D.C. Gun Ban Arguments

Jacob Sullum | March 18, 2008

Based on today's oral arguments in District of Columbia v. Heller, Reuters counts at least five votes for the individual-right interpretation of the Second Amendment and against the constitutionality of the D.C. gun ban:

A majority of the nine-member high court seemed to support the view that the Second Amendment of the U.S. Constitution protected an individual right to keep and bear arms, rather than a right tied to service in a state militia....

"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked Washington, D.C.,'s lawyer, Walter Dellinger, referring to a provision barring private possession of handguns.

Dellinger said the ban was only on the weapons that have been considered especially dangerous.

Justice Samuel Alito, who like Roberts was appointed by President George W. Bush, cited another provision requiring rifles or shotguns be kept unloaded and dissembled or bound by a trigger lock, and said it did not seem as if they could be used as such for the self-defense of one's home.

If Roberts and Alito are inclined to uphold the D.C. Circuit decision overturning the gun ban, that bodes well for defenders of the Second Amendment, since Clarence Thomas and Antonin Scalia presumably are as well. As for Anthony Kennedy, A.P. reports that he "said the Second Amendment gives 'a general right to bear arms.'"

Addendum: The Washington Post concurs with Reuters' assessment, saying, "A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia's handgun ban could be considered a reasonable restriction on that right." Both Reuters and the Post implicitly distinguish between believing the Second Amendment protects an individual right to arms and viewing the D.C. law as unconstitutional. But as I've said, the latter is required by the former, unless the Court is prepared to say the Second Amendment does not apply in the nation's capital (as Laurence Tribe has argued) or implausibly interpret D.C.'s law as permitting people to use long guns for self-defense, something its plain terms seem to rule out.

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|3.18.08 @ 5:20PM|#

I'm still scared. If the supreme court can allow one private owner to seize land from another with the government's blessing, if a student can be suspended for displaying a banner off of school grounds, if a cop can use a drug sniffing dog at every traffic stop...we should all be scared.

|3.18.08 @ 5:28PM|#

I'd be less scared if more people were worried.

|3.18.08 @ 5:30PM|#

Guys, if they find for collective right, that is basically confirming the status quo. We literally have nothing to loose.

Me, I'm hoping for strict scrutiny, and an M4.

Episiarch|3.18.08 @ 5:39PM|#

The Supremes are not made of stone and though they are supposed to be apolitical, they are human and aren't.

My thought is that we get an individual right, because they know that if they don't the outcry will be huge, probably dwarfing Kelo or McCain-Feingold. Especially if somebody is on the fence, their inclination will probably to lean to individual to avoid backlash. But they'll temper it somehow, to avoid too much backlash in the other direction.

We'll see.

|3.18.08 @ 5:42PM|#

People starting lining up to get into the gallery and watch the orals some 40 hours before they were scheduled to begin. You think the Supremes and their clerks didn't notice the people, the sleeping bags, and the pizza boxes out there?

The Wine Commonsewer|3.18.08 @ 5:50PM|#

Hope you guys are right.

I think it's a lot more than nothing to lose. If we lose this, it will definitely begin a flurry of further restrictions and outright bans on gun ownership.

|3.18.08 @ 5:53PM|#

A victory for D.C., or anything close to a victory, will provoke a huge turnout of conservative voters in the fall in support of John McCain, virtually underwriting a Republican victory.

The Supreme Court, as noted, is highly political. The justices will not want to tip the election in this way. So a muddy decision tilted somewhat in favor of gun rights is in the cards, written in as vague and limited a fashion as possible so as to satisfy the anti-gun animus of the liberal justices.

|3.18.08 @ 5:56PM|#

Fox news reporting Arthur Clarke, author of 2001 a Space Odyssey, dead at 90.

|3.18.08 @ 5:58PM|#

I believe the Justices are fully aware of the importance of their decision in what has to be one of the most significant cases to ever come before the Court. I'll take a 5-4 decision supporting an individual-right but to make a real statement I'd like to see a much stronger decision.

|3.18.08 @ 5:59PM|#

"I think it's a lot more than nothing to lose. If we lose this, it will definitely begin a flurry of further restrictions and outright bans on gun ownership."

