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Keeping Up With Heller
For those interested in the thrilling lead-up to the March 18 Supreme Court hearings in the important 2nd Amendment case Heller v. D.C. (challenging D.C.'s madly restrictive gun ownership laws), David Kopel over at the Volokh Conspiracy has been doing a great job linking and summarizing amici briefs as they are filed. Also, be sure to check in early and often at the dedicated "DC Gun Case" blog for all things Heller.
Episiarch|2.12.08 @ 1:56PM|#
Yeah, nothing is more tedious than lawyer-speak. Just let me know when the SCOTUS rules it as an individual right.
|2.12.08 @ 1:59PM|#
Just let me know when the SCOTUS rules it as an individual
right.
It is not an individual right, but the right to have a militia,
i.e. the national gaurd. In order to be safe, we need strong,
effective gun control laws to keep guns out of the hands of
criminals. If you are attacked, you should call the police, not use
a gun, which you are more likely to accidintaly die from than use
effectively.
|2.12.08 @ 2:03PM|#
Lou-
The people are the militia, not the National Guard which didn't
even exist when the Second Amendment was written.
An adam|2.12.08 @ 2:04PM|#
Right, Lou. Because criminals will certainly obey gun laws though not assault laws, not to mention wait politely whilst you call the po.
Common Sense|2.12.08 @ 2:06PM|#
It's certainly an individual right. Just because some citizens are too afraid of the responsibility that comes with gun ownership doesn't mean that the adults in the country have to give up their constitutional right.
|2.12.08 @ 2:07PM|#
Why doesn't "federalism" apply when libertarians talk about gun
rights? The "let states experiment with different approaches"
rhetoric goes out the window, and they root for the federal
government to impose a single national standard.
Just saying.
|2.12.08 @ 2:09PM|#
Daze-
Because one thing the state governments can't "experiment" with is
outright violating individual rights listed in the
Constitution.
Would you want you're state "experimenting" with what the First
Amendment means?
|2.12.08 @ 2:12PM|#
In amusing and quasi-related gun news, David Hardy at Of Arms and the Law
has outed the anti-gun Violence Policy Center's Josh Sugarmann as
one of only about a dozen Licensed
Gun Dealers in the DC area.
Perhaps Josh is hoping to hedge his bets in case the Supreme Court
rules in favor of gun rights in DC, and is hoping to cash in on
what must be a market chock full of pent up demand.
|2.12.08 @ 2:12PM|#
Daze,it doesn't apply because it is in the Bill of Rights.The states can't overturn protections for religion,speech,property and such.Is it your first day here?
|2.12.08 @ 2:14PM|#
Why doesn't "federalism" apply when libertarians talk about
gun rights? The "let states experiment with different approaches"
rhetoric goes out the window, and they root for the federal
government to impose a single national standard.
It doesn't apply to freedom of speech rights.
It doesn't apply to freedom of religion rights.
It doesn't apply to trial by a jury of your peers rights.
etc. etc. etc.
Damn that was a stupid question.
|2.12.08 @ 2:17PM|#
It is not an individual right, but the right to have a militia, i.e. the national gaurd.
Hi.
Welcome to the gun control debate circa 1993. Perhaps you'd like to
do some open-minded inquiry into the current state of the debate
before posting things that make you look, well, kind of
dumb.
|2.12.08 @ 2:18PM|#
Actually guys, the First Amendment only protects people from
Congress making laws with regard to those rights. The Second
Amendment however cannot be infringed by anyone. Read them both and
you'll see what I mean.
If a state wants an official theocracy, they may have it,
technically. They may not, however infringe upon anyone's right to
bear arms. Ironically, our states honor the First and infringe upon
the Second all the time.
|2.12.08 @ 2:18PM|#
Doesn't the 14th Amendment extend all the protections of the
Bill of Rights to the states though?
Anyway, this is moot because DC is essentially a Federal Territory,
ruled directly by Congress.
|2.12.08 @ 2:21PM|#
You, too, can now go to the BATFE's online FFL EZ Check website
and look up gun prohibitionist Josh Sugarmann's license to sell
firearms.
At the above link, enter the following:
1-54-XXX-XX-XX-00725
I wonder: is VPC's headquarters zoned for a commercial retail
establishment?
If not, that may very well put them in violation of BATFE
regulations.
|2.12.08 @ 2:26PM|#
Why doesn't "federalism" apply when libertarians talk about
gun rights? The "let states experiment with different approaches"
rhetoric goes out the window, and they root for the federal
government to impose a single national standard.
