How the Second Amendment Was Restored

The inside story of how a gang of libertarian lawyers made constitutional history

Brian Doherty from the December 2008 issue

On the last date of the U.S. Supreme Court’s 2008 spring session, justices declared by a 5-4 decision in D.C. v. Heller that, yes, the Second Amendment does secure an individual right to keep and bear arms. With that, the high court voided the District of Columbia’s extreme regulations on gun ownership, which had amounted in practice to a complete ban on any usable weapon for self-protection, even in the home.

In retrospect, D.C. v. Heller seems almost inevitable, because of shifting public and academic attitudes toward gun rights. But victory came only after a protracted struggle, with many pitfalls along the way. It was pulled off by a small gang of philosophically dedicated lawyers—not “gun nuts” in any stereotypical sense, but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country. In the process, they set the stage for further legal challenges to other firearms restrictions from coast to coast.

Someone was going to reach the Supreme Court with a challenge to firearms regulation. In the 2001 Fifth Circuit case U.S. v. Emerson, a federal appeals court for the first time declared unequivocally that the Second Amendment, despite containing the word “militia” in its preamble, did indeed protect an individual right to bear arms. Though groundbreaking in the judicial system, that individual rights interpretation was already dominant within the legal academy, after decades of scholarship chipped away at the once-preeminent “collective rights” view that the amendment only protected either a state’s right to maintain a militia, or an individual’s rights within the context of militia service.

The Emerson decision rippled beyond the courts. On November 9, 2001, then–Attorney General John Ashcroft sent a memo to all U.S. attorneys praising the case for how it “undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment ‘protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.’ ”

Gun rights were on the rise politically as well. Democrats lost Congress in 1994, and the White House in 2000, in part because of a backlash against the 1994 assault weapon ban. In the 21st century, the party no longer makes gun control a major issue. On the state level, laws making it easier for citizens to carry weapons have also been proliferating over the past two decades; the number of states with concealed-weapon “shall issue” standards (objective criteria with little or no bureaucratic discretion) now stands at a de facto 37, up from just eight in 1986.

That was the legal, political, and social environment in which Heller was launched in 2003. “The timing was ripe,” says attorney Robert Levy, then a senior fellow at the libertarian Cato Institute (and now its chairman) and the man who financed and spearheaded the case.

Yet Heller was almost derailed on a series of occasions, sometimes by the very people who cherish gun rights and constitutional protections the most, including the National Rifle Association (NRA). Many lacked confidence that the Court was ready to catch up with the legal academy. In the hour of opportunity, many blinked. Victory over these self-doubts provide a powerful reminder that, as Barry Goldwater reminded us, sometimes an overly fearful moderation in the pursuit of justice is no virtue, and that even decades of bad policy and bad political philosophy can turn around with smart, tenacious efforts.

Parker Becomes Heller

The inevitable post-Emerson challenge to gun restrictions could well have come from a radically different point of view. Various Washington, D.C., public defenders, for example, were trying to apply Emerson to reduce the prison sentences of their clients—street criminals who typically had a whole host of charges hanging over their heads, not otherwise law-abiding citizens seeking to arm themselves in their home.

So, prodded on by suggestions from a young lawyer named Clark Neily from the libertarian public interest law firm the Institute for Justice, Robert Levy assembled a team that included his Cato colleague Gene Healy (who dropped out before the case reached the Supreme Court), Neily himself, and the private-practice attorney who eventually argued the case in front of the Court, a Virginia libertarian named Alan Gura. Levy’s team then went searching for the ideal clients.

D.C. was the best place to start litigating the Second Amendment. The district is not a state but a federal enclave under direct control of Congress (though it has its own government with home-rule leeway), so lawyers could sidestep the contentious and still-unsolved issue of whether the Second Amendment applied to the states via the Fourteenth Amendment, which stipulates that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.…nor deny to any person within its jurisdiction the equal protection of the laws.” That amendment has for the past half-century or so been interpreted to apply the provisions of most of the Bill of Rights to state and local government actions.

Besides, the city had the most ridiculously severe gun laws in the country. According to D.C. Codes 7-2502.01, 7-2502.02, 7-2507.02, and 22-4504 and 4515, it was illegal to have a handgun without registering it, and you couldn’t register it if you didn’t already own it before the law was passed in 1976; it was illegal to have your long gun in the home in any condition other than unloaded and disassembled or trigger-locked; and if you had a registered handgun, even carrying it around your house could net you a year in jail and a $1,000 fine.

After much searching by Levy’s team, six plaintiffs were selected. They filed the case on February 10, 2003. Back then, it wasn’t the Heller case, but the Parker case, named after original lead plaintiff Shelly Parker.

Parker, a black woman, had the potential to become a new kind of civil rights icon, standing up not just for the right to be treated fairly by other people but to take control over her own life and safety. She had a dramatic story of the type that should make everyone this side of Sarah Brady want to
overnight her an out-of-state mail-order handgun.

In February 2002, Parker, a former nurse now working in software design, moved to a neighborhood on the northeastern edge of Capitol Hill rife with tenacious drug gangs. She wanted her neighborhood to be a safer and more comfortable place for law-abiding citizens, and so made a nuisance of herself to local drug dealers, walking the streets as a one-woman citizen patrol, calling cops when she saw illegal activity, and installing a security camera for her yard.

