The Supreme Court Overturns the Handgun Ban

I personally don't see how you can get "unconnected with service in a militia" out of "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," especially in the context of militias and how they worked in the 18th Century. (This is especially important given that most of the US Founding Fathers didn't believe the state should maintain a standing army.) See, Scalia's a "strict constructionist," except for all the times he isn't...

Historically I think this is correct, but then typical for Scalia he, of course, ditches strict constructionism for a argument of constitutional law that has to evolve to fit with technology and modern life. I think it hits a perfect middle ground.

The founding fathers thought we should be armed. We remained armed for a long time in a manner consistent with this right. With the increasing density of the population and technological advances we had to make reasonable adjustments to the law. Bans of weapons that are reasonable to own exceed the scope of such adjustments.

I still disagree with the decision but I believe it is a responsible one overall. I think that cities should be able to ban weapons. You check your guns with the Sherrif before going into the tavern, and if not the Wyatt brothers might join up with Doc and disarm your ass. In the country you should be able to own a more significant arsenal including items that in a city would certainly travel through several buildings before lodging in an innocent 2-year-old. Density-dependent gun laws are my ideal, and I think DC's ban should have been consistent with a reasonable right of a state to restrict the ownership of weapons which are inconsistent with such a population density.

With this decision I think density-dependent restrictions are still possible. In DC they can say, for instance, you may own a handgun. It can be loaded. But this decision would let the city say it can't be with .50 caliber armor piercing rounds that won't stop for 1/2 a mile. Maybe they'll require people to use "home defense" ammo. If you have kids in the house, it must be secured so they can't find it or you're negligent. You sure as hell can't be carrying your gun concealed without a permit, and even then not on the Mall. All of these things would be consistent with this decision (and almost exactly specified) and are the kinds of things you need in cities to prevent havoc.

The gun ban in DC will still exist for a good amount of time due to Federal guidelines. Federal guidelines stipulate you must purchase a hand gun in the state in which you reside.

There are no gun shops in DC right now.

I'd like to point out that this really doesn't eliminate any kind of ban in DC. The plaintiff was not actually suing for protection of his individual right to possess firearms. More specifically, he was suing for the "right" to register his handgun within DC (he was a former cop and I believe this case was all about beating other ban challenges to the punch). All DC has to do is create a licensing mechanism and a gun registry, then make the requirements nearly impossible to fulfill. This is the way it works in NYC. Oh sure NYC has gun permits, but just try to get one.

The Supreme Court realizes that it's not a right if you have to ask permission. They just affirmed this with this case.

I would instead argue that time and technology had rendered the 2nd amendment invalid, and the court would have to expand and clarify what these rights mean in the light of 21st century technology.

What do you mean? What technology renders the 2nd amendment invalid?

Invalid may have be too strong. Let's try antiquated. And it was probably rendered antiquated with the Thomson machine gun resulting in the federal automatic firearms ban.

Nowadays it's even more antiquated. When you have 50 caliber sniper rifles that could ping a target at 3 miles, miniguns capable of unloading thousands of rounds a minute, and shoulder-mounted anti-tank weapons, we're not talking about firearms as much as we are about artillery. No sane person thinks the 2nd amendment's lose terminology of "arms" is adequate to describe a reasonable set of rights for an average 18 year old civilian.

The interpretation had to evolve to resolve the issues of dense population, insane weaponry, and the need to keep charismatic people from being assassinated every week...

Wheyghey, I think our esteemed author meant that guns are now more reliable and more lethal then at the time of the Constitution's writing. There weren't semi-automatic hand guns then, nor assault rifles with under-barrel grenade launchers. So all he is saying is that we need either a SCOTUS decision that acknowledges this, or an amendment to the 2nd amendment that acknowledges this.

As to Scalia's constructionist tendencies - I leave that to the legal scholars. As a died in the wool liberal, who also happens to discharge a firearm every one in a while, I have to say I'm pleased that the DC ban didn't stand in full. And my reason is really simple. If local, state or federal regulations can eviscerate the 2nd Amendment, then they can do likewise for all the other ones. Like Free speech, or peacable assembly, or protection against unlawful search and seizure (Note to the Administration). Like it or not, if we as a nation value all those rights, we also have to value the right to keep and bear arms.

