nations, not just England. La milice and la Marine held off Wolfe's regulars for almost an hour, after the death of Montcalm and the route of the Troupes de Terre at the Plains of Abraham.
fusilier,
James 2:24
Posted by: fusilier | November 23, 2007 2:30 PM
The NRA (a boogeyman of the left, in much the same way ACLU is a boogeyman of the right) keeps coming up in these comments. It is my understanding that the NRA had nothing to do with this case.
Obviously, they are now watching it closely. But the case was started by individuals, funded by them, and carried out without a bit of direct assistance from NRA. If I remember correctly, the individuals who brought the suit didn't want the NRA to be a party to it.
The truth of the matter is that the NRA is not operated by absolutists. They favor several forms of gun control, and are currently working on behalf of a Schumer/McCarthy gun control bill. And given the long odds this case faced at the outset, the conservative (in demeanor), deal-cutting NRA would probably have passed on the project.
That said, now that this case is showing real promise, I wouldn't be surprised to learn that they filed an amicus curiae brief.
Posted by: Jim Babka | November 23, 2007 2:58 PM
Fusilier, if "well regulated" means "well trained," how does that mitigate against state control? Couldn't the court use the idea of such training to qualify any personal right to "keep and bear arms"? Who would decide the content of such training if not the state? Last time I checked, the members of any well trained military unit are trained to obey the orders of their superiors, which orders can legitimately include which kinds of weapons to carry, when and where to lock them up when not in use, etc. And the fact that some states were able to require all able-bodied males to acquire their own firearms strikes me as a comment on state authority rather than individual right.
Posted by: Eveningsun | November 23, 2007 3:00 PM
"I remain amazed to this day that the Democratic Party is against an individual's right to own a firearm."
This is nothing but a bullshit right-wing talking point. The "Democratic Party" is definitively not "against an individual's right to own a firearm". There do exist members of the Democratic Party who think it is a good idea to regulate the exercise of that right.
Right-wingers repeat this crap all the time to scare voters: "Democrats want to take away our guns!! OH NOES!!!" It's a total crock of shit.
Posted by: PhysioProf | November 23, 2007 3:48 PM
I've always thought that due to the phrasing the 2nd amendment it should allow private citizens to own large caches of tactical nuclear weapons. We expand the first amendment to mean not only speech and press but also dancing, email, IM, anything you can do to communicate. But the 2nd should still refer to muskets, because that's what they had?
It clearly seems to suggest the the right of the people to bear arms shall not be infringed.
I believe the amendment should properly be interpreted as absolutist... it also needs to be repealed. A lot of people are left in a position of passing what seem to be unconstitutional laws to hamstring the rights of the citizenry because that amendment applied to a situation far different than our own. I think that all gun control is currently unconstitutional from handguns to background checks to not being allowed to own fighter-jets or ICBMs. I think we need to legalize gun control and that takes repealing the 2nd.
Posted by: Tatarize | November 23, 2007 3:50 PM
i'm amazed they granted cert. i had been convinced they would deny it and let the circuit court's overturning decision stand, thus minimizing political risk all around.
now that they have granted cert, i'm hoping much the same as ahcuah and kehrsam up above. i think we could live with a second amendment regulated in the same manner, more or less, as the first amendment is. trying to effectively nullify the second by upholding the D.C. ban would be a political nuclear bomb; i think even i would buy a rifle if that were to happen.
i don't know what the founders meant by the phrasing of the amendment, and i don't much care; we don't live in their world, and we have to make the constitution work for us in our society. an outright gun ban is as politically useless as a totally unregulated free-for-all would be, we need to find something more flexible.
Posted by: Nomen Nescio | November 23, 2007 6:22 PM
I'm just finding it kind of humorous that over the course of this year the various branches of the federal government will have affirmed the rights of the residents of Washington D.C. to own guns, while declining them the right to vote.
