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.

Comments

[Nick]

I don't know if I'd use the word "thrilling" to describe this situation.

[sage]

Nick, we'll know after they decide. It'll either be that or "heartbreaking."

[Episiarch]

Yeah, nothing is more tedious than lawyer-speak. Just let me know when the SCOTUS rules it as an individual right.

[Lou]

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.

[Cesar]

Lou-

The people are the militia, not the National Guard which didn't even exist when the Second Amendment was written.

[An adam]

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]

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.

[sage]

If guns cause crime then pencils cause misspelled words.

[Daze]

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.

[ed]

Here we go.

[Cesar]

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?

[Episiarch]

Daze, the Bill of Rights supersedes state's rights.

[mediageek]

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.

[Michael Pack]

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?

[J sub D]

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.

[mediageek]

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.

[Nick]

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.

[Cesar]

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.

[mediageek]

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.

[AnonCowHerd]

I suspect Lou is trolling, don't feed him.

[mediageek]

Anon-

Hence my response to him above.

[Brian Courts]

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.

[Isaac Bartram]

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?

[Dangerman]

Seriously, this is the best corn chowder I have had in years. Really. I wish you all could have some, it's that good.

[Brian Courts]

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]

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.

[John]

"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.

[Jose Ortega y Gasset]

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.

[Dangerman]

You have no idea.

[Isaac Bartram]

Good points, T and John. Perhaps I have a tendency to take things literally.

[Isaac Bartram]

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]

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 ?.

[Nick]

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.

[sixstring]

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]

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]

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.

[Brian Courts]

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.

[R C Dean]

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.

[Brian Courts]

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... 🙂

[An adam]

I'd like to hear more about the chowder, personally.

[Michael Pack]

R.C. Dean I've always seen the the BOR and the Constitution as a limit on the power of government.

[KD]

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... 😉

[Pro Libertate]

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]

"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".

[Nick]

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.

[Nick]

Who was the shitty lawyer that couldn't convince the SCOTUS to stop blanket protecting every little thing by misinterpretation?

[Zeb]

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]

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]

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.

[Nick]

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."

[John]

"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.

[Nick]

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.

[Brian Courts]

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]

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]

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]

Legally it would be. Morally is a different story.

What time was that coordination meeting for the revolution kickoff again?

[economist]

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.

[Kool]

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.)

[TrickyVic]

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.

[R C Dean]

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.

[juris imprudent]

...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]

"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.