And as a practical matter, armed citizens may well deter totalitarian governments. If the average person in Zimbabwe had a gun, things might be even bloodier, but that nation also might be more free.

I have a few rhetorical questions:

What ever happened to 'States Rights' that Conservitives keep forcing down our throats?

Also, if DC can't ban guns... Maybe we shouldn't allow the SCOTUS building to ban guns, Hmm? Maybe the metal detectors at the vatious Federal Buildings around the country are against the second amendment? It's (more or less) the same argument.

Now, realistically, I do think the constitution needs to be amended to lay out specific regulations on weapons, whatever that may be. The current ruling is clearly too vague to be of any use to anyone.

First, Scalia is not a strict constructionist. He's either an originalist or a textualist (I can't remeber which and I'm too lazy to look it up.)

Brendan, I'm no conservative but federalism (i.e. states rights) isn't implicted here, because it's a federal constitutional provision.
Also, read the opinion. It establishes why "DC banning guns" and "a federal building banning guns" is not the same thing.

First, Scalia is not a strict constructionist. He's either an originalist or a textualist (I can't remeber which and I'm too lazy to look it up.)

Brendan, I'm no conservative but federalism (i.e. states rights) isn't implicted here, because it's a federal constitutional provision.
Also, read the opinion. It establishes why "DC banning guns" and "a federal building banning guns" is not the same thing.

Now, realistically, I do think the constitution needs to be amended to lay out specific regulations on weapons, whatever that may be.

Actually, that's Congress's job:

Article 1, Section 8: The Congress shall have power ...To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

IMV, gun regulation can be very broad, provided that it doesn't interfere with individual ownership of militia-effective weapons. Those weapons can certainly be base weapons, say a sidearm and a rifle (a la AR-15), and registration can be required, regular training, accountability to each State for ammo inventory, etc, etc, etc. One clear, modern, militia-effective requirement would be standardization of weapons for interchangability of parts and ammo, which wasn't so standardized back in the day. Non-standard weaponry could be quite broadly banned or heavily regulated, in that such weaponry would make the militia less effective or doesn't have military usage.

I think the Swiss implementation is more like what Americans should be shooting for (so to speak...).

I liked publius' post on the ruling. His conclusion is that the result is probably the correct one, but the method (cherry-picking historical sources to support the decision) is fallacious in a general sense.

His main point is basically that it would take probably years of study by a qualified major to determine if a historical argument in a ruling is an accurate description of the opinions of the persons cited, which ultimately makes the basis of the decision opaque to anybody except the justices and to specialists in that era of history. Secondly, it ultimately is cherry-picking, because the dissent was able to come up with just as many historical justifications for the absence of an individual right. So how do we determine which set of cherry-picked quotes is right?

Legal precedent is one thing, but it seems to me that there should be a compelling reason for a ruling that relies on reasoned principles rather than amateur historical scholarship.

Having read the decision and plenty of for and against blogs, I can state categorically that wheygey in comment 4 is almost certainly wrong. The court itself, in the decision, while not sitting a 'standard of scrutiny' rejected the idea of no effective scutiny at all. This is a right, not a privilege (unlike a driver's license) and in the opinion of most of the observers of the decison, whatever ultimate standard is applied to gun rights laws, it is almost certain that laws that are so strict as to be effectively bans will not pass scrutiny. Indeed, I'm watching and wondering if the government of DC will be smart enough to recognize this and put something reasonable on the table or if they want to lose in court again.

The "well-regulated militia" dodge never made sense to me. The first clause ("A well regulated Militia, being necessary to the security of a free State,") is clearly a justification (and not necessarily the only one); it places no restrictions on the second clause, which is an absolute statement: "the right of the people to keep and bear Arms, shall not be infringed." Given the history of the times, it seems clear that the framers intended for the populace to possess arms potent enough to support an armed revolution if the government defaults upon its obligations to the citizenry. The notion that the framers didn't understand grammar and really meant to write "the right of members of a well-regulated militia to keep and bear arms" never seemed to me to hold water.