Posted by: Coin | November 23, 2007 7:02 PM
well hell, the next time Washingtonians decide to ask for the right to vote, maybe they'll be able to march down the Mall with guns in hand --- perhaps that will get Congress' behind out of the sling! ;-)
Posted by: Nomen Nescio | November 23, 2007 9:03 PM
This is flat out wrong, and my generous interpretation is that the author has not had his coffee yet. Read the 5th Amendment, for example: Nobody was worried about the federal government putting the states on trial. Or the 4th Amendment: They weren't worried about the federal government doing an improper search and seizure on a state.
The most thoughtful comment so far is the poster who pointed out that D.C. is federal territory, so the SC could (should) rule on the 2nd Amendment's affect on the federal government, and pay no attention to whether it affects the states.
However, regarding the state issue: Nobody here has pointed out that the SC has steadily incorporated the Bill of Rights through the 14th Amdt. to apply to the states. Most, but not all, has been incorporated. Notably the 2nd and 3rd amendments have not. I would guess that if a quartering case came up, the SC might incorporate it as well. While several posters here want to treat the 2nd amdmt. as different because of the 'well regulated" language, it's hard to get around the fact that it is as much a part of the Bill of Rights as free speech, free exercise, and right to trial by jury.
That is, an extraordinary justification is necessary to treat it differently than the others, and I haven't heard anything but ordinary justifications so far.
Posted by: James Hanley | November 24, 2007 10:09 AM
A couple of points.
Regarding incorporation, it is pretty clear from the discussion regarding the 14th amendment, one of it major purposes was to apply the Bill of Rights to the States. However, that got hijacked by the Slaughterhouse Cases and Justices who were more interested in keeping things the way they were in the South.
As others have pointed out, even if the 2nd amendment was more focused on the militia when first written, by the time of the 14th amendment, that right was clearly thought of as an individual right. For instance, whenever the 2nd is discussed, it is never discusses as "the right to keep a militia" but always as "the right to keep and bear arms" Think about it--if the right was always about the right of States to keep a militia, or a collectivist interpretation, wouldn't they have called it something else? So, going with some sort of original meaning intent, the original meaning intent of the 14th brought in an individual right (even if you assume it was not there from the beginning).
Posted by: Ahcuah | November 24, 2007 10:27 AM
Nuclear weapons are a red herring thrown out gun control acitivists whenever a discussion about the 2nd amendment comes up. the 2nd Amendment obly applies to arms. At the time the bill of rights was mentioned, arms referred to weapons that could be carried by an infantryman and ordinance applied to canons, mortars and weapons that could not be carried. No reasonable person could claim that arms refers to nuclear weapons, tanks or fighter jets.
Posted by: Mike | November 24, 2007 10:33 AM
the problem with the "individual infantryman's weaponry" interpretation is that it'd have to allow a number of arms we don't want to set free --- fully automatics, RPGs, hand grenades...
the political fallout of overturning the 1934 National Firearm Act would be as bad as the one from overturning the 2nd amendment. we need more regulation than that, and looking at original intent likely can't give us that.
Posted by: Nomen Nescio | November 24, 2007 10:40 AM
Further regarding incorporation, it is true that the Slaughterhouse Cases siderailed incorporation via the privileges and immunities clause of the 14th amendment. But incorporation was successfully acomplished, at least in part, via the due process clause. That allowed the Court to incorporate without overturning the Slaughterhouse cases
Incorporation becomes a little more complicated with the 2d amendment. Recall the introductory clause to the 2d amendment "A well regulated militia being necessary to the security of a free State..." (from memory). The Constitution authorizes states to have militias, but, given federalism, it cannot require them to. That was one of the points of an 1880s 2d amendment case out of Illinois (don't recall the caption, but it is easily found over the Internet). If there is an "individual right" to keep and bear arms irrespective of whether the state has a state militia, then that would essentially be reading the introductory clause of the 2d amendment out of the Constitution.
Posted by: raj | November 24, 2007 10:44 AM
One more point. The 2d amendment says nothing about owning or using a firearm. It is ownly addressed to keeping and bearing. A subtle, but very important point. Presumably, the owner of the gun can control how it is used. So if a state wishes to have a militia, and purchases the arms for its members, it can control how those arms are used.