Comments

Ben1|11.18.08 @ 8:59AM|#

The USSC did the right thing. Just barely. Mostly by accident. I say this because while it is clear that the four judges (of nine total) who dissented haven't even got a ghost of a clue as to what the constitution is, much less what it says, there is more here to astonish and perturb those who actually read the decision of the majority of five. They don't know what they're doing either; that, or they are involved in a conspiracy against the citizens of the United States.

I'll start by quoting the 2nd amendment in its entirety, and then I'll analyze it. Then I'll discuss the USSC majority and minority positions.

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.

First, there is the prefatory or explicatory phrase: "A well regulated Militia, being necessary to the security of a free State"; this phrase serves to provide a rationale for what follows. It doesn't instruct the government to do anything, it simply explains something the framers thought would help readers understand why the operative phrase to come says what it does.

Even so, let's look at it. Militia meant all able bodied males of a reasonable age, such that they could rationally be expected to fight. It does not mean "national guard", nor does it mean "army" or "state militia." If you doubt me, look it up. I'll wait.

Well regulated meant consistent, and in this specific phrase, it meant consistently armed. Laws on the books at that time went so far as to specify exactly what that meant; so many bullets, so much powder in a container suitable to keep it dry, etc.

The "security of a free state" means either to retain the state of being free, or it means to retain a political state, in which freedom is secure. I admit that I have no particular preference in the reading; they could have meant either one. They both seem to amount to the same thing to me.

So basically what they were saying here in modern English is that consistently armed fighting people are needed in order to retain freedom. Once we unveil the somewhat obfuscatory archaic English, it makes perfect sense. Of course such people would be needed.

Regardless, again, it's not an instruction to the government. It's just an explanation.

Now we come to the actual instruction, the operative phrase: "the right of the people to keep and bear Arms, shall not be infringed."

This is as clear today as when it was written. Infringed still means today what it meant then; The Oxford dictionary has it as:

act so as to limit or undermine (something); encroach on : his legal rights were being infringed | [ intrans. ] I wouldn't infringe on his privacy.

But surely you knew that. Infringe isn't an uncommon word. When I begin to infringe on your personal space, I'm too close. I'm just inside the edges. When I seriously infringe on your personal space, I'm probably way too close, perhaps touching you. If I'm not infringing on your space, I'm far enough away as to not affect your perception of your own space at all.

Keep and bear... I shouldn't have to explain this at all, though I'm perfectly happy to do so. Keep means... keep. To have around, nearby, handy, available, ready to access. I keep peanut butter in the cupboard. I can go get it any time, because I kept it; I didn't get rid of it or give it away. I can bear that peanut butter over to the table or bear it to my neighbor's house; she can bear a child; I can bear a burden; to bear means to carry. Both then, and now.

So what this is instructing the government to do (or rather, not do) is simple: They are not to, in any way, even a little, interfere with the people's right to own, hold, have arms; nor are they to interfere in any way with the people's right to carry them around.

So what does that mean in terms of modern gun laws? Well, for one thing, if they say you can't carry your gun for any reason, that's infringing on your right to carry. For another, if they say you can't keep a gun in your house, that's infringing on your right to keep. This clearly means that they cannot require you to have a "license" for a gun that has any material effect upon gun ownership or carrying such arms; because then they are saying that without such a license, you cannot keep or bear, and that's clearly infringing. So any such law is unauthorized, that is, the constitution forbids such laws.

Likewise, if they say you can't carry some particular weapon, that's infringing as well. The 2nd amendment specifies "arms." So we should at least take a look at what "arms" meant at the time.

In 1791 (when the bill of rights were ratified), "arms" included all manner of pistols, rifles, muskets, cannons, explosive and solid cannonballs, cannonballs filled with shards, frigates with multiple decks of cannon, wagons with explosives and multiple guns rigged to fire in unison, chain shot, flaming missiles soaked with pitch and other inflammable, easily spread and hard to extinguish compounds, swords, knives, bayonets, fighting canes, brass knuckles, battering rams, catapults, siege towers, glass bottles, garrotes, whips, chains, both fused and mechanically triggered explosives, striking weapons like sticks and poles and quarterstaffs and maces and war-hammers, spears, bows, axes, arrows and crossbows… I could go on for quite some time. All of these things were in common use in warfare and self-defense at the time. Yet, knowing all these things, all they put in the 2nd amendment was… "arms." So clearly, that's what they meant. Arms of any kind. They didn't say "muskets and pistols." They said arms.

Today, a few things have changed that make it clear that the 2nd amendment, while it has served us well for centuries, could use some updating. Nuclear weapons are arms; so are biological weapons. I can say with considerable confidence that most people, including myself, are not OK with the idea that John Doe down the street has a working nuke in his basement, or that Jane Doe down the other block has a nice warm batch of weaponized Anthrax baking in the oven. So if we take the 2nd at its word - arms of any kind - aren't we in trouble here?

Yes, indeed we are.

However - the authors of the constitution knew that over time, circumstances change, and that they would not be able to predict in what precise ways they might change. So they put in article V, Amendment.

This prescient section of the constitution provides the government with a legitimate method to change their own constituting authority in a manner that honors the wishes of the people they are supposed to be working for. Imagine that!

In this case, the obvious thing to do is to offer an amendment that modifies the 2nd to say "arms except those that incorporate biological, fissionable, fusionable, or ionizing radiation means of destruction, either direct or indirect."

