U.S. justices could decide constitutionality of gun ownership

[Zeebadee]

U.S. justices could decide constitutionality of gun ownership - International Herald Tribune

The Supreme Court has never answered the Second Amendment question directly, and it has been nearly 70 years since the court even approached it obliquely. A decision in 1939, United States v. Miller, held that a sawed-off shotgun was not one of the "arms" to which the Second Amendment referred in its single, densely written and oddly punctuated sentence: "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." Asked during his confirmation hearing what he thought that sentence meant, Chief Justice John Roberts responded that the Miller decision had "side-stepped the issue" and had left "very open" the question of whether the amendment protects an individual right as opposed to a collective right.

This could get very interesting.

[Praxius]

70 years afterwards.... in fact how long since this was created, and people are still trying to figure out what it means?

[Jack]

The IHT has already moved that page. Is there a case coming before the court on this issue?

[Zeebadee]

Quote by: Isherwood The IHT has already moved that page. Is there a case coming before the court on this issue?

That's the question.

"The justices are facing a decision about whether to hear an appeal from city officials in Washington, D.C., wanting to keep the capital's 31-year ban on handguns. A lower court struck down the ban as a violation of the Second Amendment rights of gun ownership.

The prospect that the high court might define gun rights under the Constitution is making people on both sides of the issue nervous."
Justices mull 1st real look at 2nd Amendment in decades - USATODAY.com

[Osborn F Enready]

I don't know a single gun owner who would relinquish their arms, regardless of what the court finds.

[Zeebadee]

Quote by: Osborn F Enready I don't know a single gun owner who would relinquish their arms, regardless of what the court finds.

I wonder if the court will be taking that into consideration when (and if) they deliberate the issue.

[Sonart]

.

70 years afterwards.... in fact how long since this was created, and people are still trying to figure out what it means?

Based on the standing precedent in Miller, and the overwhelming majority of the Federcal Circuit Courts of Appeal, It means you have the right to keep and bear arms provided it's necessary for the maintainance of a well regulated militia, as defined by Article I, Section 8, clause 15-16 of the Constitution.


Example: 1st Circuit Court - Cases. v U.S., Nov. 27, 1942

--"While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career.."--

Additional standing precedents from the Circuit Courts that uphold Miller.

1st Circuit Court - Thomas v. City Council of Portland, 730 F.2d 41, 42, 1984

2nd Circuit Court - Bach v. Pataki, Aug. 2004

3rd Circuit Court - U.S. v. Rybar, Dec. 1996

4th Circuit Court - Love v. Pepersack

5th Circuit Court of Appeals, United States v. Johnson, April 28, 1971

6th Circuit Court of Appeals, united states v. warin, Feb. 1976

8th Circuit Court of Appeals, United States v. Hale, Oct. 1992

9th Circuit Court of Appeals, Silveira v. Lockyer, Oct. 1992

10th Circuit Court of Appeals, United States v. Oakes, 564 F.2d 384, 1977, Dec. 5, 2002

Quote by: Osborn I don't know a single gun owner who would relinquish their arms, regardless of what the court finds.

Is anyone asking you to?


.

[Osborn F Enready]

I think violent overthrow and revolt should weigh heavily in their minds when contemplating such nonsense.

As if this issue isn't obvious by the wording in the Bill of Rights alone.

Sonart, we are well aware of what the corrupt interpretations have been, but the wording is quite obvious, as is the words from the founders themselves.

"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government"

-- Thomas Jefferson, 1 Thomas Jefferson Papers, 334

"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good"

-- George Washington

"The best we can hope for concerning the people at large is that they be properly armed."

-- Alexander Hamilton, The Federalist Papers at 184-188

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

-- Benjamin Franklin, Historical Review of Pennsylvania, 1759.

"A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms."

-- Senator Richard Henry Lee, 1788, on "militia" in the 2nd Amendment

"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined."

-- Patrick Henry, speech of June 5 1788

"One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms."

-- Constitutional scholar Joseph Story, 1840

"The bearing of arms is the essential medium through which the individual asserts both his social power and his participation in politics as a responsible moral being..."

-- J.G.A. Pocock, describing the beliefs of the founders of the U.S.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

-- 16 Am. Jur. Sec. 177 late 2d, Sec 256



I think the intent of the 2nd Amendment was made quite clear by the men who drafted, adopted and ratified it.