Posted by: raj | November 24, 2007 10:47 AM
PhysioProf:
"Right-wingers repeat this crap all the time to scare voters: "Democrats want to take away our guns!!"
They keep repeating it because it works. And it works because to no small intent it is true!
There are plenty of Democrats who would love to ban handguns, even hunting. Many would love to ban all guns, period. Don't deny it.
Democrats were responsible for banning certain assault rifles.
Can you show me a national Democratic Party plank in the past fifty to one hundred years that espouses that the 2nd amendment should be interpreted as an "individual" right?
A few Democrats are finally now starting to stress their hunting backgrounds and to specifically and forcefully state their support for gun ownership and hunting. But these are anomalies in the party.
It is the perception of the voting public that Republicans, not Democrats, care about their gun ownership rights. And, as far as I can see, the Democratic Party is doing precious little to change that perception.
And what a shame that is. They are squandering a huge opportunity at this moment in time! Hunters and gun owners are rather upset with this administration over loss of game habitat and illegal spying on Americans.
If the Democrats would actually come out with party planks espousing the individual right to own a gun, preservation and maximization of individual liberties, AND an expanded program to preserve hunting lands they could own the gun-owning voting block forever.
But they won't. Because unfortunately, the Party really doesn't believe in it. Pity.
Posted by: Gingerbaker | November 24, 2007 11:29 AM
James Hanley:
You're misreading. Of course the 5th amendment, as originally framed, limited the federal government with regard to trials of individuals, seizing their property, etc. What it did not do was impose those same limitations on states. Prior to the 14th amendment, states could and did censor speech, establish religion, and seize property without recompense. It wasn't that the states were seen as violating the 1st and 5th amendments in doing so. It's that the bill of rights were seen as restricting the federal government, not the state governments. This was quite clearly expressed by the Supreme Court in the 1835 decision Barron v. Baltimore. There, an individual had lost use of his dock, due to action by the city of Baltimore, and was demanding compensation, on 5th amendment basis. The Supreme Court ruled that the 5th amendment didn't apply to state and local governments. It is a short ruling, and I encourage everyone to read it. Here is a key excerpt:
So, I've had my coffee. Have you read up on how the bill of rights was viewed ante bellum? As far as I can tell, this was not a controversial ruling. States rights were quite the thing at the time. Some southern states banned abolitionist literature. That wasn't a 1st amendment violation, because the 1st amendment didn't restrict the states.
Posted by: Russell | November 24, 2007 11:42 AM
"There are plenty of Democrats who would love to ban handguns, even hunting. Many would love to ban all guns, period. Don't deny it."
Why shouldn't I deny it when it is a pernicious lie? You got evidence for your claims, let's see it. The readers here are too smart to fall for your inept concern trolling.
Posted by: PhysioProf | November 24, 2007 11:59 AM
As a resident of the District, it is interesting to me that all the commenters here seem to regard this as nothing more than a Constitutional issue, versus a public safety issue, which is more to the point. The reason a ban like DC's does not work is because of the nearly complete lack of regulation of gun sales in other areas particularly VA, which floods DC with guns every year (IIRC, more than half of the guns used in crime on the East Coast originate in VA sales). I completely understand the libertarian issues here, but the fact is more guns=more crime=more murders. Every comparison of the industrialized nations shows this.
That being said, I am also against total bans because they do infringe on law-abiding citizens. I am personally against any gun ownership, because I believe the inherent danger of having a gun is far greater than the meager assistance a gun might provide during a crime. I would prefer other ways to limit the danger of guns - holding original owners criminally liable for the use of their guns in crimes for instance (right now, a gun owner who has undergone background checks, etc., can simply hand over their guns to anyone else, either for purchase or just because they want to, with no liability whatsoever), or having extremely high prices on bullets (perhaps with an exception for those sold and used at firing ranges).