Federalism, to the extent it is explicitly invoked, is merely a
practical approach for most libertarians, not a philosophy one
holds in-and-of itself. Libertarians are predominantly (obviously)
concerned with freedom. In other words, you shouldn't expect a
libertarian to support a state's right to infringe a particular
freedom simply because it is the state government, and not
Washington, doing the infringing.
|2.12.08 @ 2:27PM|#
You know, I keep hearing that banners want to amend the
Constitution to get rid of the 2Admndmnt.
But wouldn't the Bill to make the amendment in itself infringe the
right to keep and bear arms?
I'm serious. I think a reasonable interpretation of the Bill of
Rights would lead anyone to cinclude they cannot be ammended in the
same way as the procedural matters in the body of the Constitution
can be.
Has anyone else given any thought to this?
Can Congress take away rights that have been declared to be pretty
much fundamental and inalienable?
|2.12.08 @ 2:29PM|#
Seriously, this is the best corn chowder I have had in years. Really. I wish you all could have some, it's that good.
|2.12.08 @ 2:32PM|#
Actually guys, the First Amendment only protects people from
Congress making laws with regard to those rights. The Second
Amendment however cannot be infringed by anyone. Read them both and
you'll see what I mean.
If a state wants an official theocracy, they may have it,
technically. They may not, however infringe upon anyone's right to
bear arms. Ironically, our states honor the First and infringe upon
the Second all the time.
No it can't. Cesar essentially addresses the question above with
his question
Doesn't the 14th Amendment extend all the protections of the
Bill of Rights to the states though?
The 14th Amendment has been used by the Supreme Court to apply most
of the Bill of Rights to the states. It's called incorporation and,
in the Court's nature to only address specific cases before it, it
has been done on an amendment by amendment (actually a a
right-by-right) basis, rather than simply a single statement
applying the Bill of Rights in its entirety.
T|2.12.08 @ 2:33PM|#
Can Congress take away rights that have been declared to be
pretty much fundamental and inalienable?
It hasn't stopped them until now.
/sarcasm
Sure, because it still has to be ratified by the people through the
states. We could all decide that everybody should just STFU and
repeal the 1st Amendment. From a procedural and legal standpoint,
it's A-OK. From a philosophical standpoint, it'd be utterly
abhorrent.
|2.12.08 @ 2:35PM|#
"I'm serious. I think a reasonable interpretation of the Bill of
Rights would lead anyone to cinclude they cannot be ammended in the
same way as the procedural matters in the body of the Constitution
can be."
I don't think so. I think the idea that "all non-enumerated rights
rest within the people" or whatever it says would preclude that.
The people have all rights not mentioned in the Constitution
including the right to throw it out and write a new one if they
like. Also, the Constitution explicitly gives the States the right
to hold a Constitutional Convention and redo the whole thing. I
don't think there is any limit on how the Constitution can be
modified as long as it follows the proper process. Ultimately, the
founders left it up to us to protect our freedom.
|2.12.08 @ 2:35PM|#
It would be nice if people would simply realize that Prohibition on guns works about as well as Prohibition on drugs or pretty much everything else people want. Of course, a bowl of corn chowder would be nice, too.
|2.12.08 @ 2:42PM|#
And having reread my post, I realize that I should spend my time learning to spell instead of pondering the finer points of the COTUS.
Lou|2.12.08 @ 2:44PM|#
It would be nice if people would simply realize that
Prohibition on guns works about as well as Prohibition on drugs or
pretty much everything else people want.
Perhaps, but it is a fight that must be fought nonetheless because
it is right and it sends the right message to America's Children
®.
|2.12.08 @ 2:46PM|#
Wow, I just read the 14th Amendment and I don't see in the text
of it how they could have used it to mean the First Amendment
extends to all states.
Not that I think there is anything wrong with states having the
same rights the First Amendment grants, I just don't see how the
14th applies at all.
|2.12.08 @ 2:47PM|#
I realize that I should spend my time learning to spell
instead of pondering the finer points of the COTUS.
I prefer the finer points of COITUS.
T|2.12.08 @ 2:48PM|#
Perhaps, but it is a fight that must be fought nonetheless
because it is right and it sends the right message to America's
Children ®.
Too true. It lets all thinking children realize just how ridiculous
the government is.