I think if we lose this you'll see an NRA with 10 million members. And yes, I recognize that the NRA is far from perfect. But I think you get my point: a loss here could be the gun rights movement's Roe.

NoStar|3.18.08 @ 6:00PM|#

As for Anthony Kennedy, A.P. reports that he "said the Second Amendment gives 'a general right to bear arms.'"

That's just dandy,...if you are David Petraeus.

|3.18.08 @ 6:05PM|#

Mayor Daley in Chicago's gotta be about ready to shit himself.

Out their way, the only people who can carry handguns are:

1. Cops (inc. off-duty)
2. City officials
3. Judges

It might finally shake up a bit of the status quo there if the citizens are, you know, armed.

|3.18.08 @ 6:11PM|#

So when can we expect a ruling?

beetlejuice|3.18.08 @ 6:17PM|#

IIRC, the ruling is expected in June.

Geotpf|3.18.08 @ 6:37PM|#

I'm thinking they will go with the following ruling:

1. The state can permit "reasonable" gun control regulations.
2. Completely banning hand guns is not "reasonable".

It's nice and wishy washy, which the Court likes, and it has the side effect of not being ridiculous. They can't say "all laws banning or regulating arms are unconstitutional", or it would have to be legal to own a nuclear bomb or tank or rocket launcher or fighter jet. But saying that completely banning hand guns is constitutional means the second amendment is meaningless.

Of course, then every single gun control law in the nation will challenged as not being "reasonable", and different juristictions will uphold or strike down similiar laws in different parts of the country, meaning in five years or so, the Supremes will have to do this all over again.

|3.18.08 @ 6:40PM|#

a loss here could be the gun rights movement's Roe.

Wouldn't that mean that, for at least 35 years from now, all varieties of guns will be banned in all 50 states?

BakedPenguin|3.18.08 @ 6:42PM|#

Dellinger said the ban was only on the weapons that have been considered especially dangerous.

Namely, the ones that fire bullets...

|3.18.08 @ 6:44PM|#

Other Matt|3.18.08 @ 6:49PM|#

I wouldn't be surprised if the Court totally avoids the question of the 2nd as it applies to State laws. They could get away with saying that, since DC is ultimately governed by Congress, the question of incorporation against the states is not germane to this case.

Possible, but I think not. The reason is that they aren't stupid, and know the world is watching, and clearly (at least to the press) indicated some kind of predisposition. I don't believe they would have done that if they intended to be really muddy.

I think they'll find the outright ban on handguns unconstitutional, and be silent about much much more. This will then set up an attack on CA's ban on "assault weapons" or perhaps NJ's, as it's rather bizarre in application, which will then clarify the state application if there's any muddiness at all.

I do concur with the one comment about feeling better if more people were worried, though.

|3.18.08 @ 6:57PM|#

This one is for all the marbles. Many of us "gun nuts" are watching this closely, and will vote accordingly depending on the outcome.

LarryA|3.18.08 @ 7:07PM|#

Why do I have the feeling the D. C. City Council is already writing a replacement law?

I think if we lose this you'll see an NRA with 10 million members.

Pessimist.

I think they'll find the outright ban on handguns unconstitutional, and be silent about much more. This will then set up an attack on CA's ban on "assault weapons" or perhaps NJ's, as it's rather bizarre in application, which will then clarify the state application if there's any muddiness at all.

"Assault rifle" bans are a possible target. However, given a "civil rights" interpretation the obviously discriminatory results of the discretionary licensing schemes of the eight states that have them make for really low-hanging fruit.

This one is for all the marbles. Many of us "gun nuts" are watching this closely, and will vote accordingly depending on the outcome.

Unfortunately, that cuts both ways. A strong pro-gun ruling could convince lots of voters it's all over, so "screw McCain."

Then Obama could return the favor with a U.N. treaty. "Of course I believe in the Second Amendment. But unfortunately the rest of the world disagrees."

robc|3.18.08 @ 7:12PM|#

Are UN treaties only valid as long as you are a member of the UN?

Two birds, one stone.

|3.18.08 @ 7:13PM|#

"Fox news reporting Arthur Clarke, author of 2001 a Space Odyssey, dead at 90."