On the Constitutional side, though, is the interesting feature of this amendment that links "arms" ownership (not guns specifically mind you) with the militia. It seems to me that this opens the door for regulation of the types of arms individuals can own (so the assault weapons bans, I believe, have been found Constitutional), and/or limiting the ownership of weaponary more stringently for those not part of the military and/or National Guard.
Posted by: CPT_Doom | November 24, 2007 12:25 PM
CPT_Doom, as a meager way of partially answering PhysioProf's challenge... which of the two major parties would you say more closely represents your views on gun banning (or control, whichever word you'd prefer to use for your political platform, which i perceive as outright gun-grabbing)?
Posted by: Nomen Nescio | November 24, 2007 12:41 PM
CPT Doom: Assault weapons have not been banned. The commercial sale of such weapons has been banned. I know plenty of people who still own them.
The reason assault weapons have not been made illegal is that they are functionally identical to the semiautomatic rifles used for hunting and other perfectly legitimate purposes. The only differences are purely cosmetic, such as shorter barrels, collapsible stocks, and the like.
I lived in DC during the murder explosion of the late 1980s. It was pretty frightening, although not if you could afford to live in the better parts of town. I was in Capitol Heights, and there was a lot of gunfire at night. Virginia could really stand to tighten up their gun policies.
Posted by: kehrsam | November 24, 2007 12:44 PM
FYI, the "assault weapons" ban of 1994 expired in 2004. streets did not run red with blood.
kehrsam: if crime rates in D.C. are in part due to lax gun control in Virginia, what do crime rates in Virginia look like? i hear similar arguments out of New Jersey, in regards to gun control laws in Pennsylvania, yet PA's crime rates do not seem any worse than NJ's... why is that?
Posted by: Nomen Nescio | November 24, 2007 12:49 PM
Right.
It must have been Republicans who were working on gun bans, assault rifle bans, magazine round caps, gun registration, waiting periods, denying carry permits etc!
And you are pretty "fast on the draw" to accuse me of being a concern troll.
What, exactly, is wrong with my idea that Democrats could win more elections if they espoused their support of the 2nd amendment more dramatically? There are a lot in the Democratic community who are finally coming around on that.
But, there quite a few who aint:
How Dem Candidates Should Support Gun Control
DLC President Bruce Reed takes on the conventional wisdom that gun control is a 'third rail' for Democrats in his Slate article "It Takes a Bubba: Tougher gun laws are better politics than you think. (http://www.thedemocraticstrategist.org/strategist/2007/04/how_dem_candidates_should_supp.php)
Strengthen gun control to reduce violence
Democrats passed the Brady Law and the Assault Weapons Ban. We increased federal, state, and local gun crime prosecution by 22 percent since 1992. Now gun crime is down by 35 percent. Now we must do even more. We need mandatory child safety locks. We should require a photo license I.D., a background check, and a gun safety test to buy a new handgun. We support more federal gun prosecutors and giving states and communities another 10,000 prosecutors to fight gun crime.
Source: Democratic National Platform Aug 15, 2000
Here is a list of some Senate Democrats and their votes on Gun Control issues from a group that calls themselves "Second Amendment Democrats" ( they must be concern trolls, too, right?)
http://www.a2dems.net/campaign2006/senatevote109.htm
Did not Senator Feinstein say in 1993: "Banning guns addresses a fundamental right of all Americans to feel safe."
Did not Chuck Schumer brag in 1993, "We're going to hammer guns on the anvil of relentless legislative strategy! We're going to beat guns into submission!"
Thanks a lot, BTW, for forcing me to visit some disgusting right-wing sites to dig these up. :(
I am a far left wing progressive. I am just sick of going to parties and hearing people I usually agree with and actually like, talking about banning guns. So, please, can it with your "concern troll" allegations.
I don't know who is acting more like the NRA in this discussion - you or me! ;(
Posted by: Gingerbaker | November 24, 2007 1:29 PM
Nomen Nescio: Had I claimed any correlation between gun laws and local crime you might have a point. However, I did not. I merely confirmed that many of the guns used in DC crime during the late 1980s were legally purchased in Virginia (many others were also illegally imported from Jamaica and the Bahamas).