Now ask yourself: Who in their right mind would object to such a modification of the 2nd amendment? Do you seriously think there would be any trouble at all getting a majority to go along with such a reasonable amendment? Of course not. The very idea is absurd. No sane person wants just any random other person to have power of that magnitude in their hands. No matter if they're far left, centric, far right, libertarian or of any other political and social persuasion.

Unfortunately the government has a long, dark history of just doing what it wants to, as opposed to what it has been authorized to do. That is why you don't see reasonable constitutional amendments. They've got the citizens accepting that the government should be able to rule out things like nukes arbitrarily even though the constitution forbids them to; because, after all, no sane person wants nukes. It sure seems reasonable on the surface.

But the fact is, if they can do one forbidden thing arbitrarily, no matter how well meaning it might be, they can also do anything else forbidden they want to arbitrarily as well, and there's no assurance at all that the underlying purpose or the actual implementation will be well-meaning. This is why we must hold them to the limits imposed by the constituting authority, and furthermore, why we must be be very careful about how we allow the constituting authority to be modified.

Now, as to the four justices who dissented:

The Washington law forbid any citizen of DC from keeping a pistol at home. We ask: Is this constitutional? Well, does forbidding someone to own a pistol infringe on their right to keep arms? Yes, it certainly does. Well then, there's your answer. This isn't rocket science. The command is that the government shall not infringe; in this case, they are infringing; therefore the law is unconstitutional. End of story.

Ergo, the judges who dissented are either traitors (presuming they have actually read the 2nd amendment and understood it) or incompetents (because it is their job to read and understand that amendment); either way, we need to not have them on the supreme court bench.

As to the five who contributed to the majority decision as written by Justice Antonin Scalia, although they did the right thing (by which I mean they struck down the DC law), they still don't understand why they're doing it. Scalia says that they did it because the constitution protects "the inherent right of self-defense", which is entirely beside the point (and not what the constitution says anyway); the law infringed - therefore, it was illegitimate. Period.

If you want to argue why the 2nd amendment is there, you should begin by studying the Declaration of the Independence and the writings of Thomas Jefferson. But again, those words aren't in the constitution. What is there is simple, clear, and specific. So there's really no need to argue, unless you're being intentionally disingenuous.

Scalia also said:

Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on [...] laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings

Which is completely wrong. Because such laws infringe on the right to carry. Those laws are no more legitimate than the one they just struck down, and for the same reason: The government is forbidden to infringe; if a law infringes, it's out of line. If they want to change this, they must amend. Without an amendment granting it, they have nowhere to go to obtain such authority.

As a side issue, the constitution directly addresses the federal congress, the federal government; so it might seem that we are only talking about federal authority. There is something else to consider, however, and that is the fourteenth amendment, which has been taken to mean that the entire bill of rights (amendments one through ten) apply to the state governments just as they do to the federal government. This means that states also cannot legitimately create such law. Beyond that, the rights fall to the people. So you can say that I cannot keep arms in, or carry arms in, your home or business. But you can't say I can't keep or carry them with regard to my own home or business, someone else's home or business, or out in public.

Now, very seriously, do not go confusing authority with power. Authority is what the government has (from the constitution) that allows it to use a very limited amount of power legitimately.

Power can also be used illegitimately, and that is precisely what we see when government agents infringe on our rights and trample our liberties. Always keep clear in your mind what authority is, and what power is. They are not at all the same thing. Your power, as a citizen, is very limited - I would not advise that you attempt to face down the government's use of power based on your (100% correct) understanding that they are not exercising power backed by legitimate authority. The government stooge's bullet that takes you down doesn't care about authority; it is the very manifestation of arbitrary, illegitimate power, and it will kill you 100% dead just the same, authority or not. At which point you are very little good to anyone, the questionable value of martyrs for a good cause notwithstanding.

So we know one very bad, unauthorized law has been struck down for the wrong reason. We should not be looking at this as an example of proper comportment of supreme court justices, examining an issue to see if it passes constitutional muster. Instead, we should take this as a warning that the entire bench is made up of people who don't regard the constitution as the over-riding authority, literally the constituting authority, for the entire federal government - despite the oath they swore to the contrary. And that, my friends, is nothing less than a wake-up call.

The problem is, as it has been for some time, is that modern Americans are deaf to such calls. This is why our society is literally crumbling around us with regard to our rights and liberties.

Al|1.4.10 @ 3:51PM|#

Ben,

You have some good thoughts to share, but this was way too long for a "comment" on someone else's blog.

When you have this much to share open up a page of your own an just offer a link to it.

e.g. http://historyhalf.com/academi.....amendment/

|11.18.08 @ 9:15AM|#

Whoa. Too long, Ben.

squarooticus|11.18.08 @ 9:22AM|#

Great post, Ben. You have put into words very eloquently my unease at the majority Heller decision, and at decisions not based on the plain reading of the Constitution in general.

I'll add that too much democracy guarantees these sorts of outcomes: democracy (from which the legislature derives its authority and to which the USSC generally defers) and constitutional government are mutually exclusive, but people have been conditioned by the establishment media and government schools to conflate the two.

testthewest|11.18.08 @ 9:32AM|#

I always wonder, why some people take a man made law book, be it the constitution or whatever, for god's law.
The constitution is old, from times without internet an many million pop. citys. It's from a time, where in some states who could not only own a gun but a slave as well.