Was he shot to death?

|3.18.08 @ 7:19PM|#

Geotpf|3.18.08 @ 7:50PM|#

sage-They could punt, and rule that DC is not a state and therefore the Second Amendment doesn't apply or something else ridiculous. They've done it before. The ruling on "Under God" in the Pledge of Allegiance in regards to public schools was a total punt; they stated the non-custodial father didn't have sufficient standing to sue.

However, I agree that it's unlikely that they will do so in this case. I think they will make a vague "reasonableness" standard, striking down the total ban of handguns in DC but leaving room for significant restrictions on gun ownership.

Other Matt|3.18.08 @ 7:55PM|#

"Assault rifle" bans are a possible target. However, given a "civil rights" interpretation the obviously discriminatory results of the discretionary licensing schemes of the eight states that have them make for really low-hanging fruit.

Being a peasant in one of those particular state, I would hope so, but that's the "bear" part. As much as I would like it, I don't believe they would address the "bear", only the "keep", which is why I still feel the AWB stuff would be the first target.

A peripheral benefit is that the import ban could be attacked also, which might result in a lowering of costs for some of them too.

First Little Pig|3.18.08 @ 8:01PM|#

I live in a state that allows me to carry my gun on my hip.... I don't usually, but I have a neighbor that does... he and I were in the local grocery the other day and as we walked out he said "Isn't this a great country! I can shop for milk with a 45 at my side"

I pointed out that such places were vanishing across the country and that he better feel lucky.

"Damn right I do"

I think I should point out here that my small town has almost no violence and everyone is very very polite to everyone else.

Other Matt|3.18.08 @ 8:03PM|#

Hey, the MSI guys made the national news. Cool

|3.18.08 @ 8:08PM|#

I think people should be able to own guns for self defense (or hunting or whatever as long as its not harming others). I've always thought this.

But I do think that it is very, very sad that the vote will probably be this 5-4 thing where all the "conservatives" on the court vote for an individual right and all the "liberals" on the court vote against it.

I think its sad because there is nothing in the long train of conservative thought that makes one necessarily take the NRA's view of guns as the correct one (in fact, European and even much American conservatism certainly stressed a strong state in terms of law enforcement and domestic order as paramount and would probably have thought that government could surely squelch "gun rights" if it thought it kept good order.) And, I'm not sure there is anything inherently part of liberal thinking that means one has to be for gun control measures...

Even worse, surely our judges should not break down like this, voting along party lines (especially when those party lines seem to simply reflect the current arrangement of interest group alliances with certain parties). Face it, the 2nd Amendment is a very, very strangely worded sentence, and it's reasonable to read it either way. That people, and our SCOTUS judges, read it in such a simplistic fashion makes me feel very cynical...

|3.18.08 @ 8:14PM|#

Guys, if they find for collective right, that is basically confirming the status quo.

No, it's worse than that. It means that every other individual right in the bill of rights could be construed as a "collective right", and then we're even more screwed.

-jcr

|3.18.08 @ 8:26PM|#

"Face it, the 2nd Amendment is a very, very strangely worded sentence, and it's reasonable to read it either way."

It might be reasonable to read it either way, if SCOTUS and the lower courts had not already decided umpteen times over the last 200 years that Congress can preempt state militia law, just like it preempts state commerce laws, even to the point of abolishing the "state" militia. The 2A right cannot be conditional on membership in a statutory militia or the amendment would protect nothing at all from Congress. That discussion is barely mentioned in the transcript, but ought to define the debate.

|3.18.08 @ 8:48PM|#

It's sad, but not surprising, to hear Supreme Court Justices talking about a Constitutional Amendment "giving" us our rights, as if the government doles them out at its discretion.

The Constitution is nothing more than the rulebook for the government, and the Bill of Rights just an explicit list of restrictions on the power the people delegated to the government.

Our rights come not from the Constitution, but directly from the Creator, or from the simple fact of being human, if you're not the religious type. Whether or not a particular government acknowledges our rights or not has nothing to do with whether we have them, it only affects how difficult and risky it is for us to exercise those rights.

McBeelzebub|3.18.08 @ 8:55PM|#

Our rights come not from the Constitution, but directly from the Creator[...]