Given the history of the times, it seems clear that the framers intended for the populace to possess arms potent enough to support an armed revolution if the government defaults upon its obligations to the citizenry.

Ah, but only an armed revolution commensurate with the rules of war and with a command and control structure in place as well. The right must also be read with the section I quoted above regarding Congress's authority and State hierarchy, control, and implementation. Without such controls, it would not be a [i]well-regulated[/i] militia, but more like the warlord factions that are found in, e.g., Afghanistan or some parts of Africa or ..... perhaps now, Iraq.

The Second Amendment is no more obsolete than the first...and like the First, prior restraint should NEVER be allowed.

We don't lock people up....or deprive them of the ability to communicate because of what they MIGHT say, and people should not be denied their right to keep and bear arms because of what they MIGHT do.

Enforce the laws concerning armed crime and don't let liberal judges spouting psychobabble keep people who actually commit a CRIME with a gun from being punished, but don't try to criminalize possession of the gun by non-felons or anyone who otherwise isn't disqualified from their civil rights.

Generally speaking, if an individual has the right to vote they should have the right to possess and carry a firearm.

I think typical for such a position George has demonstrated the type of belief about rights that is pervasive but largely incorrect. What you want to be true and what is true are two different things.

We regulate speech very carefully, and prior restraint does exist. If you were say, a neo-Nazi and want to have a rally, guess what? You need a permit. You want to proselytize in the airport? Get ready to be confined to the "free speech zone". You want to slander, defraud, or endanger people? Get ready for a jail cell. Speech has restrictions too. No fire in the movie theater, free assembly is regulated by the state, advertisement follows very strict regulations about what you can or cannot say and what time of day you can say it.

Go back and read about 200 years of jurisprudence and you'll see each of our inalienable rights is regulated, carefully circumscribed, and limited and narrowed by the courts to very specific boundaries. And guess what? It's a good thing. It happened for a reason and I think the system works. Similarly, the 2nd amendment will have to be circumscribed so that some jackass won't own a rifle that fires rounds that will go through 25 houses at a time. You can't own fully automatic weapons (thank goodness), you can't take your gun wherever you want, and the state has a compelling interest to tell you so. Speech is the same way, when the state has a compelling interest to regulate it, free speech gets regulated. It's not as simple as you believe.

Ah, but only an armed revolution commensurate with the rules of war and with a command and control structure in place as well.

Clearly they favored that, given their positive remarks about a "well-regulated" militia. Whether they believed that an ill-regulated militia is still better than none is left unsaid, but what is absolutely clear is that the second clause does not restrict the right of gun ownership to members of a well-regulated militia, as it easily could have done, had that been the intent.

We regulate speech very carefully, and prior restraint does exist. If you were say, a neo-Nazi and want to have a rally, guess what? You need a permit. You want to proselytize in the airport? Get ready to be confined to the "free speech zone". You want to slander, defraud, or endanger people? Get ready for a jail cell. Speech has restrictions too.

These aren't very relevant examples. 1) If you're a Nazi holding a rally, you do not need a permit for your speech. You need a permit so that the city can prepare to provide security and cleanup, just like an apolitical parade or concert might require. The content of the speech is irrelevant as far as the government's concerned as many SCOTUS cases can attest. 2) Airports are (at least partially) private property, and just as you can regulate the comments in your blog they can regulate who they want to speak. The government as such can't and doesn't regulate non-threatening speech in airports. 3) Slander and fraud are not illegal as speech, rather the effects resulting from that speech are illegal. This is essentially like a model of gun regulation in which the guns themselves are nearly unregulated but crimes with guns are permitted - a model which most states at least partially implement.

"You just make the laws for handgun violations draconian, and make sure concealed-carry licenses require significant screening, training, and clearance."