You sould ask yourself:
How can it be, that so many countrys in the world, i.e. Britain, can stay free without
"A well regulated Militia".

It's the spirit of the people that live in these countries, not their personal weaponry.

Rimfax|1.7.10 @ 1:42PM|#

The Bill of Rights establish a right to bear arms. It established no right to enslave men.

It did enumerate just how those enslaved should be counted for representation purposes, without establishing any right to enslave or lack of rights against being enslaved. That is, slavery lacked any Constitutional backing from the outset, while self defense was enshrined in the Bill of Rights.

|11.18.08 @ 9:39AM|#

Britain is free? That will certainly come as good news to some of my friends on Nanny Island...

Lefiti|11.18.08 @ 9:41AM|#

Only you fucking libertarians would believe that owning a fucking gun is critical to the success of a modern fucking society.

|11.18.08 @ 9:42AM|#

the GOP believes that as well - as apparently does Obama.

|11.18.08 @ 9:55AM|#

Is it sensible to let everyone willy-nilly have all the guns they want? No it isn't. Will it lead to more people on balance being killed? Yes it will. Apparently that's all a bit too complicated for the Right to understand.

And looking over from the UK: before you start preaching about freedom, I suggest you attend to your failure to grant a fair trial in all cases, and your excuses for waterboarding (not "technically" torture, apparently). When you've fixed that, maybe we'll listen.

Rimfax|1.7.10 @ 1:31PM|#

This is provably wrong. In the US, even as gun laws are liberalizing (less gun control), violent crime stats are dropping. In countries with strong gun control, not so much.

Lefiti|11.18.08 @ 10:01AM|#

Only you libertarian whackjobs would believe that you'd have more to fear from your own government's jackbooted thugs than from Islamic terrorists. Douchebags...

Etaoin Shrdlu|1.8.10 @ 10:41AM|#

Only you fascists would believe that ice cream is intrinsically better than peanut butter.

(Hey, it makes as much sense as Lefiti's ravings.)

squarooticus|11.18.08 @ 10:11AM|#

Is it sensible to let everyone willy-nilly have all the guns they want? No it isn't. Will it lead to more people on balance being killed? Yes it will. Apparently that's all a bit too complicated for the Right to understand.

I can't tell you what the "Right" thinks, but I'll tell you what this anarchist thinks.

Keeping and bearing arms is a basic human right. The question of whether an increased proliferation of arms leads to more or fewer aggressive violence and homicides is entirely unsettled... but more importantly it's a utilitarian argument and therefore completely misses the point that keeping and bearing arms is a basic human right.

No one has the right to infringe your right to keep and bear arms for any reason. That's why it's a right and not a privilege. You have rights because you are human; you get privileges because government has decided to favor one group over another and enforce that inequality with coercion.

Here's a simple checklist for determining whether any behavior is a right or not:

(1) Does the exercise of the behavior infringe on anyone else's rights?

(2) Does the exercise of the behavior necessarily involve aggression against someone else?

If you answer "no" to both questions, it's a right. Keeping and bearing arms clearly does not violate anyone else's rights (i.e., how does owning or carrying a gun infringe on anyone else's rights? How does owning or carrying a gun necessarily involve aggression against someone else?), and therefore it is a right, regardless of what the Constitution says.

(The two questions are actually the same, but the first is a reflexive definition of rights, so I provide the second for those who can't fit their brains around the first.)

squarooticus|11.18.08 @ 10:18AM|#

I really need to proofread before posting. ;-)

|11.18.08 @ 10:35AM|#

a modern fucking society

When you write it like that, it sounds like a society dedicated to fucking. Sounds exciting, but not realistic.

Have you never seen Red Dawn or Dawn of the Dead (1978)? When the zombies/commies arrive I will be glad to be armed.

WOLVERINES!!!

|11.18.08 @ 11:17AM|#

Hey Tom,
As I undersand your post, more guns equal more death. WRONG. Japanese citizens can't have guns and Swiss citizens are required to keep military weapons. Both have similar murder rates. As for the UK, when the limited possesion of firearms you had was eliminated, home invasions and assaults by criminals with weaons went way up.

|11.18.08 @ 11:19AM|#

Ben1

It seems to me, you're suggesting a constitutional amendment, rather than a Supreme Court precedent, to better define the meaning of, or restrictions imposed on, The Second Amendment. It's very easy for reasonable people to agree; nuclear, biological, chemical, etc. should not be included in The Second Amendment. So, why can't Congress act on this? There are similar "reasonable" restrictions placed on The First Amendment. "Congress shall make no law". But they have, and will continue to. Amending the Constitution is a very long and involved process. Congressional leaders don't have the time. They seem to be spending most of their time shoring up campaign contributions for re-election. If Congress can't or won't act on these very basic needs of the people, then they have lost their effectiveness, and usefulness to this country.

|11.18.08 @ 11:20AM|#

Squarooticus,
I should have also. I didn't p when I should have.

|11.18.08 @ 11:46AM|#

Mr. Rational,

It depends upon which part of the population you're looking at. Right now, as we speak, anybody can pull up in an alley in N. Philly, put $50 in a sock, dropped from a second floor window, suspended from a string and receive, not a bag of heroin, but a piece of shit .22 cal. handgun. As a result, more children are being killed in crossfires, more teenagers are being killed for looking at someone's girlfriend, and more police officers are being shot at and killed. The illegal drug trade is expanding their operations to include POS handguns, which no legitimate gun owner would ever consider owning.

|11.18.08 @ 11:52AM|#

With regard to the boundaries of the 2nd Amendment, I suggest you read the rest of the Constitution. Particularly Article 1 Section 8 - what it says in part is ...