Why does that guy get all the credit? Ever think the libertarian in the Choir might have had something to do with that?

|3.18.08 @ 9:36PM|#

Cspan is playing oral arguments right now, and I think it's up on their website. I feel like a nerd for listening to this, but it's actually interesting.

|3.18.08 @ 9:41PM|#

Our rights come not from the Constitution, but directly from the Creator[...]

You are Kirk, The Creator?

Pottsy|3.18.08 @ 9:41PM|#

It's sad, but not surprising, to hear Supreme Court Justices talking about a Constitutional Amendment "giving" us our rights, as if the government doles them out at its discretion.

I was just telling a friend the other day how pissed I get when people mention the rights afforded to us by the Constitution, or that goddamn "Proud to be an American" song where they bless the soldiers who "gave those rights to me..."

Unbelievable sometimes that an American wouldn't understand the words natural rights.

|3.18.08 @ 10:01PM|#

Apropos of nothing, I stopped at the local gun shop today. They were completely out of .308, .223 and .45 ammo, low on 9mm and down to the ratty cheap surplus AK stuff.

robc|3.18.08 @ 10:04PM|#

MNG,

Stevens and Souter rarely vote along party lines. How many 7-2 decisions with Ginsberg and Breyer the losing side have there been?

TallDave|3.18.08 @ 10:14PM|#

Wait, wait, wait... let me get this straight:

You're saying there's a Constitutional Amendment that says we can have guns???

SIV|3.18.08 @ 10:33PM|#

I'm scared.

Not me, I'm window shopping
Always wanted one of those liquor store "loss prevention" tools as well.
Too much to hope for I'm sure.

|3.18.08 @ 10:51PM|#

I listened to most of this earlier. Roberts made it a point to question if the court really needs to declare a level of scrutiny in this case. IIRC, he basically said that what they need to decide on is the simple question of the constitutionality of the DC laws.

Based on that and everything else that my VERY un-law-educated ears heard, I think that:

1. There should be no problem getting a majority to agree that the outright ban on functional firearms in the home is unconstitutional. If it is simply this then some of the judges on the left might go along with the majority too.
2. There is less certainty about the handgun ban itself. If they are to declare this unconstitutional too, it is less likely that it will be more decisive than 5-4
3. It seems quite possible that there will be no real statement as to the level of scutiny that should be applied to gun laws. Roberts' statements lead me to believe that.
4. FOR A MAGAZINE CALLED REASON, ......**

**#4 is there purely to give me an excuse to take a sip of this Maker's Mark.

|3.18.08 @ 11:03PM|#

I'm still guardedly optimistic.

Still, I'd be curious to know if the line of questioning in, say, Raich or Kelo reflected the outcome of the case.

robc|3.18.08 @ 11:10PM|#

JLM,

Since a read your post do i *have* to pour another glass of Woodford? (My MM is all gone, for some strange reason)

|3.18.08 @ 11:11PM|#

Did God also create us with the right to trial by jury in matters exceeding $20? And the right not to house troops during peacetime?

I don't mean to mock, but surely not every sentence of the BoR refers to a God-given right. While the Founders were well aware of natural law ideas, they also inserted human-authored guarantees from English law that had proved conducive to protecting liberty. Now, the question of whether the 2A refers to a natural right or an arbitrarily-given right is a philosophically interesting one, but it really shouldn't affect this case.

|3.18.08 @ 11:13PM|#

This was Roberts' statement that I was referring to in my previous post. It is on page 44 of the linked document.

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

"CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?

"I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?"

Metal Messiah|3.18.08 @ 11:25PM|#

So, should the Supreme Court overturn the DC gun ban, can I assume that the usual gang of conservative idiots will start whining about "judicial activism" and "legislating from the bench?"

|3.18.08 @ 11:28PM|#

robc,

My advise to you is to drink it if'n ya'ont to, but ah aint gonna twist ya'arm. Cus that would be un-libertarian of me.

robc|3.18.08 @ 11:53PM|#

JLM,

No arm twisting was necessary, it seemed like a good idea.

Metal Messiah,

I dont think taking the constitution at its word qualifies as "judicial activism". That requires a penumbra.

|3.19.08 @ 1:17AM|#

I don't mean to mock, but surely not every sentence of the BoR refers to a God-given right. While the Founders were well aware of natural law ideas, they also inserted human-authored guarantees from English law that had proved conducive to protecting liberty. Now, the question of whether the 2A refers to a natural right or an arbitrarily-given right is a philosophically interesting one, but it really shouldn't affect this case.