Guns did not fuel the violence of that period; that was the result of drug laws and economics, plus the arrival of some very aggressive criminal organizations. Guns did make the ensuing battles much more deadly, both for the gangs and innocent bystanders.
For the record, in my political career I never had any trouble finding pro-gun Democrats to work for.
Posted by: kehrsam | November 24, 2007 2:33 PM
So the most recent reference by any Democrat to "banning" guns you could find is almost 15 years old?
What about your original claim? "There are plenty of Democrats who would love to ban handguns, even hunting. Many would love to ban all guns, period." Where are the "plenty" and "many" who "would love to ban handguns...hunting...[and] all guns"?
And yes, I know, you want to conflate "banning" with "regulating". Why would any self-professed "far left wing progressive" carry water for the right-wing in this foolish manner? If you aren't concern trolling, then, at a minimum, you are behaving very naively.
Posted by: PhysioProf | November 24, 2007 3:16 PM
And just be clear, it's not that I think Democrats should somehow fear addressing 2nd Amendment issues in general. The point is that in politics it matters how you couch things.
Saying "Democrats who support the right to own guns should take a firm public stand on this issue" is *very* different from saying "There are plenty of Democrats who would love to ban handguns, even hunting. Many would love to ban all guns, period." The former could constitute a helpful way to pursue your interest in this issue; the latter just repeats and reinforces a right-wing fear-mongering narrative.
Progressives should not ever embrace right-wing narratives (never!), even if they appear helpful in the short term at characterizing a particular issue! If you are a progressive, you are sacrificing long-term benefit for apparent, but illusory, short-term advantage. This is pretty basic stuff, and I am surprised it needs to be said. (Actually, I shouldn't be surprised; even many Congressional Democrats seemingly fail to appreciate this fundamental principle.)
Posted by: PhysioProf | November 24, 2007 3:49 PM
"Progressives should not ever embrace right-wing narratives (never!)..."
There's your problem right there. The gun argument is only that because of politics. The Right to Arms itself is apolitical, in that it applies to everyone regardless of political affiliation.
The continued calls for gun control have, pretty much throughout my lifetime, come from Democrats. Not once has a Democrat voluntarily called to repeal a gun control law or regulation. Not once have I heard any of them say 'this is enough'. I keep reading nonsense about 'loopholes' where none exist from the Left. I hear about things called 'assault weapons' from that sector, even though there's no such thing.
Here's a different thought for you, Mister Progressive: the history of gun control in this country is one of keeping guns out of the hands of minorities, starting against blacks in the colonies up to my direct ancestors (Italians) in NYC, by way of the Sullivan Law (1912).
As of today, large cities run by well-armed white elites use police who don't live in the neighborhoods they work in to control the black and brown underclasses.
Face it, an armed black man is an Equal. And you're terrified at the prospect of having to share your privilege. It wouldn't me much of a privilege if everybody had access, you know?
Posted by: Peter | November 24, 2007 7:03 PM
whether or not (some, many, most, all) Democratic politicians really do want to ban gun ownership or really are pro-gun ownership doesn't much matter. the Democratic party is widely perceived as being the gun-banner party; this perception is quite real, is widely accepted as true, and really influences voting decisions in flyover country.
such a perception cannot be dispelled by merely stating it is false. if Democrats want to dispel it, they'll have to work long and hard at showing it is false. unfortunately, i don't see very much of such work being done.
Bill Richardson has earned himself a fairly good name, but it's patently obvious he's not an agenda-setter in the party at large. the people who do seem to be such also seem to be at best uninterested in the 2nd amendment, and a few of them are actively hostile to gun ownership. dispelling that perception will take long, hard work.
Posted by: Nomen Nescio | November 24, 2007 8:28 PM
Peter wrote: The Right to Arms itself is apolitical, in that it applies to everyone regardless of political affiliation.
As opposed to what? What issue is there that doesn't apply to everyone regardless of political affiliation?