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;"

I appears to me that arms which are useful in achieving these ends (and can be "borne" - "keep and bear")are what are protected. This would be M-16s today, folks. If we want something other than that, then we have to amend the Constitution. You may or may not like the result, but the way to change things is NOT to legislate from the bench or to pass laws which clearly run contrary to the meaning of the Constitution.

If your read Miller correctly (and many get it wrong) you find that the disposition of the case by the Supreme Court was to send it back to trial court to find on the fact of whether or not the sawed off shotgun in question was a useful arm for the militia. If the arm in question was so found, then the 2nd Amendment prevented the government from infringing on the right to own one.

|11.18.08 @ 11:58AM|#

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;"

Doesn't that deal with the Armed Services, and not "private" militias?

|11.18.08 @ 12:00PM|#

My mistake. Ignore last post.

|11.18.08 @ 12:11PM|#

Mike, in a word - "no." Your knowledge of American history is deficient. As in very. As noted in Heller, the 2nd Amendment protects a right of the people, not a right of the government, btw.

For starters, read up on the Militia Act of 1792. Basically it placed all able bodied men ages 17-45 in the militia, ordered them to have guns and ammo, etc. That the founder's clearly intended widespread ownership of arms from this law passed in the early Republic is crystal clear. Their definition would not have included native Americans and blacks, to be sure, but the 13th Amendment fixed that error.

The current legal definition of the militia is effectively the same today (last updated in 1956) - see 10 USC 311. Let me repeat, this is current Federal law, effective now, so if you are an American citizen, able-bodied, and aged 17-45 you are currently a member of the militia of the United States. Like it or not.

|11.18.08 @ 12:14PM|#

Still too early to say that the 2A has been restored or saved.

The Heller opinion is just jam-packed with totally unnecessary verbiage that has no purpose other than laying the groundwork for the 2A to be eviscerated by later decisions. Reading it left me with a feeling of deep unease.

I think that the Court set up the 2A to become a shell amendment, honored only in the breach. Its pretty much their modus operandi in recent decades anyway.

|11.18.08 @ 12:22PM|#

RKV

Thank you I realized my error as I was reading Article 1 Sec. 8.

But please spare the right wing propaganda "legislating from the bench". This statement was meant to infuriate and motivate. The correct term is "stetting precedent", and is done in every court, every day in the entire judicial system.

|11.18.08 @ 12:22PM|#

Omit "t"

|11.18.08 @ 12:30PM|#

I was responding to Tom, who was commenting on the effect of more legal guns. This of course means law-abiding citizens. One thing anti-gun folks don't realize is that criminals will always have guns. If our country can't stop drugs or illegal aliens from entering, it cant stop piece-of-shit guns being imported for crime. The criminals in the UK have guns also, just not the citizens.

|11.18.08 @ 12:32PM|#

Mike, I'll be writing what I think, whether you agree or not.

|11.18.08 @ 12:49PM|#

RKV

Tell me then. Is setting precedent a legitimate function of the judicial system? Laws passed by Congress and state legislatures are, in many cases, vague at best. It is the primary function of the judicial to interpret these "vague" laws. Thus, setting precedent, "legislating from the bench".

It seems to me you're ready to throw out the entire judicial, while I seem to want to get rid of the legislature. What does that leave us? The Executive? The "enforcement" branch of the government. It seems to me, it's the "police state" we're living in, that is the problem.

|11.18.08 @ 1:12PM|#

Mr. Rational

But these guns are being sold and purchased legally, in large quantities. It's called a straw purchase (I'm sure you're familiar with that term). The secondary sale is illegal, but that initial, legal purchase still adds to the violence. That's the killer. These guns ARE being purchased legally. And many of these people buying these guns illegally may in fact be law abiding (in general).

If I had my way, I'd put a 12 gauge in every house that wants one. I have one in mine. But we can't keep allowing people to buy whatever types of guns, in whatever quantities, they want, without expecting the level of violence to increase.

Econ_Scott|11.18.08 @ 1:38PM|#

Lefiti

I take it you post online because you are too pussified to walk into a bar and ever say what you type.

Godwins Law and all.

If not, I'd be happy to meet you in a couple of cowboy bars, gay bars, lesbian bars, your mother's country club bar, whatever your preference, they all have an alley out back.

Since this was a commentary on the Law ... you may care to review the law on "fighting words".

And after all it is really only FEAR of the law, and it's consequences, that makes men RESPECT each other.

squarooticus|11.18.08 @ 1:48PM|#

But we can't keep allowing people to buy whatever types of guns, in whatever quantities, they want, without expecting the level of violence to increase.

You have to back this up with evidence. You can't simply assert this without proving it.

Nonetheless, you have to "keep allowing people to buy whatever types of guns, in whatever quantities, they want" because you don't have the authority to stop them: keeping and bearing arms is a right, and your advocating government-enforced violations of that right is being an accessory to tyranny.

Paul|11.18.08 @ 2:28PM|#

Whoa. Too long, Ben.

But it needed to be said. Well done, Ben.