You make a legtitmate point; not all "rights" are dispensed by God, some are dispensed by the community.

A subtle point that has probably been made above (I have not read every post) is that 2A does not grant a right to anybody, it emplaces a (total, in my opinion) restriction on government. The practical result of that restriction yields freedom to own and carry a weapon.

The Wine Commonsewer|3.19.08 @ 1:44AM|#

God given rights are the ones that men ain't supposed to screw with, dude.

Whether (took me four tries to spell that right) or not the guy with the BIG G on his pocket is real or a figment of the Catholics in my neighborhood is largely irrelevant.

We have the right, as beings, to own WTF ever we want so long as we don't, like, blow up our neighbor's house because his kids ride dirt bikes.

Barry|3.19.08 @ 2:27AM|#

I read the transcript of todays oral arguments and was somewhat encouraged SCOTUS will uphold an individual right, and the DC law unconstitutional.

JUSTICE KENNEDY: And so in effect the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms.

JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.

|3.19.08 @ 2:50AM|#

I read the transcript here:

http://www.nraila.org/heller/

It's 90 pages, beware

Gawd...when you read the words of the justices, I hate to say it but they appear to be mentally deficient.

The Volokh Conspiracy has a pretty good article by Ilya Somin.

http://volokh.com/posts/1205873795.shtml

|3.19.08 @ 3:05AM|#

Face it, the 2nd Amendment is a very, very strangely worded sentence, and it's reasonable to read it either way.

It may be possible to read it the wrong way, but I would argue that it is not reasonable.

The Tenth Amendment does not read...

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, except for the Second Amendment, where we referred to the people, but we really meant the States.

|3.19.08 @ 3:45AM|#

You are Kirk, The Creator?

That's the first mistake you've made, Nomad!
The second mistake is, you didn't detect the first mistake!.....

|3.19.08 @ 5:04AM|#

Holy cow, I agree with MikeP! He must be wrong.

|3.19.08 @ 6:48AM|#

GENERAL CLEMENT: Absolutely, Justice Ginsburg, and just -- I mean, to give you a clear example, we would take the position that the kind of plastic guns or guns that are specifically designed to evade metal detectors that are prohibited by Federal law are not "arms" within the meaning of the Second Amendment and are not protected at all.

What plastic guns is this idiot referring to?

|3.19.08 @ 6:57AM|#

MikeP
I grant it is less reasonable, but it's still pretty reasonable to read an amendment that basically as written says "Since a militia is very important the people can have arms" to mean "arms for service in the militia."

I hate it when one side, usually the natural law/rights side, thinks that their thinking is not just more reasonable or supported by more arguments but is naturally "correct." Bullshit says I.

Natural law is nonsense, and natural rights is nonsense on stilts...Or, to quote another eminent thinker:

"It is not enough for the knight of romance that you agree that his lady is a very nice girl - if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural law."

Guy Montag|3.19.08 @ 7:14AM|#

OT: Arthur C. Clark has died.

And he is riding a space elevator to heaven . . .

Guy Montag|3.19.08 @ 7:22AM|#

wayne,

I have not seen an example of the plastic guns they have been talking about, but the discussion on them erupted right after Glocks hit the USA market. First mention I remember is some cueless reporter saying (falsely) that a Glock could escape the detection of airport metal detectors.

Later there was some discussion of handguns made of strong plastics and ceramics (with ceramic bullets) that would be invisible to metal detectors and traditional x-ray equipment.

Not sure if they ever became a reality, but if they did they would probably be regulated like other highly restrected weapons, just as the text you quoted indicates.

|3.19.08 @ 7:48AM|#

The invisible gun crap is a figment of the movie Die Hard's imagination. They are strawmen.

|3.19.08 @ 8:15AM|#

Our rights come not from the Constitution, but directly from the Creator, or from the simple fact of being human, if you're not the religious type.

Why does the simple fact of being human grant rights that the simple fact of being a primate does not? And if it does, it would follow that an infant should enjoy the full complement of rights granted to an adult. Is that they way you see it?

