Capitol Hill Blue Forums Political Issues Guns Supreme Court could take guns case

Hey, me too!

One little point on CS's last post:
>The ruling will come down against the Second Amendment's constitutionality

That isn't possible, because the 2nd Amendment is part of the Constitution. Of course the Supremes can interpret it to mean either of the two extremes (or anywhere in between), but they can't just decide to throw it out. That would require another amendment via the usual process.

I think the 2nd amendment has not been repealed simply because of it's ambiguity. If the Supreme Court does give us a clean, non-compromise interpretation either way, then I believe a new amendment will be immediately introduced. If they decide the 2nd only applies to state National Guard units, then the NRA et al will sponser a new amendment to protect individual's rights. If instead they decide it confirms individual's rights to own any type of weapon they like, then a wide variety of groups will endorse an amendment to repeal the existing 2nd amendment and replace it with something more restrictive.

But I bet the SC will try very hard to come up with some sort of compromise that preserves the status quo: They usually try to avoid breaking things.

Whimsical idea department:

1) They decide it guarantees individual's rights to own all personal arms in use in 1787, without government restriction. Everything invented after that year is subject to regulation.

2) They decide it does permit ownership of any type of personal weapon, but that governments are free to heavily regulate (or forbid) possession of ammunition.

Actually, I think that the NRA will avoid trying to get an Amendment passed, as it is too complicated and time consuming. I think they will do what they have done lately, and go State by State. Most State Constitutions have broader ownership language than the Second Amendment. How do you think that happened?

Good point. However, the SC essentially nullifying the 2nd amendment as it pertains to individual rights would tend to encourage all the gun-control groups to move forward in the seperate states. The argument that individuals have some constitutional right to own arms does have an effect on the viability of gun-control legislation. I know plenty of people who would prefer a gun-free society but respect the Constitution over their own desires.

Just supposition, but since the states (at least the original 13) were the "potter" to the Federal "pot", and the 2nd Amendment is a restriction against the federal government infringing on a pre-existing right -- and that the states were only ceding some of their powers and authority to the federal government they were creating, they sought to ensure certain particularly important Rights would continue to be recognized by their creation.
Yours,
Issodhos

has the right to ownership of guns defended the right of haebus corpus in the US?

or is the right to arms bearing there to merely defend the right to bear arms?

hmmm just thinking about it. it doesnt guarantee ownserhip, just he bearing of them.

semantic wrangling sorry

I have to note my agreement with the substance of your post, Issodhos, if I'm a little fuzzy on the formulation.

I take a middle view of the Second Amendment that is consistent both with the language and the historical record. The Second Amendment was, as I believe you posit, a recognition that the States have the obligation and right to maintain their own militias for homeland defense. Article I, Section 8 (clauses 15 and 16) gave certain authority from the States to the federal government to control and discipline the "Militia":
And Article II, Section 8 (clause 1) provides thatThere was, at the time, no expectation of a true standing federal army, but the central government had need of a body of trained men to address the needs of the new union. They therefore were dependent upon the States to supply those men at arms. The Second Amendment was, I believe, an effort from the States to retain some authority and control over their own militias - hence the opening clause "A well regulated Militia, being necessary to the security of a free State,..." It was the States that regulated their own militias, but it was Congress that set the standards. It was really more about States' rights than individual rights, although I do believe that it confers the right of individuals to keep and bear arms consistent with the States' need for properly equipped militias.

Because of this construction, the federal government has a restriction on how it can limit individual equippage, but the States do not, provided that they maintain their militias up to federal standards. That is why States can provide all kinds of limitations on individual possession and carriage of arms without running afoul of any constitutional prohibition, up to and including banning possession of firearms or restricting where they can be borne.

D.C. presents a special constitutional case, since it does not have the requirement to maintain and supply a militia (although it does indeed have one). There is a good argument, therefore, that the Second Amendment does not even apply to the citizens of D.C., as a federal enclave, even though the right it protects is an individual right. It is an individual right, however, of the citizens of the several States, subject entirely to the control of those very States. That historical and constitutional oddity could very well provide the Supreme Court (or at least a number of Justices) the ability to avoid the substance of the case and rule on the narrow issue of the unique status of D.C. residents, vis a vis the citizens of the States.

Interesting loophole. Would it only apply to DC residents, or to anybody in the DC? That could lead to some strange rules, like residents can not posess weapons but commuters from the more expensive (and whiter) Virginia and Maryland suburbs can!

Although I haven't considered all of the implications, I am pretty sure that it would apply to anyone actually in the District. This is consistent with the restriction on transportation of firearms between the States and the requirement that "carry" rules be abided by even my non-residents.

What I "posit", NW ponderer, is, I think, more straight forward. In adding the restriction of the 2nd Amendment to the Constitution, the states were making it clear that the federal government they were creating would have neither the power nor the authority to infringe on the right of the people to keep and bear arms.

If one wishes to read between the lines, one could also say that the states wanted this restriction against federal infringement in place because the states wanted to have available to them a pool of men comprising an unorganized militia who could be called into the organized militia if needed to defend against a tyrannical federal government or other nefarious villians -- and those best suited for such 'duty' would be those who privately owned and used firearms.

So, in practice, what the various states did when forming the 2nd Amendment and including it in the Constitution as a Right was to acknowledge that the right to keep and bear arms is a pre-existing Right that cannot be violated by the federal government nor even by the state governments who, as creators of the Constitution, had also to have recognized it as such by naming it so.
Yours,
Issodhos