I would also like to add that this isn't as complicated as anyone needs to make it out to be. There is a process for allowing the Federal government to delve into areas not enumerated therein. The constitution can be amended.

If the predictable cabaal is so concerned with unfettered right to bear "arms" (in the vein described by Ben) then an amendment to the constitution can be ratified by the several states, and we've got some reasonable, modern restrictions on a so-called unlimited right to keep and bear arms.

Paul|11.18.08 @ 2:30PM|#

Only you fucking libertarians would believe that owning a fucking gun is critical to the success of a modern fucking society.

No, we believe it's one of several things which is critical to the success of a modern fucking society.

For instance, someone like you believes that the only thing critical to a modern society is having us all sent to re-education camps for progressive values. Division of labor and all that modern thinking.

Night-night, lefiti. Someone needs a nappy-pooh.

Craig|11.18.08 @ 2:47PM|#

If Heller was a victory, we sure don't need any more defeats.....

Matt|11.18.08 @ 3:21PM|#

It's ironic to think that, if Ted Kennedy didn't like the decision in Heller, he has no one to blame but himself: Judge Bork has openly disagreed with what he calls "the NRA view" of the Second Amendment. Had Kennedy not scuttled Bork back in the 80's, the case probably would have been decided in favor of DC.

So much for "Robert Bork's America"...

Andy|11.18.08 @ 3:56PM|#

Laws are created by people, and can always change. I do understand the desire (or requirement) for societies to strictly follow the laws on the books, but generally before laws change there is a period of civil disobedience or or whatever you want to call it. If America moves more towards getting rid of guns, then it just will. Gun owners would need to find a new country (which as libertarians we already should have).

Meanwhile, no one wants to comment on the content of the article, that the NRA didn't support the Heller case? Color me surprised. Interesting article. If I want a debate about the 2nd Amendment, i'll find one.

Old Bull Lee|11.18.08 @ 4:24PM|#

I was actually curious to see what people would say about the NRA factor and was waiting for some comments about it, but go figure. But time to put up:

I'm a little disappointed, but I'll also cut NRA some slack when you consider we probably did come pretty close to losing. I mean, 5-4? That's kind of scary. If we would have lost, the NRA might be judged a little less harshly.

http://www.theonion.com/content/news_briefs/supreme_court_upholds_bill

ellipsis|11.18.08 @ 4:40PM|#

For those in the peanut gallery salivating about some new gun bans coming: get ready for disappointment. Americans love guns, and there's nothing Obama or anyone else can do about it.

Where'd all these new commenters come from anyway?

|11.18.08 @ 6:29PM|#

Americans love guns, and there's nothing Obama or anyone else can do about it.

Sure there is. They could pass a federal ban/limitation on concealed carry. They can outlaw a very wide range of weapons under the rubric of "reinstating the assault weapon ban."

That's just two. That are being discussed right now.

whamprod|11.18.08 @ 7:04PM|#

The author said,

"In the 21st century, the party no longer makes gun control a major issue."

My reply: "Bull corn."

Obama ran, partly on a promise of making new efforts at gun control. A new AWB bill has already been drawn up, waiting to go before the Congress, which would make the assault weapons ban permanent. He now has a strong majority in Congress, and has indicated through his past record on 2nd Amendment rights that he would willingly sign such a bill into law.

Do not fool yourselves into thinking that this a done deal; and do not think for one moment that you could accomplish any of this without the Republican party, which has done far more, over the years, to protect our 2nd Amendment rights than that, with all due respect, relatively small number of voters who call themselves "Libertarians."

I am glad that they join with Republicans in defending those rights, but it is not accurate to say that gun rights is a strictly libertarian deal, because it isn't. Anything less is revisionism.

Mr. Rational|11.18.08 @ 7:08PM|#

MikeM,
Sorry my reply is a bit delayed. You have completely missed my point and connection to reality. Criminals will always have guns. If the liberal fairy waved it's magic wand and made all american guns disappear, organized crime would ship boatloads of cheap chinese/east european guns into America within a month. The original poster, Tom, stated more guns more lead to more violence. Bullshit . Violent individuals already have guns or could get them, even with a ban. Legalizing guns for lawful purchases only puts more guns into the hands of law-abiding (not straw men)citizens.

|11.18.08 @ 8:53PM|#

Heller is mostly a victory, but the four who voted against it speak for all the idiots who want a powerful central government to take care of their needs. Their theory seems to be that government exists to take care of people and do amazing things. As long as smart people run it, everything will be fine. They never learned enough about history or human nature to know what terrible things the State can do to them.

(sigh)

This decision won't stand for long. People who believe the the State is the answer to their problems seem to be in the majority and their numbers are growing fast.

--------

By the way, happy Ammo Day (tomorrow): http://www.ammoday.com/

ellipsis|11.18.08 @ 9:22PM|#

R C Dean,

Well, my comments were directed at Tom, et al. European-style gun bans are not going to happen.

I suppose it's possible another AWB might be attempted. If the Dems love congressional defeat, then they're welcome to try it.

I don't think a fed CCW ban would be possible. There is 85 pro CCW House Dems in addition to the GOP allotment, which makes better than 2/3rds of the House against such things.