Posted by: tomh | November 24, 2007 8:42 PM
For one, tomh, there's abortion. Being male and all, it's not really an issue for me.
That took all of a second to think up. Try harder.
Posted by: Peter | November 24, 2007 8:54 PM
Peter wrote: ... there's abortion. Being male and all, it's not really an issue for me.
Your gender is your political affiliation? Abortion applies to all females regardless of political affiliation.
Posted by: tomh | November 24, 2007 9:08 PM
Try to stick to the discussion: you asked what issue didn't apply to everyone, and I supplied one.
Even better, how about you address the rest of that post?
Posted by: Peter | November 24, 2007 9:28 PM
Petr wrote:
James Brady, as we are aware, is a Democrat. Tom Foley is a Republican. Black's white today. And most guys today that women prize today are just silly gigolos.
Peter is out of touch.
Posted by: kehrsam | November 24, 2007 9:57 PM
Oh please, you said, "it applies to everyone regardless of political affiliation." Big deal, so does everything else.
The rest of your post? You mean things like, " large cities run by well-armed white elites" or "an armed black man is an Equal. And you're terrified at the prospect of having to share your privilege," things like that?
Typical conspiracy ravings, hardly worthy of response.
Posted by: tomh | November 24, 2007 9:57 PM
The Supreme's confimation of the overturning of the DC gun ban, followed by similar litigation in Chicago, California, Maryland and NYC is going to force a basic realignment in how life in those areas is conducted. No-knock service of warrants, and other aspects of the so-called war on drugs are going to be challenged, sometimes at gunpoint. A lot of people decry the Patriot Act, but the erosion of our Rights started with the war on drugs, and getting anti-gun legislation out of the way will allow the people most affected to take, perhaps for the first time, control over their neighborhood.
The Civil War was 150 years ago. The Civil Rights Act was 43 years ago. When are we going to live up to our fine words and sentiments?
And all you can say is 'conspiracy ravings' Pitiful.
Posted by: Peter | November 24, 2007 11:31 PM
Peter wrote:
No, he didn't ask you that. He asked you:
You clearly tried to change the subject. And you still haven't bothered to answer his question.
Posted by: Ed Brayton | November 24, 2007 11:42 PM
"Outright gun grabbing" - interesting, since I was pretty specific that I don't have an issue with law-abiding citizens owning weapons. I do see the issue of eliminating gun violence in this country as paramount to our survival, and I don't see any gun crime solutions from the NRA side of the equation. We currently incarcerate a far higher percentage of our population than any other country, yet we still are the most violent and murderous industrialized nation on the planet, so merely locking up "criminals" is not the answer.
Now, I personally do not believe in gun ownership, in that I believe they are useless in defending oneself, and pose such a great danger to the health and safety of other law-abiding citizens that I would never allow one in my home, and if I had children, I would follow my own parents' example and would never let my children play at a home where guns were kept, no matter how "safe" the owners kept them; I simply do not believe there is any "safe" gun ownership (with the possible exception of historical artifacts).
Having been the victim of violent crime three times in my life, I know that even if I were "packing" (aside, how Freudian is THAT language?) heat, it would have been useless. In fact, when I was gay bashed three years ago (as of last Saturday), I was far more effective in defending myself simply with rage, yelling, and a well placed fist than any gun would have been (and when one has been temporarily blinded in one eye by a brick to the face, firing a gun really would not have been possible).
So far more than any Constitutional question, I am more concerned, as I stated previously, about the public safety issue, but the discussion here has been either philosophical or political in nature. In terms of improving public safety, I would prefer a cigarette-type approach; that is, make gun ownership socially unacceptable and increase the cost of weapons ownership to reflect the actual cost of guns to our society. So, lets guns be free, but tax bullets to the point they are extremely expensive - maybe costing $50 or $100 a piece. For someone merely "defending" themselves, the number of bullets necessary would be very small. As I stated above, I would have no problem, in this example, of allowing cheap bullets in relatively safe locations, like firing ranges, as long as they were only used in that facility.