T|2.12.08 @ 2:51PM|#
Nick,
No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States
Apparently the Bill of Rights is a privilege of being a US
citizen.
|2.12.08 @ 3:01PM|#
I'm serious. I think a reasonable interpretation of the Bill
of Rights would lead anyone to cinclude they cannot be ammended in
the same way as the procedural matters in the body of the
Constitution can be.
Has anyone else given any thought to this?
Isaac, as others said, I don't think most legal scholars would find
that there is anything different about amending the Bill of Rights
compared with any other section. But you do raise a question that
has been given a lot of thought - to what extent can a constitution
prohibit certain types of amendments? It is called an
entrenchment clause. An example is Article Five of the US
Constitution laying out the process for amending it which says in
part:
no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
This clause explicitly bars any amendment that would attempt to give bigger states more votes in the Senate. But, can you amend the Constitution to remove this clause and then amend it to change the Senate's composition?
Also, what happens if you amend the Constitution with an amendment that says, about itself, that the amendment can never be repealed? Is that binding? This would seem to create something of a self-referential paradox.
|2.12.08 @ 3:01PM|#
No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States.
Actually, I always thought the BOR was a list of immunities - as a
citizen, you are immune from state attempts to control your speech,
religion, or firepower.
|2.12.08 @ 3:02PM|#
Damn, forgot to close that tag after the one-line Constitutional quote above, but I think it's clear which part is from the Constitution and which isn't... :)
|2.12.08 @ 3:19PM|#
R.C. Dean I've always seen the the BOR and the Constitution as a limit on the power of government.
|2.12.08 @ 3:22PM|#
sixstring | February 12, 2008, 2:47pm | #
I realize that I should spend my time learning to spell instead of pondering the finer points of the COTUS.
I prefer the finer points of COITUS.
... this too is about spelling... ;-)
|2.12.08 @ 3:22PM|#
Well, conceptually speaking, there is the idea of fundamental, inalienable rights that is central to our political system. Although the Constitution could be legally revised to limit or do away with such rights, it would be hard to argue that the resulting government would remain legitimate.
Zeb|2.12.08 @ 3:25PM|#
"Also, what happens if you amend the Constitution with an
amendment that says, about itself, that the amendment can never be
repealed? Is that binding? This would seem to create something of a
self-referential paradox."
Man, I wish we had some people in government with enough sense of
humor to work up an amendment that just says "this amendment cannot
be repealed".
|2.12.08 @ 3:26PM|#
But the First only says Congress (federal) shall make no
law...
It doesn't actually say your right to freedom of speech or religion
or the press shall not be infringed, like the Second says about
your right to bear arms. I understand how the Fucking Supreme Court
needs to go to the Derrick Zoolander School for Kids Who Can't Read
Good, but damn.
The First is not a privilege, it's a limit on Congress.
|2.12.08 @ 3:28PM|#
Who was the shitty lawyer that couldn't convince the SCOTUS to stop blanket protecting every little thing by misinterpretation?
Zeb|2.12.08 @ 3:31PM|#
The questions I always have about the second ammendment is, why
the hell couldn't they write it more clearly? The whole "well
regulated militia" part seems kind of detached from the "right to
bear arms" part. It is also almost sort of phrased like a
conditional statement, which is weird. Seems like they should have
just dropped the militia part as it seems pretty clear that they
were for individuals' right to have guns.
Fortunately (unless I leave the state) I have a much more solid
protection of my right. From the New Hampshire constitution:
"All persons have the right to keep and bear arms in defense of
themselves, their families, their property and the state."
Pretty clear, I think.
Other Matt|2.12.08 @ 3:39PM|#
Dammit, we really need to do something with these corrupt MD
AG's. Warnings to everyone, beware the Teflon Leprechaun (O'Malley
for those who don't know the term)on a national stage. He lies
worse than joe.
The whole "well regulated militia" part seems kind of detached
from the "right to bear arms" part.
Only if you assume "regulated" means "controlled". If you use it in
a historical sense, it reads more like "A well mannered militia",
which compliments the general populace, reinforcing the belief in
them as worthy of bearing arms.
robc|2.12.08 @ 3:46PM|#
Zeb,
My protection (from the KY constitution):
All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:
...
Seventh: The right to bear arms in defense of themselves and of the
State, subject to the power of the General Assembly to enact laws
to prevent persons from carrying concealed weapons.
|2.12.08 @ 3:47PM|#
Or that "well-regulated" meant "enough ammunition to be
effective against all threats," which was the intention if you read
what was written by founders such as Madison. In other words,
"don't bother forming a militia if you are unprepared."