Guy Montag|3.19.08 @ 8:53AM|#

Why does the simple fact of being human grant rights that the simple fact of being a primate does not?

Because we are better, smarter and the rulers of the planet. That is why.

The other primates are what's for dinner.

|3.19.08 @ 9:04AM|#

Because we are better, smarter and the rulers of the planet. That is why.

I guess you had to avoid the second half of the question, since a newborn infant, although human, is not smarter than an adult chimp.

Dr. Zaius|3.19.08 @ 9:09AM|#

M. Montag,

For now, for now.

Guy Montag|3.19.08 @ 9:09AM|#

But they will be and they have all of the rights of a human, you know, because they are human.

Should be the same with the unborn, but the law has decided to disagree with some of us.

|3.19.08 @ 9:12AM|#

The real question is, will they allow regulations against the gristle gun?

I read the 90-pages of oral arguments and the "plastic guns" are mentioned several times, but it is not made clear what they are talking about. I am aware of the "glocks are evil because they are plastic and undetectable" gibberish, and I am afraid that is what was meant in the oral arguments.

After reading it, I belive that two justices, Roberts and Scalia, are going to vote for an individual right. The other ones are not all clear to me.

The thing that struck me is how terribly unclear the whole oral debate is. It is often difficult to figure out what point, if any, anybody is making. I am sure it would be clearer to actually see and hear the discussion.

MikeP, I believe in "natural rights", but I also believe they need to be codified, else they are not worth the paper they are not written on.

|3.19.08 @ 9:14AM|#

"...I guess you had to avoid the second half of the question, since a newborn infant, although human, is not smarter than an adult chimp."

The answer is simple: newborn infants are human.

Guy Montag|3.19.08 @ 9:26AM|#

Priapus,

As long as they stick with animal parts and don't get into human cloning then it is fine by me :)

|3.19.08 @ 9:49AM|#

"The answer is simple: newborn infants are human."

So, presumably then, if we ever encounter intelligent aliens, you would find it reasonable to kill and eat them, because they are not human.

LarryA|3.19.08 @ 9:53AM|#

Did God also create us with the right to trial by jury in matters exceeding $20? And the right not to house troops during peacetime?

Yes.

I don't mean to mock, but surely not every sentence of the BoR refers to a God-given right. While the Founders were well aware of natural law ideas, they also inserted human-authored guarantees from English law that had proved conducive to protecting liberty.

According to the Declaration of Independence all people are "endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,"

The framers of the Bill of Rights took the general statement and wrote specific rules that would protect individual "Life, Liberty and the pursuit of Happiness." As you yourself said, "that had proved conducive to protecting liberty."

Now, the question of whether the 2A refers to a natural right or an arbitrarily-given right is a philosophically interesting one, but it really shouldn't affect this case.

The difference is whether the Justices rule that the Second Amendment is a right granted by government, which government can amend, or whether it's granted by our Creator (Whether you believe that to be God, Gaia, evolution, or Zeus) and government best not piss off said Creator.

still pretty reasonable to read an amendment that basically as written says "Since a militia is very important the people can have arms" to mean "arms for service in the militia."

Given the variety of rifles, pistols, and shotguns in the U.S. military inventory, and the fact that learning to shoot any firearm prepares one to use most of them, almost any non-fictional firearm would be included. Read the generals/admirals/command sergeants major's brief. Note also that your standard would protect most of all individual ownership of modern selective-fire infantry rifles, IOW "machineguns."

Guy Montag|3.19.08 @ 10:09AM|#

Spock,

Only if they look tastey.

If theyb look like Yvonne Craig as the green chick from a ST episode, then I have a whole different eatin' ritual in mind.

Guy Montag|3.19.08 @ 10:11AM|#

Note also that your standard would protect most of all individual ownership of modern selective-fire infantry rifles, IOW "machineguns."

I want one (or more)!

Any chance they will get rid of that stupid machinegun and suppressor tax?

robc|3.19.08 @ 10:14AM|#

Guy Montag,

The way the dollar is tanking, that machine gun tax will be neglible soon.

Guy Montag|3.19.08 @ 10:30AM|#

robc,

When the paperwork goes away I will be happier.

|3.19.08 @ 10:59AM|#

The ones Teddy Kennedy's gin-basted imagination feverishly invented, and then banned.