For the record, I live in an "up-and-coming" neighborhood in DC, and keep a box cutter by my bed in case of any intruders in the night.
Posted by: CPT_Doom | November 25, 2007 12:13 AM
These theoretical arguments are useless. The Second Amendment was written by Madison who stated on several occations that this was intended to be an individual right of the people. Nowhere in our constitution is a Government body given a "right", only Powers and Duties. Because the State or Federal governments afford no personal protection to any one citizen by law, it stands to reason that gun ownership needs to be an individual right to allow for personal protection. The preamble of the 2nd in no way limits the second. The portion regarding a well regulated militia being necessary to the security of a free state is simply a statement of fact. A militia at the time was necessary to the security of a free state, but it in no way invalidates the clear prohibitory language of the second half of the sentence which states, "the right of the people to keep and bear arms "shall not" be infringed". The latter is a much more powerful statement with no vague terms to misinterpret. So called scholars can anylize this all they want, but the clear evidence supports individual rights as all the original amendments dealt with personal freedoms of the individual. Our country was found on the principals of individual liberties. What makes anyone think the 2nd is the only amendment that was meant to be a collective privelege. This is clearly an individual right, and I pray that the SC finally puts this argument to rest for the sake and safety of the people and this country. Considering the fact that our States have failed to eliminate crime and in fact allow murderers, rapists, and violent felons out to roam free on our streets thanks to their ignorance and perversion of our judicial system, it stands to reason that law abiding folks need their guns more than ever, and in fact need to be able to carry openly as the 2nd states. No more of this permit crap to exercise a basic right.
Posted by: Brian | November 25, 2007 12:54 AM
Scanning over a bit of the comments, since this subject is always a passionate one, I still come down in favor of the individual having a right to be able to own/carry firearms. I do believe that the individual who claims this right should be subject to training/inspection. The problem always lies in how far this right should go? There are two parts to this, one is concealed carry and the other is "destructive weapons" as defined by current laws. Concealed carry issues revolve around "how well do you trust this individual to carry a deadly weapon when no one else will know?" Destructive weapons carries some of the same questions as the concealed carry issue, but now we are talking weapons that are above a .50 caliber. Keep in mind, that if you are a black powder shooter, this isn't supposed to apply. Destructive weapons start at anything that fires a round above what a Browning M-2 does.
So, the question is, where does this leave us? The individuals right to protect themselves is generally considered self evident. The problem seems to relate to how much we trust the method in which individuals protect themselves. In some states, you cannot safely shoot an intruder in your home unless you are in fear for your life. At 2am, being awoken from your sleep, how are you really supposed to know if the intruder has a knife or a gun? Of course, in TX, if you happen to own any land, as soon as someone steps across your property line, and you didn't invite them, they are fair game (think of a Barret .50 with a good scope).
So, what are we to do? Almost anyone would recognize the fact that someone trained appropriately with firearms is much better able to protect themselves. However, how do we screen out the crazies? We don't want people shooting each other willy nilly, but where is the line that we draw around gun ownership, and even stickier, what is their liability?
(Personal disclosure, I own lots of weapons. No machine guns, but have seven pistols ( 3 revolvers, the rest are semi auto), four rifles (2 bolt, 1 lever, 1 semi auto), and 1 shotgun (pistol grip pump). Also, I enjoy target practice, but don't like hunting. Weird, eh?
Posted by: BGT | November 25, 2007 1:02 AM
I normally find it uninteresting to discuss 2d amendment issues over the Internet. Eventually, the discussion devolves into "your party wants to take away all of our guns" vs."your party wants to allow people to own nuclear weapns (at a maximum) or depleted uranium ammunition."
Both are silly. but I'll merely copy a comment on the actual merits of this particular case that I posted over at Jack Balkin's web site a couple of days ago.
What is often overlooked is the fact that the issues that I described at the beginning are political (i.e., policy) issues, and have little to do with the constitutional issues. It is important to differentiate between the two.