I realize that Obama is bad for guns in the aggregate, but he faces a decent amount of opposition. Plus he has all that economic, global warming, and health insurance stuff to get done first, which will probably completely occupy his first two years.

whamprod|11.18.08 @ 9:38PM|#

I would refer everyone to THIS INTERNET POSTING by attorney Charles L. Cotton, NRA board member, who was immediately privy to the behind the scenes goings on in the Heller case. He pretty thoroughly debunks the author.

Etaoin Shrdlu|1.8.10 @ 11:33AM|#

Mr. Cotton's extremely self-serving commentary is ridiculous on its face. For example, Mr. Cotton attacks Mr. Gura for many points that are entirely irrelevant to the Supreme Court's holdings, in particular Mr. Gura's oral arguments, which hold no legal weight in terms of setting precedent, something that any attorney should understand; the Justices' words in the decision are what matter, not what the attorneys say in front of the Court during arguments. Cotton also seems fixated on the notion that the NRA's legal research over the previous thirty years somehow meant that the NRA was the party that had swayed nationwide scholarly opinion in general and the minds of the current batch of Supreme Court Justices in particular.

His defense of the NRA's attempt to get the case mooted, by relaxing D.C.'s gun laws through legislation that the NRA pushed Orrin Hatch to introduce, likewise doesn't pass the laugh test. First Cotton writes that it would take years to get such legislation passed and so introducing the bill couldn't possibly have been an attempt to derail Heller, then Cotton claims that the bill was a backup in case Heller lost, then he claims that the NRA didn't push the bill because O'Connor left the court (implying that if the NRA had pushed it, it would have become law), and then he claims that the purpose of the bill was to change D.C. law after Heller succeeded.

Mr. Cotton likewise claims to have had inside information that O'Connor, if still on the Court, would most assuredly have ruled that the Second Amendment was a collective right, destroying the Second Amendment for generations to come. That's interesting, particularly in light of O'Connor's ruling in favor of Lopez in the 1995 U.S. v. Lopez case (a drug-dealing gang member who brought a handgun to school). Saaaaaay, didn't the NRA take a huge interest in the Lopez case back in the day? Great choice of plaintiffs, guys!

Perhaps the most striking point, however, is that even as Mr. Cotton foams at the mouth about the horrible, awful, stupid legal team that won Heller, Mr. Cotton's own wonderful, stupendous, intelligent legal team failed to show that their client in the Seegars case had standing, which is why the Seegars case got thrown out.

Throw in a hefty dose of Libertarian-bashing on Mr. Cotton's part, and it becomes pretty clear that the poor man has become completely unhinged at the thought that "the NRA team" didn't lead the way to victory.

|11.19.08 @ 12:09AM|#

hey lefiti - you can suck my 9mm.

hmmm, damn, that doesn't sound quite right.

Scott66|11.19.08 @ 12:13AM|#

"there's your answer. This isn't rocket science"

Pfftah, you clearly are not an intellectual.

Please get a copy of my upcoming book "How to get around the word no in 100,000 words or more. An intellectual's guide to constitutional interpretation in 21st Century USA."

|11.19.08 @ 8:04AM|#

Cotton is covering his ass (and the NRA's) and engaging in 20-20 hindsight. The "Inexperienced neophytes," the ones who "never once handled an appellate case" did just fine, and yes they needed some help, and got it in the form of the many briefs filed in support of Heller. The assertion that "It's a shame that most people will never realize that the NRA's Seegars case saved the Second Amendment and made the Heller decision possible." is pure speculation. Apparently Cotton and the other NRA attorneys could read minds - especially that of Sandra O'Connor (I think not). When he says "Gura's performance (in oral argument) was dismal" he is flat out lying. Sorry, but while the NRA does many good things, I'm going to believe Gura and Levy. Case not made Counselor Cotton.

|11.19.08 @ 10:00AM|#

I realize that Obama is bad for guns in the aggregate, but he faces a decent amount of opposition. Plus he has all that economic, global warming, and health insurance stuff to get done first, which will probably completely occupy his first two years.

If a Supreme Court justice in the Heller majority leaves the Court, then I'm sure the President-elect will find time to nominate a new justice. That new justice will almost surely vote to reverse.

Cotton is covering his ass (and the NRA's) and engaging in 20-20 hindsight.

Surely it's 20-20 hindsight to be so harsh on the NRA as well, though? After all, the decision was only 5-4. If you think it's so impossible for "Cotton and the other NRA attorneys could read minds - especially that of Sandra O'Connor," then surely it was difficult for the Heller attorneys to read the minds of the current SCOTUS, including the new justices Roberts and Alito.

The decision could have easily gone the other way. Lambasting the NRA's tactics so stridently is using 20-20 hindsight and thinking that the current Justices minds can be easily read yourself.

|11.19.08 @ 10:55AM|#

That new justice will almost surely vote to reverse.

There's no need to reverse Heller to pass just about anything short of an all-in ban on firearms. The opinion went out of its way to draw a road-map for sweeping gun control legislation. I have no doubt whatsoever that a renewed and even expanded assault weapons ban would easily pass muster with the Heller court, regardless of any new anti-gun justices.

|11.19.08 @ 10:57AM|#

I don't think a fed CCW ban would be possible.

Probably not, but I think some "salami slice" legislation imposing, say, minimum standards (For Teh Children, of course) on state CCW issuance could easily pass. Once you cross the threshold, its easy to ratchet them up over time.