We don't need a modern group of partisan appointees to tell us what we already know, and has been "common knowledge" since the adoption of our system of law.

[brien]

The Court hasn't even agreed to hear the case. Should it decide against it, it will leave the Appeals Court decision in place and people in DC will once again be on the correct side of the law to obtain a permit to carry. This would perhaps be a win by default for those who seek permits in DC.

"The Bill of Rights, void where prohibited by law."

Here is a link to the opposite side of those who hang their hat on the Miller decision. This information squarely shows that throughout history before the Miller decision, the courts interpreted for the individual's right over the people's right to bear arms.


Exposing the Second Amendment: Federal Preemption of State Militia Legislation

The analysis which follows shows that federal power over the militia is not limited by the Second Amendment. Federal regulation, even if deficient or onerous to the states, can preempt state militia regulation. More unexpectedly, the following analysis also reveals that the Supreme Court has long considered militia jurisprudence to be an archetype for federal preemption. Landmark decisions on commerce regulation and other subjects have been patterned after explanations of federalism propounded in Houston v. Moore, a militia case. Two centuries of Supreme Court pronouncements on the militia contradict the modern lower-court gun-case assertions about the Second Amendment. The "states' right" alleged to reside in the amendment vanishes when exposed to the light of actual militia jurisprudence. Those who argue that Second Amendment protection belongs to the people, as expressly stated in the amendment itself, are being answered with a shadow-doctrine having no existence outside gun case dicta.

The conclusion:

IX. Conclusion The federal court gun-possession case pronouncements bearing on the militia and federalism are irreconcilable with the actual constitutional status of state militia regulation as expounded by the U.S. Supreme Court. Intentionally or otherwise, jurists have deluded themselves and the legal community into accepting the convoluted proposition that plenary power to organize and arm the militia was both delegated to Congress (through the Militia Clauses) and(p.72) reserved to the states (under the Second Amendment).[111] If such a phenomenon exists in the U.S. Constitution it is remarkable that the Supreme Court has never cited the Second Amendment as an example of "dual sovereignty," "dual federalism," or "new federalism" in the course of its endless labors to define the boundaries of state and federal power. In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I, Section 8, Clause 16 which limits Congressional interference with the "state" militia. The Court's repeated citations to the preemption of state militia law when adjudicating state-federal conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are ordinary in their susceptibility to federal preemption. Because the Second Amendment is not a prophylactic benefiting state legislative or executive powers, it must represent either a nonsensical protection of federal militia powers from federal interference,[112] or it represents some type of right held directly by the people. Any benefit to the state governments from the Second Amendment must be incidental to a citizen-held right binding on the federal government. The dwindling proponents of the "states' right" interpretation of the amendment cannot point to a single instance of a militia-related(p.73) federal law being invalidated on Second Amendment grounds, despite the Supreme Court having had multiple opportunities spread over two centuries to invoke the amendment for that purpose. The suspicious obstinance of the lower federal courts in clinging to the "states' right" interpretation presents a serious obstruction to the proper adjudication of the nature and scope of the Second Amendment right, and thus serves only to exacerbate and prolong the current public-policy impasse regarding gun ownership. The American public deserves a more considered, consistent, and constitutional approach to the delineation of the Second Amendment right. The decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places federal preemption of state militia powers among the most well-settled propositions in American constitutional law

.

[tinybear]

A judge must not shy away from politically sensitive issues. At least, I hope the Justices won't.

[Chaossaber314]

Osborn, Good quotes though I found the two regarding Jefferson and Hamilton to be humorous.

-Jefferson advocated regular revolution. A policy that I think would make any government unstable.

Quote by: Jefferson "Every constitution then, and every law, naturally expires at the end of nineteen years. If it is to be enforced longer, it is an act of force, and not of right."

2007-1787 = 220 - 19 = 201

2007 - 201 = 1806

So by Jeffersonian philosophy, the right to bear arms expired a few centuries ago.

-Alexander Hamilton was actually shot to death in a dual. Somewhat ironic to this argument wouldn't you say?

I'm actually on your side in this instance (there's enough precedent and case law to support the possession of hand guns to those over 21), but I found those two quotes in particular just to make me smile.

[Osborn F Enready]

Chaos said: Osborn, Good quotes.....