Also, don't forget that barrel shrouds should be banned. The shoulder thing, that goes up, is a threat to America's children.

Any chance they will get rid of that stupid machinegun and suppressor tax?

Not from the Heller case. And I submit that this is a good thing. While I consider it possible that the Supreme Court will come down on the side of individual rights, the scope of the case dealt strictly with whether or not the right to bear arms is an individual right, and if so, did Washington DC's ban on handguns violate that right.

Most people, up to and probably including most of the justices have an irrational fear of citizens owning fully-automatic firearms, and had Gura argued that full auto is covered by the 2nd Amendment, he'd have likely tanked the case.

Suffice it to say, even in the event of a ruling of an individual right from the Supreme Court, gun rights supporters will still have a lot of work to do.

|3.19.08 @ 11:13AM|#

I grant it is less reasonable, but it's still pretty reasonable to read an amendment that basically as written says "Since a militia is very important the people can have arms" to mean "arms for service in the militia."

I agree that it is reasonable to think that the "Arms" referred to are militial arms likely to be kept by individuals. As has been noted, that opens up the range of included weapons beyond home defense and hunting while excluding the usual suspects in reductio ad absurdum arguments such as tanks or nuclear weapons.

However, it is not reasonable to think that "the people" referred to are state militias -- just as it is not reasonable to think that "the people" referred to in the First Amendment are "the religious speaking press".

|3.19.08 @ 12:20PM|#

Any chance they will get rid of that stupid machinegun and suppressor tax?

The machinegun tax is already gone. See U.S. v. Rock Island Armory, where the district court ruled that the 1934 NFA was no longer operative given the 1986 FOPA. The U.S. opted not to take the case forward, presumably out of fear of expanding the precedent beyond the 6th Circuit. Of course the FOPA provisions are based on the commerce clause, and Raich allows for a "comprehensive scheme of regulation" thereunder - so we're screwed.

The Wine Commonsewer|3.19.08 @ 1:04PM|#

I guess you had to avoid the second half of the question, since a newborn infant, although human, is not smarter than an adult chimp.

Absolutely correct and neither of them can vote, get a driver license, buy beer, buy smokes, or own a gun.

|3.19.08 @ 1:54PM|#

I hate it when one side, usually the natural law/rights side, thinks that their thinking is not just more reasonable or supported by more arguments but is naturally "correct." Bullshit says I.

Natural law is nonsense, and natural rights is nonsense on stilts...

Incidentally, one's personal opinion on natural rights is actually quite irrelevant when trying to figure out what the Second Amendment means. What is important is that the people who wrote the Constitution believed in natural rights. Any attempt to derive its meaning must take that into account.

In other words, dismissing natural rights as "nonsense on stilts", when interpreting the Bill of Rights, is unreasonable.

|3.19.08 @ 1:59PM|#

I think that people are forgetting that some States that do allow guns in the home also state that if you shoot and kill anyone EVEN if on your property OR in your home YOU will be charged with MURDER....Think

The Wine Commonsewer|3.19.08 @ 2:02PM|#

Mike P, I see your point, but even if it is reasonable to read the 2nd Amendment as militia rather than individual, a mere cursory look at contemporaneous writings by the people who gave us a nation makes it quite clear what the intent was.

200 years of evolution of the language may make the clause a little difficult to read but the intent is obvious when you take into account, and this is just one example, what our first prez had to say about it:

Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour.

The Wine Commonsewer|3.19.08 @ 2:06PM|#

Mike P, I meant that I see the other guy's point and agree with yours. Sorry.

|3.19.08 @ 6:39PM|#

"However, it is not reasonable to think that "the people" referred to are state militias -- just as it is not reasonable to think that "the people" referred to in the First Amendment are "the religious speaking press"."

Sure it's reasonable, since the first amendment doesn't have this weird first part of a sentence like "since the press is very important, free speech should be protected."

|3.19.08 @ 7:39PM|#

Ah. So, because "the people" everywhere else it appears stands on its own to mean "the people", it is reasonable to read it in the Second Amendment to mean "the state militias" -- even though the Bill of Rights doesn't seem to have a problem elsewhere talking about "the States" when it means the states and "the people" when it means the people.

Am I getting close?

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