You run into problems with this line of thought/action as well. In cities where concealed carry licenses are extremely hard to get, above and beyond reasonable requirements of background checks, training and approvals, well meaning people can run into handgun violations without intending to, or without any other recourse.
If you talk to folks on the ground, in places like NYC, or pretty much any of the major cities in California, it is next to impossible to actually get a permit unless you are "somebody". Given that many people have opted to carry illegally, particularly when actively threatened by things such as stalkers, abusive ex-spouses, etc. and when caught fall prey to the "draconian" punishments for violations.
There needs to be a reasonable middle ground between access to permit's and punishment of criminals without an attitude of every gun-owner, concealed carry permit holder, being a potential criminal. Frankly, there is enough evidence to the contrary that the trust level for legal, responsible, permit seeking gun-owners should be much higher. Making permits excessively hard to obtain makes more criminals out of honest people who feel trapped by the system in the face of fear and threat. Reasonably easy to obtain permits dont put more guns on the streets - They make more people legal, who will do no harm. Those who would do harm (which is the extreme exception among permit holders) are then that much more in the system.
I'm glad for the decision, and the support of firearms ownership for self-defense, specifically. That has long been an almost dirty term - Hunting and sporting/recreation were valid reasons to own firearms, but the reasonable and justified use of them against humans (even human predators) has been often regarded as a foul thing. In a world where we have shown, repeatedly, its impossible to keep guns from the hands of criminals, I think its important that we recognize that law abiding individuals have the right to also arm themselves. I think this very much transcends local/state/federal law, and even the constitution of the United States (or the similar articles of any other nation), and is not an issue of legality or citizens rights, but is an issue of natural rights - The "right" (as granted by very existence and evolutionary process) of a species to try and run faster than its predators, or at the very least try to run faster simply to stay in the same balance between being eaten and not.

I think the prevailing wisdom among legal scholars is that the 2nd was an individual right. It is one of the reasons that Sen. Obama carefully avoided any commentary on the case, as he had advanced that position as well.

Personally, I am glad of the decision. Like Roe v Wade, it seems to establish a bright line for legislators and affirms a very fundamental right of the population.

MarkH,

You can't own fully automatic weapons (thank goodness)...

As usual you are wrong. There is no "ban" on fully automatic weapons. One need only register and obtain a $200 federal tax stamp for each weapon. My neighbor has owned an Uzi and a fully automatic M-16 A2 for years.

The rest of your pontificating is just as fatuous. As trrll correctly points out the 2nd Amendment was put in place to ensure that if the government became tyrannical the people had effect weapons to reign it in.

So unless you think human beings have evolved to the point that they will never aspire to tyranny the 2nd amendment is as timely today as it was when it was placed in the Bill of Rights.

Don't like it? Then amend the constitution, but your attempts to redefine it are just more of your usual arrogant babbling.

Ah, my favorite troll is back. Full of bile and anger as always.

One could use the same logic to say that a handgun ban did not exist in DC. You could own a handgun, but you had to be registered, it had to be disassembled/locked up etc., and they made it so difficult even an ex-cop couldn't get one. It was an effective ban.

Similarly fully automatic weapons are banned. Sure you can get an FFA, but to get one you pretty much have to be a gun dealer, you have to pay the tax, get the local police to sign off, and then the ATF can feel free to say no. Further, possession of the weapons causes you to waive your right to avoid search and seizure. It's an effective ban.

The 1934 national firearms act says it all. Ordinary folks can not get these weapons, it is a ban and it has been upheld by the supreme court in previous decisions.

As far as the rebuttal of preemptive free-speech restrictions, I notice my advertisement example was avoided. Further, someone doesn't need to prove injury to an individual for the FTC to go after fraudulent speech or advertising. And there are many more examples of speech that simply are not allowed. You do not have an absolute right to say whatever you will.

Matt, the examples I provided were of limitations on speech and free assembly. The only point I was making was that there are regulations on speech and free assembly that are imposed by the state. You don't have absolute freedom to say what you want, when you want. You also don't have the freedom to say what you want if it happens to be fraud, incitement of violence, or riot, and you have to go through a regulatory process to even say it. How is that different that requiring registration for firearms? Sure, you still have the freedom, but you can't deny that for even our basic freedoms there is standing common law that allows the state to restrict it through regulation.