Thank you.

Chaos said: Jefferson advocated regular revolution. A policy that I think would make any government unstable.

If peaceful revolution is possible, violent revolution is not necessary. That is why we have a means of petition of redress, before the courts and Congress stopped "addressing them".

A government of the people, must be kept in check by the people, and the means of doing this are relevant to the means being used to subvert the system in which the people have a right to shrug off, or remove.

As force is used more and more to subvert the Constitution and rule of law, the people will use force relevant to achieve their goals, and hopefully all that is necessary, not more or less.

Chaos said: Alexander Hamilton was actually shot to death in a dual. Somewhat ironic to this argument wouldn't you say?

Not at all. Honor killings, or duels used to be fairly common-place, but then again, much higher regard was placed on integrity, honor and respect.

He was a man who lived by the rules of his time.

Chaos said: I'm actually on your side in this instance (there's enough precedent and case law to support the possession of hand guns to those over 21), but I found those two quotes in particular just to make me smile.

Well, glad to make you smile, but I would take Hamilton of Jefferson over any scumbag in Washington today, except maybe Ron Paul.

[Praxius]

Quote by: Osborn F Enready I think violent overthrow and revolt should weigh heavily in their minds when contemplating such nonsense.

Ha ha ha ha.... oh man, let me wipe that tear from my eye..... I find US priorities humorous at times.

A corrupt government, talk of Universal Health Care, heading into new war talks with Iran and WWIII..... and yet try and take away your guns and then you guys speak about revolutions?

*shrugs* oh well.

But now you're trying to throw many various quotes together to get one meaning:

"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government"

Understood and I agree.... but this states nothing about firearms in paticular.

"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good"

I read an aknowlegement of the evils with firearms being everywhere..... where does he in paticular set forth the rights to everyone using these and this quote overpowering what it said in the constitution about the Militia? They deserve a place of honor is what I see, but where is the connection to the constitution? This could have easily been a personal opinion, like how he likes blueberry pie....

"The best we can hope for concerning the people at large is that they be properly armed."

This doesn't mean Firearms alone either..... this could go from sling shots, to everyone having their own personal battle tank.

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Then what does this say about today's US? And how is having a beretta define your "Liberty?" ~ Isn't this whole mentality of having a gun the same thing as Temoporary Safety?

"A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms."

Once again.... where the hell does this relate to having the rights to have firearms specifically within your home? All men capable of bearing arms is in reference to age and health.... not a right to actually having one. This is a core explination of what a Militia is.... as we have them here as well. Still waiting for a solid explination.....

"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined."

Once again.... where is the connection to firearms? I think you've been trying to look too far into words to justify your stance. These beliefs are in many other countries, including my own, yet we still don't require to be loaded with guns in our homes for any of this.

"One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms."

An offense to keep all arms yes.... restricting the use of common citizens from using firearms unless in a time of revolt or use of local militia isn't.

"The bearing of arms is the essential medium through which the individual asserts both his social power and his participation in politics as a responsible moral being..."

This quote of course not only doesn't relate to firearms once again.... but makes no sense.... In order for an individual to assert their social power and participation in polotics is by a gun?.... sorry.... "Arms" not "Firearms?" ~ I think I see where the country slipped up in mentality.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.

Sure.... but as of yet.... this discussion has not gotten beyond what is constitutional.... the right to own a firearm against robbers or violent offenders in society is not what your constitution is upholding from what I read, neither are any of your quotes at that.

I think the intent of the 2nd Amendment was made quite clear by the men who drafted, adopted and ratified it. We don't need a modern group of partisan appointees to tell us what we already know, and has been "common knowledge" since the adoption of our system of law.

The common knowlege, if based around the above, is greatly flawed.

[brien]

The 2nd amendment is the basis for individual firearms ownership in the US. Some people will always try to abridge that right, but now the resistance is well financed and well prepared to beat any challenge back, even as far as going to SCOTUS. Those of us who support individual firearms ownership would welcome the review of Parker vs District of Columbia b/c we feel the time has come to settle the question once and for all.

The issues that Miller brought up in 1939 have been thoroughly addressed and in my opinion, thoroughly refuted on the basis of the right of individual ownership of firearms. The issues that Parker raised in DC are now in the forefront, and so far it seems that they will remain in support of the individual's right to hold firearms in DC.

