The 2nd Amendment issue is going to come to a head in the next few years

Discussion in 'Politics and News' started by Specop 007, Mar 9, 2007.

  1. Specop 007

    Specop 007 Diamond Member

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    Wow. The stage it really getting set for a very ugly showdown over the 2nd Amendment issue. Whats so interesting about it is the fact that right now we have legislation taking place to go either way. Some bills call for national conceal carry. Others call for rifle bans. The 9th Circuit has already ruled the 2nd is a collective right while now the 5th ruesl its an individual right.

    Things are coming to a head I think, that will set the stage for many many years to come. And hopefully, the results will uphold the Constitution without having to fire a shot.


    Click

    BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link.
    According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

    To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
    The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."
    Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

    Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

    This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

     
  2. OutHouse

    OutHouse Lifer

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    interesting.

    BTW, i submitted my paperwork for a CC permit yesterday.
     
  3. dmcowen674

    dmcowen674 No Lifer

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    They will outlaw guns, can't have a citizenry that can rise up against a oppresive overtaxation Government.
     
  4. Genx87

    Genx87 Lifer

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    What is interesting about the the dissenters view is if her view was the majorities. She basically tossed out the entire bill of rights for DC because it isnt considered a state.
     
  5. Specop 007

    Specop 007 Diamond Member

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    Right. And it shows the argument supporting the 2nd was so watertight the ONLY ground to stand on in opposition is that DC isnt a state.

    The full document can be read here. While quite long, the ruling was so well laid out it addresses virtually any avenue to overturn it. This is a MAJOR win for our side. Theres still a long ways to go.
     
  6. dphantom

    dphantom Diamond Member

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    Outstanding decision. :thumbsup:

    No doubt it will be appealed but certainly a big win for individual rights.
     
  7. eilute

    eilute Senior member

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    The Second Amendment reads:
    One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
     
  8. dmcowen674

    dmcowen674 No Lifer

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    People only = State? :confused:

    Read Mein Kempf much?
     
  9. PingSpike

    PingSpike Lifer

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    To me at least, the militia is defined here as the primary reason for the right, whereas the rest of the sentance places no restrictions on that right nor does it define only a narrow group of the people as those who possess this right. It does not say "the right of the People's militia" it just says the people. It it simply states, "shall not be infringed" with no exceptions given.
     
  10. dphantom

    dphantom Diamond Member

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    If you read the Federalist papers, you will see the discussion focused on the individual, not hte state as the Court wrote in its opinion. Reading that line in the Constitution does not give the State rights, it guarantees teh People's rights - that is the individuals.
     
  11. Tab

    Tab Lifer

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    I think the courts have consistantly ruled that the 2nd amendment is a collective right and not an indiviual one; atleast until now. I am pretty sure that US vs. Miller was the big deciding case on this issuse.
     
  12. OutHouse

    OutHouse Lifer

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    :thumbsup:
     
  13. LegendKiller

    LegendKiller Lifer

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    if one were to apply the historical context of the Constitution you would determine that militias were not comprised of professional soldiery, nor did they have state issued arms. the national guard would be analgous, at least it would have been before they were trated as nothing more than regulars.

    I am of the opinion that the fundamental right was inserted to protect the citizens not only from external threats but also internal, especially the government. if the citizenry were deviod of arms they would have no recourse against a despotic government. the very founding of this country was based on the premise of defening ones own rights from a despot, through arms.

    to define the second as anything but the above is to completely ignore not only this countrys history, but also historical events that have shown that a disarmed and thus non-threatening popation is easily ruled.

     
  14. Whoozyerdaddy

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    The first part is their reasoning for the second. And the second part of that sentence is very clear.

    "the Right of the People to keep and bear Arms, shall not be infringed."

     
  15. BaliBabyDoc

    BaliBabyDoc Lifer

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    As opposed to Congress' selective throwing out of rights b/c it isn't considered a state?
     
  16. 2Xtreme21

    2Xtreme21 Diamond Member

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    Gun rights... the only right a man needs to have.
     
  17. Jaskalas

    Jaskalas Lifer

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    With it we can ensure all other rights.

    Of course, for any criminal the baning of a gun means nothing. We already have military style shipments traveling across our border for the gangs.
     
  18. 2Xtreme21

    2Xtreme21 Diamond Member

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    Sorry you need to put that much faith in a device used to kill another person.

     
  19. Kwaipie

    Kwaipie Golden Member

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    Shame our militias are in Iraq and Afghanistan instead of protecting our borders.
     
  20. Fern

    Fern Elite Member <br> Super Moderator
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    Yeah, WTH is she talking about?

    BTW: The 9th curcuit is loony. IIRC the SCOTUS overturns more of their stuff than any other (maybe all others combined).

    Fern
     
  21. imported_Shivetya

    imported_Shivetya Platinum Member

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    stop that!

    Great, whats the world coming too when I agree with Dave?


    The 2nd Amendment is the last right they will take from us before Freedom of Speech goes.


     
  22. tcsenter

    tcsenter Lifer

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    Or the Supreme Court and constitution itself? D.C. has been treated differently from states in several respects since it became the federal seat (maybe longer). This is why DC has its own federal court (can't remember if its a district, circuit, or appeals court).
    Probably because every pre-eminent constitutional scholar, commentator, and court before the 20th century rejected the 'states and their militias' reading, and even then did it not gain acceptance until 20th century efforts to expand regulations or ordinances previously aimed at disarming blacks, indians, and other minorities (because, you know, those who wouldn't be born for at least 150 years after the constitution was ratified surely knew more about the intent of the framers than those who lived at the same time as the framers and actually knew some of them professionally or personally):

    From General Principles of Constitutional Law (1880), Justice Thomas Cooley, Section IV. -- The Right to Keep and Bear Arms.

    The Constitution. -- By the Second Amendment to the Constitution it is declared that, "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."

    It may be supposed from the phraseology of [the Second Amendment] that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check.

    The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.
     
  23. Fern

    Fern Elite Member <br> Super Moderator
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    So in your opinion it was necessary to add into the Constitution that militia/soldiers had a right to bear arms while in service. That being necessary because in the absence of the 2nd amendment our armies/militia would be composed of unarmed men?

    Huh?

    Fern
     
  24. adairusmc

    adairusmc Diamond Member

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    Outstanding news.
     
  25. tcsenter

    tcsenter Lifer

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    And if you think that's something, check out U.S. v. ROCK ISLAND ARMORY, INC. (1991), where the US District Court for Central Illinois dismissed indictments against defendants for violating statutes prohibiting the possession of unregistered machine guns manufactured after the sunset date of May 19, 1986, on the basis that the federal government had no authority to ban the possession of machine guns, and rendered the NFA as modified by contemporary statute unconstitutional.

    This ruling still stands as prevailing law in that district (forty-six Illinois counties) because the government chose not to appeal the decision (knowing it would lose):