MarkH,

Bile huh? Did you even bother to read the information to which you linked? The process isn't nearly as difficult or onerous as you suggest. As I said my neighbor owns two fully automatic weapons. The $200 dollars for the tax stamp was chump change compared to the price of the weapons and the process was about as difficult as say obtaining a local building permit.

Of course it would be too much to expect you to swallow your pride and just admit that there is no "ban" on fully automatic weapons. That might tarnish your self-delusion of infallibility.

Then there is the larger issue that the "Miller" decision hinged on the fact that sawed off shotguns were not useful to militias and thus could be restricted. Obviously fully automatic weapons would be very useful to militias and hence Miller is poor law to begin with. It only became an issue because of the media reinforced public misperception that gangsters were out gunning the law.

As is typical some politicians, aided by a sensationalist media, exploited public fears to limit the freedom of the people they are supposed to serve. You of course are all for limiting freedom so long as it is not your own.

So, if you have to pay 200 dollars, is it still an individual right?

Or is there state regulation? That is the sole question under discussion.

Your paranoia is clouding your judgment. We probably even agree on this issue. I'm agreeing in large part with the conservative position. All I'm saying is something that 200 years of case law and jurisprudence is consistent with. That is, when there is a compelling state interest, even when it comes to the 1st amendment, there is regulation.

Maybe you should go back to your specialty of global warming denialism where you and I disagree. Maybe tie in a nice Al Gore controls the media conspiracy for us?

MarkH,

Maybe you should go back to your specialty of global warming denialism where you and I disagree.

Perhaps later, but for now I'm glad to hear that you and I largely agree on the second amendment.

Your brother speaks of the constitution "evolving" as if the words morph to mean something completely different at a later date. Do you agree?

The 2nd amendment was put in place to ensure that the people had access to effective weapons to resist tyranny, both foreign and domestic.

It takes very little research into the history of the period and the views of the framers to realize that they didn't have hunting and home protection in mind when they crafted the 2nd amendment. Although, those were also recognized as legitimate uses of fire arms.

One can argue that times have changed and there is no need for such worries or question the effectiveness of an armed citizenry to resist tyranny, but one cannot legitimately twist the 2nd amendment to mean something completely different without either ignorance of the intent of the framers or dishonest appeals to sophistry based on word games.

I agree that rights are not with out limit. That limit is of course based on the point at which your right interferes with the rights of others. I'm afraid we probably disagree on these limits but of course that is the purpose of legislation. So long as the fundamental rights are agreed upon there can be democratic methods to reach agreement, but if the basic rights cannot be agreed upon there is little recourse left but violent confrontation.

That is why I think it is so important that people don't attempt to make an end around on constitutional issues. If you honestly believe that the 2nd amendment is wrong in enumerating a basic right to bear arms then the only legitimate recourse is to attempt to repeal it through the amendment process.

Otherwise the constitution can be "interpreted" to mean just about anything that a majority decides it to mean. That so many decisions are decided 5-4 along ideological lines is very distressing.

The Supreme Court has become a political battlefield. This is very dangerous indeed.

Guns to don't kill people, people kill people.

Before you completely cast this old tag line aside, really give some thought to it.

Do you really believe that if someone wants to rape, pillage, murder, abuse, rob, etc someone or an institution that they won't find a way to do it. (be it gun, machette,knife, stick, brick, grenade, bat, etc)? No one can be that naive to think that just because it may be difficult for someone of the criminal mind to get a gun is going to stop them from doing something criminal.

If you want to stop people from using guns to hurt, kill or otherwise perform criminal acts then enforce the laws and provide punishment. If the punishment were severe enough a large group of criminally minded gun toters would think twice. There will always be that portion that is undeterred by the threat of punishment and you simply lock them up for life or (another intense debate) "fry 'em".

Gun bans will do nothing to stop the criminal and will put the law abiding citizen at a disadvantage when trying to protect himself, family and property. Lastly, the constitution does not need any help from the likes of the politicians, judges, etc we have today. Our founding fathers were so much brighter, smarter and aware than these idiots we have in posts of power today that it can't even be compared!