So all of this blustering about restricting the ownership of firearms by individuals is merely speculation or wishful thinking b/c so far, I haven't seen evidence of any contractions of the 2nd amendment and the right to keep and bear arms by an individual. In fact, Parker has demonstrated just the opposite. Hear hear....

[Sonart]

.

Quote by: Osborn F Enready As if this issue isn't obvious by the wording in the Bill of Rights alone.

It IS obvious by the wording alone. "A well regulated militia being necessary for a free state" is a clear, qualifying statement. This being the condition, what follows applies. And since this condition no longer exists, it does not apply.

Quote by: Osborn F Enready I think violent overthrow and revolt should weigh heavily in their minds when contemplating such nonsense.

Why? We've been living under the Miller ruling just fine and Americans seem quite comfortable with the increasing regulation of gun ownership. What's to overthrow?

"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government" -- Thomas Jefferson

Which he said in 1776, immediately after the colonists had successfully engaged in armed rebellion. I daresay his sentiments were likely somewhat different when HE was President... and Commander in Chief, who's duty was, among others, to "suppress insurrections".

I think the intent of the 2nd Amendment was made quite clear by the men who drafted, adopted and ratified it.

Indeed it was. They made quite clear that the defense of the country should be left to well-regulated militia composed of citizen volunteers, each of whom would supply their own powder and musket... and horse.

If you'd prefer we go back to that system, then by all means, organize a movement to do away with our professional armed forces and replace them with local militias.

Until then, the point was long ago rendered moot.

.

[Osborn F Enready]

Sonart, I have heard your arguments and shot them down repeatedly.

Is it necessary to go through it again?

[tivodan1116]

Quote by: Sonart . It IS obvious by the wording alone. "A well regulated militia being necessary for a free state" is a clear, qualifying statement. This being the condition, what follows applies. And since this condition no longer exists, it does not apply.

What condition no longer exists? A free state? I would agree with that. Precisely why the right to bear arms is important.

Indeed it was. They made quite clear that the defense of the country should be left to well-regulated militia composed of citizen volunteers, each of whom would supply their own powder and musket... and horse.

LOL, your historical perspective is so skewed a third-grader could see the flaws.

"The defense of the country" - Except that when the Bill of Rights was written, the most recent and by far most important use of the militia was the beginning of the violent overthrow of a tyrannical (but legitimate nonetheless) government of the colonies.

They didn't mean "defense" from outside invaders. Securing a free state means protecting against the government's tyranny.

If you'd prefer we go back to that system, then by all means, organize a movement to do away with our professional armed forces and replace them with local militias.

None of the founding fathers ever referred to Washington's army as a "militia" even though it consisted of regiments sent from the several states, so why would they then use that word to refer to the States' units in the Bill of Rights?

[brien]

Until then, the point was long ago rendered moot.

Since Sonart's post was directed to Osborn, I will concede to him. But I must say, the only thing moot around here are some of Sonart's personal beliefs about the 2nd Amendment. I don't criticize Sonart's right to his opinions, but they must be recognized that most are merely opinions.

The fact is: Parker vs District of Columbia is an overturn of the restriction of the 2nd Amendment in DC. The pendulum is swinging towards the individual's right to own and carry firearms and the decision such as in the Parker case supports this fact in law. It is not merely opinion.

http://www.guncite.com/court/fed/parkerDC_appeal.pdf

There are other cases in judicial history that speak to the 2nd amendment being the right of an individual to keep and bear arms..

NRA-ILA :: Fact Sheets

United States v. Verdugo-Urquirdez, 110 S. Ct. 3039 (1990). This case involved the meaning of the term "the people" in the Fourth Amendment. The Court unanimously held that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., that "the people" means at least all citizens and legal aliens while in the United States. This case thus resolves any doubt that the Second Amendment guarantees an individual right.

U.S. v. Emerson, No. 99-10331 (Fifth Circuit, 1999)

The court agreed with the trial court that the right to arms is an individually-held right, however. "All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans," the court stated. "We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms....We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment

U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972). This is another case involving possession of a firearm by a convicted felon. In holding that 18 U.S.C. App. Section 1202(a) (reenacted in 18 U.S.C. 922(g) in 1986) did not infringe the Second Amendment, the court held (based upon its partially erroneous view of Miller) that there needed to be evidence that the statute impaired the maintenance of a well-regulated militia. As there was "no showing that prohibiting possession of firearms by felons obstructs the maintenance of a `well regulated militia,`" the court saw "no conflict" between 1202(a) and the Second Amendment. While Miller focused on the need to introduce evidence that the firearm had a militia use, Synnes at least recognized the relevance of a militia nexus. There was a clear recognition, moreover, that the Second Amendment guarantees an individual right.