It certainly never meant "controlled by government."
|2.12.08 @ 3:49PM|#
"Although the Constitution could be legally revised to limit or
do away with such rights, it would be hard to argue that the
resulting government would remain legitimate."
Legally it would be. Morally is a different story.
|2.12.08 @ 3:49PM|#
Well, it seems like Kentucky goes against the U.S. Constitution in the concealment law while NH does not. Actually, by having no laws regarding the subject I guess VT and AK are the only ones that are really correct.
|2.12.08 @ 3:54PM|#
No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States.
Actually, incorporation has been based on the Due Process Clause of
the 14th Amendment, not the P&I Clause which has been largely
ignored if not treated as meaningless. Interesting because the
P&I Clause seems more suited to the task and more likely to
have been included for just that reason - to insure that states had
to respect the fundamental rights of its citizens (without spelling
out exactly what those fundamental rights were). Lots of debate
about the P&I (and the Due Process) clause of course but there
was obviously a desire at the time of its drafting to offer
protection of fundamental rights of state citizens from state
legislatures. It seems hard to imagine how those fundamental rights
would not include speech, religion, press, etc.
Zeb|2.12.08 @ 3:55PM|#
NH requires a permit for concealed carry, but they have to give it to you unless they have a damn good reason not to. And the courts have ruled that the reason for denying a permit does have to be pretty strong.
Brett|2.12.08 @ 3:57PM|#
Anyway, this is moot because DC is essentially a Federal
Territory, ruled directly by Congress.
As Kopel states, the DC brief will make this argument also. It will
be interesting to see if SCOTUS rules on this, the individual
right, or both.
Other Matt|2.12.08 @ 4:01PM|#
Legally it would be. Morally is a different
story.
What time was that coordination meeting for the revolution kickoff
again?
economist|2.12.08 @ 4:12PM|#
Whether or not the second amendment specifically guarantees an individual right is moot, because there is a natural individual right to self-defense, which includes obtaining the means to defend oneself.
|2.12.08 @ 4:34PM|#
Other Matt,
Saturday, noon, my house.
Punch and Pie.
--Kool
(Full Disclosure: Bob Levy is a personal friend of my family and
used to train for marathons with my dad.)
|2.12.08 @ 4:41PM|#
economist, government has the ability to alienate you from your
rights, right or wrong. Any right given by God can be taken away by
man. God will not testify on your behalf. Therefore, all rights
must be written into law if you have any real expectation of
exercising them.
Granted, I would prefer a government that knows its limits and is
willing to let me enjoy my rights. Even our founding fathers knew
that was a pipe dream.
|2.12.08 @ 4:59PM|#
R.C. Dean I've always seen the the BOR and the Constitution
as a limit on the power of government.
Terribly old-fashioned of you, Michael. That kind of thinking went
out of fashion under FDR.
|2.12.08 @ 7:54PM|#
...and it sends the right message to America's Children
®.
Lou, Lou, Lou-eeeeee, Lou-iiiiiiiiii. But I digress.
You will NEVER catch a fish splashing an 8/0 hook with a little
tinsel wound about the shank. Not even the stupid ones. You need
more finesse in your cast, better presentation, and then let the
current do the rest of the work. Sheesh, rookies.
Doug Beatty|2.23.08 @ 4:18PM|#
"It is not an individual right, but the right to have a militia,
i.e. the national gaurd. In order to be safe, we need strong,
effective gun control laws to keep guns out of the hands of
criminals. If you are attacked, you should call the police, not use
a gun, which you are more likely to accidintaly die from than use
effectively."
Wrong all around my friend. Gun control laws only increase crime
because criminals do not obey them. Law abiding citizens do and
they make better victims unarmed. Crime statistics comparing
liberal gun laws and strict gun control laws bear this seemingly
obvious truth.
The police have no duty to protect you. You should certainly report
crimes but stopping the attack is your legal responsibility not
that of the police. This is well settled in the courts.
The myth about having a gun placing you in danger during an attack
is also well refuted. Although it may seem an obvious point, recent
comprehensive research has confirmed that criminals tend to avoid
raping, robbing and attacking victims they believe to be
armed.
About one percent of defensive gun uses by ordinary citizens result
in the gun being taken away.
Persons like yourself are responsible for 100% of victim
disarmament laws and gun free zones that encourage murder and
deprivations against peaceable citizens.
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