Posted by: raj | November 25, 2007 1:35 AM
Minor technical issue here raj - the DC home rule law is pretty clear and basic. Congress has veto power over any law passed by the DC council, but the council clearly has the power to pass laws as it sees fit. Congress has the ability to also block any law at any time (which is why DC is considered the last plantation), so they could stop this if they wanted to. But that would be nearly impossible at the Senate.
Posted by: CPT_Doom | November 25, 2007 7:53 AM
CPT_Doom, in spite of the length of your latest posting (which, incidentally, did not dispel my own highly personal opinion of your policy position), it seems you didn't answer my actual question. you've outlined your opinion on gun control in some detail; which of the two major parties do you feel best represents it, and why?
i think you're a gun-grabber, but that's neither here nor there. i've been wrong before. knowing your policy and where you feel it aligns on the U.S. political spectrum might tell us something (if only very little) about that spectrum.
Posted by: Nomen Nescio | November 25, 2007 8:58 AM
BGT:
Nonsense. Killing someone merely because they are trespassing is murder here in Texas. Even if the land is posted.
CPT_doom:
I find this a curious view. It means, among other things, that you would never allow your children to visit other children whose parents work in law enforcement.
Posted by: Russell | November 25, 2007 11:11 AM
CPT_doom -
I too find this a curious view. My question would be; how do you know? All of my guns are currently residing in MI, with my folks. But given the opportunity, (mainly the ability to afford a good vault) I will bring them out here. If and when that happens, I will certainly not be advertising the fact. I mean the hunting aspect might make it rather obvious, but I occasionally hunt now, using the weapons of others. I know a lot of people who don't talk about having guns at home.
I also have to wonder what the point is. If your child's best buddy at school, has parents who own guns and keeps them in a vault, are you really going to tell him/her that playing with their best buds just not allowed? I mean there are definitely circumstances that would lend me to make such a decision about my own son and his friends, but it would have to be a pretty serious problem.b
Posted by: DuWayne | November 25, 2007 4:11 PM
Mike:
The power of weapons that can be carried by a single infantryman today has increased enormously, and will continue to do so. If the ability to be carried is the criterion, then such weapons include not only fully automatic machine guns, but also portable anti-tank and anti-aircraft systems, propelled grenades, and much more. These arguably make sense for a citizen militia. They certainly aren't part of sports shooting, home defense, or hunting. So if the 2nd amendment is indeed incorporated as an individual right, the kind of arms covered has to be hashed out. The "carry" criterion may eliminate nuclear weapons, but it doesn't eliminate a lot of weaponry most people -- including most gun owners -- wouldn't want in the hands of their neighbors.
Posted by: Russell | November 25, 2007 4:29 PM
Minor technical issue here raj - the DC home rule law is pretty clear and basic. Congress has veto power over any law passed by the DC council, but the council clearly has the power to pass laws as it sees fit.
I would interpret the DC home rule law a bit differently. It could be read to delegate power that Congress would have to the DC city government. The problem is that Congress does not have the power to restrict the right to keep and bear arms, and as a result it would not have the power to delegate that power to the DC government.
Posted by: raj | November 26, 2007 1:00 AM
Even assuming that the 2nd Amendment does in fact guarantee the right of private citizens to own guns outside of the context of a militia, the clear intent appears to have been to permit citizens to ensure that they are equipped so as to be capable of serving in one. how does that translate into guarantee of ownership of handguns, a term which I understand as being synonymous with "pistols"? How often are those used in actual battlefield situations?
Posted by: Azkyroth | November 26, 2007 9:21 PM
this is 2007, not 1789; we no longer have a militia. what weapons may be useful for militia duties is a moot point, because no such duties will be fulfilled anyway. (and a good thing, too, or else i could very well be expected to have a crate of bazookas in the closet! they'd be eminently well suited to modern battlefield situations and require but little training.)
what the right to keep and bear arms means to people today is, basically, the right to defend ourselves from unlawful attacks and the right to engage in the shooting sports if we wish to. pistols are useful towards both those ends.
Posted by: Nomen Nescio | November 27, 2007 7:45 AM