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071(S.D. Ala. 1989), aff`d, 894 F.2d 412 (11th Cir. 1990) (mem). The court held that the Second Amendment "guarantees to all Americans` the right to keep and bear arms`. . ."

From the above cases, and more not cited, it is clear that the courts routinely hold that it is the individual who has the right to keep and bear arms, and furthermore it is independent of any reason to support a state militia. This business that an individual's right to keep and bear arms is inextricably tied to a state militia has been successfully argued as a non sequitur. Once again, see this link:

Exposing the Second Amendment: Federal Preemption of State Militia Legislation

(p.43) The analysis which follows shows that federal power over the militia is not limited by the Second Amendment. Federal regulation, even if deficient or onerous to the states, can preempt state militia regulation. More unexpectedly, the following analysis also reveals that the Supreme Court has long considered militia jurisprudence to be an archetype for federal preemption. Landmark decisions on commerce regulation and other subjects have been patterned after explanations of federalism propounded in Houston v. Moore, a militia case. Two centuries of Supreme Court pronouncements on the militia contradict the modern lower-court gun-case assertions about the Second Amendment. The "states' right" alleged to reside in the amendment vanishes when exposed to the light of actual militia jurisprudence. Those who argue that Second Amendment protection belongs to the people, as expressly stated in the amendment itself, are being answered with a shadow-doctrine having no existence outside gun case dicta

Sonart's tired old argument that the right of the individual to keep and bear arms is tied to the clause for the state militias is now shown to be irrelevant. We see that it is the individual's right to keep and bear arms independently of the right to form a militia, and once again it is b/c the Federal government has powers of the militia and not the states right which would set up a dual federalism with regard to the 2nd Amendment.

IX. Conclusion The federal court gun-possession case pronouncements bearing on the militia and federalism are irreconcilable with the actual constitutional status of state militia regulation as expounded by the U.S. Supreme Court. Intentionally or otherwise, jurists have deluded themselves and the legal community into accepting the convoluted proposition that plenary power to organize and arm the militia was both delegated to Congress (through the Militia Clauses) and(p.72) reserved to the states (under the Second Amendment).[111] If such a phenomenon exists in the U.S. Constitution it is remarkable that the Supreme Court has never cited the Second Amendment as an example of "dual sovereignty," "dual federalism," or "new federalism" in the course of its endless labors to define the boundaries of state and federal power. In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I, Section 8, Clause 16 which limits Congressional interference with the "state" militia. The Court's repeated citations to the preemption of state militia law when adjudicating state-federal conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are ordinary in their susceptibility to federal preemption. Because the Second Amendment is not a prophylactic benefiting state legislative or executive powers, it must represent either a nonsensical protection of federal militia powers from federal interference,[112] or it represents some type of right held directly by the people. Any benefit to the state governments from the Second Amendment must be incidental to a citizen-held right binding on the federal government. The dwindling proponents of the "states' right" interpretation of the amendment cannot point to a single instance of a militia-related(p.73) federal law being invalidated on Second Amendment grounds, despite the Supreme Court having had multiple opportunities spread over two centuries to invoke the amendment for that purpose. The suspicious obstinance of the lower federal courts in clinging to the "states' right" interpretation presents a serious obstruction to the proper adjudication of the nature and scope of the Second Amendment right, and thus serves only to exacerbate and prolong the current public-policy impasse regarding gun ownership. The American public deserves a more considered, consistent, and constitutional approach to the delineation of the Second Amendment right. The decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places federal preemption of state militia powers among the most well-settled propositions in American constitutional law

.

So we see that it is NOT the state militia that trumps the authority of the 2nd Amendment. The argument should be sorted out as to whether the Federal power of the security of the "state" belongs to the states or to the Federal government. It seems as though case law shows this power is relegated to the Federal authority thus negating the states right to restrict individual rights contained and specified in the 2nd Amendment.