James|11.19.08 @ 1:37PM|#

"too much democracy guarantees these sorts of outcomes: democracy (from which the legislature derives its authority and to which the USSC generally defers) and constitutional government are mutually exclusive"


Democracy is what created the Constitution and the Second Amendment in the first place.

One of the more troubling aspects of many variants of libertarianism is this hostility towards the founding ideas of America.

James|11.19.08 @ 1:41PM|#

"I am glad that they join with Republicans in defending those rights, but it is not accurate to say that gun rights is a strictly libertarian deal, because it isn't."


No kidding. Especially when the author actually cites John Ashcroft for his excellent pro-gun stance. I assume that Ashcroft is not being given honorary libertarian status.

Al|11.20.08 @ 3:37PM|#

James, you make a good point; railing against democracy and yowling about "the sheeple" are not effective methods to persuade society of the truth of one's position. Though, I hear a lot more of such talk on conservative talk radio. And the Constitutional Convention wasn't the most democratic act of the Founders. For that matter, if there'd been a plebiscite, we probably wouldn't have fought the Revolution.

FloppyFeet|11.20.08 @ 6:46PM|#

how many people don't know that-- the ACLU keeps attempting to usurp
this nation's soverieignty by attempting to claim we need to be
"ruled" over by the UN instead of governed BY THE PEOPLE, OF THE
PEOPLE AND FOR THE PEOPLE.

SEE for yourself how the COALITION TO FIGHT AGAINST THE ACLU bravely
attempted to forge ahead to protect our Nation while people blindly
aren't aware of the ACLU'S DISDAIN AND DISTASTE of everything that is
remotely connected to freedom and democracy and the USA SOVERIGNTY.

Mr. Obama or The Democrats don't care for our CONSTITUTION OR OUR SEAL OR FLAG OR
OUR PLEDGE OR our having the freedoms of speech, and right to lawful
bearing arms for our own defense. Coming from a man whom made his
lifetime of amicable associations "preferring" the communistic,
socialistic, marxists and terriorists circles.

It is important that we as a Nation find those lobby groups and those
groups which protect our freedoms and flag and seal and people don't
leave WASHINGTON DC alone until everyone of our USA WE THE PEOPLE
rights have been iron-clad protected lawfully and legislatively.

It's important that those whom seek to do violence do everyone a
favor take all that energy and do something productive seek out our
lobby groups get behind our groups to protect our freedoms legally
and legislatively because the violence that is directed at the
DEMOCRATS is only helping them want to claim that people don't need
to speak freely and should not be allowed to bear arms lawfully.

Violence is never the solution however legislatively and legally we
can make sure these groups like the ACLU WHOM SEEK TO infringe on the
very SOVERIGNTY of this USA DON'T get ahead

SEE for yourself how the COALITION TO FIGHT AGAINST THE ACLU bravely
attempted to forge ahead to protect our Nation while people blindly
aren't aware of the ACLU'S DISDAIN AND DISTASTE of everything that is
remotely connected to freedom and democracy and the USA SOVERIGNTY



What Americans need to investigate is how groups like these can endeavor to think they can count on Americans continuing to be stupid so that these groups and DEMOCRATS can further their communist/socialist/marxists agenda for America.


It should seem strange to most anyone that here we have a man with a lifetime of amicalble associations with terriorists finds it FAULTY that our constition grants us the right to lawfully and legally bear arms to protect ourselves.

WE THE PEOPLE of this great Nation need to make sure that LEGALLY AND LEGISLATIVELY we DON'T LEAVE WASH DC alone until everyone of our freedoms are iron clad protected.

Also, note that already our rights of FREE speech are being infringed upon because some places don't allow our posts because our POSTS are not PRO OBAMA. So we filed a complaint with the Justice dept for violation of our free speech.

Now we just found out that the COALITION TO FIGHT AGAINST THE ACLU site if they cannot find funding won't be around to protect WE THE PEOPLE or our gun freedoms or anything else anymore.



please feel free to refute rebuttal cut paste and print and just plain comment

|11.21.08 @ 6:58AM|#

ummmmmm, if the 2A is really a right of the people to own arms for protection at home ... how come new citizens for 80 years were required to take a "oath to bear arms" and if they refused, were denied citizenship?

Also, didn't Scalia write a few years ago that "there is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states."

Seems to me Heller is full of hot air.

Other Matt|11.21.08 @ 12:38PM|#

Barney-You're an idiot.

First-The only thing that really matters in what Scalia writes is what he writes as part of the decision.

Second-The 2nd isn't about the right of people to own arms in their home, the decision didn't speak to "bear", only "keep".

Third-Seems like the only thing full of hot air is your ass from someone blowing smoke up it.

Hugs.

|11.30.08 @ 11:11AM|#

The real issue isn't gun ownership. The real issue is; do we have a constitution that means something, or don't we? We know that the second amendment was written and passed in order to assure that the common voter would have easy legal access to military grade firearms. We know this because the debates over the bill of rights are unusually well documented for something that happened more than 200 years ago. Whether such easy access to military firearms is a good idea is beside the point; it is written into the Bill of Rights. If you have any respect for ANY PART of the Constitution or the Amendments, then to pass broad Gun Control laws, you must Amend the Constitution.

The Living Document argument is made by people who want to change what the Constitution means without playing by the rules. They want a political elite to have the authority to alter the meaning of our most basic laws according to political expedience and whim.

That is one hell of a lot more dangerous than any number of unregulated pistols.