Category: 2nd Amendment

Philadelphia local NPR station hosted an hour long discussion on the second amendment on their show “Radio Times”.  Enter December the 20th, 2007 as the date to go to the archive.   You can listen to the MP3 here.   Here’s the summary:

Does the 2nd Amendment give an individual the right to own a gun? In 2008, The U.S. Supreme Court is expected to hear arguments whether a municipal handgun ban violates the 2nd Amendment. At stake, legal observers say, is whether the Constitutional right to bear arms meant it for the National Guard or for individual citizens. We’ll debate this with DAVID KAIRYS, a law professor at Temple University and SANFORD LEVINSON a law professor at the University of Texas-Austin.

Pretty clearly David Kairys realizes what’s at stake with the Heller case.  Sandy Levinson sort of trivializes the impact he thinks it will have, offering up the fact that state constitutions that are recognized as individual rights don’t place much of a bar on many state regulations of firearms.  I don’t disagree that the short term impact of Heller is going to be pretty small in terms of dismantling the status quo as far as gun control goes, but it will have far reaching implications into the future if we win.  It backs the anti-gun movement up against the Bill of Rights, and they know what the consequences of that is going to be.  It won’t just be the crazy gun nuts who believe that words of the second amendment mean you have a right to own a gun, it’ll be the US Supreme Court that says that!

For those of you who don’t know Philadelphia, David Kairys was the architect of the city’s lawsuit against gun manufacturers when the city was run by then Mayor Ed Rendell.  Sanford Levinson is one of the legal scholars who first adopted an individual rights view of the second amendment in his law review article “The Embarrassing Second Amendment”.  Levinson isn’t what I would call a gun guy, but we probably wouldn’t be where we are today if he hadn’t gotten the ball rolling in terms of getting liberal scholars on board with taking the second amendment seriously.   Listen to the podcast.  I found it to be worthwhile.

According to a new CNN poll, at least 65% of Americans are part of the extremist minority that folks like Bryan Miller and The Brady Campaign say define people who believe they have a right to own a gun.

Dave Hardy points out that even the Living Constitutionalists are arguing that it makes sense that the second amendment is an individual right.

Peter Hamm should really think about getting his resume polished up.

This is good news.  I wonder if Tom Corbett will take a break from pandering to the anti-smoking busy bodies in order to pander to us for a bit.

Paul Helmke has been busy reading “all the words in the Second Amendment, not just the ones we like”. Unfortunately for them, I’ve been reading all the Miller decision, not just the parts that the Bradys like. You know, like this part:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Emphasis mine. I think the Bradys are very much misreading the Miller opinion. Jack Miller was dead by the time the case was heard, and it was only the government’s position that the court entertained. The court was presented no evidence that the firearm in question was in common military use at the time. The Miller test, therefore, was on the firearm in question, not on the status of the individual. By the Miller test, it would seem to me that an M16 would qualify as protected by the second amendment. Considering that, the Bradys shouldn’t be so enthusiastic about touting Miller. If the court adopts that test, I may be able to get M16s rather than AR-15s, which would make me rather pleased, but probably not Paul Helmke.

UPDATE: Ian Argent has more over on his blog.

Dave Hardy responds to an op-ed by Professor Ed Chemerinsky, which claims the second amendment is surely a collective right, in the Contra Costa Times.

Whatever staffer over at The Brady Campaign who is responsible for their blog is going to have to be careful not to get carpel tunnel syndrome from blogging out so much crap as of late. Their latest steamer repeats the old tired explanation of why the Parker decision was wrong and out of touch with the purpose of the second amendment:

If the Second Amendment is read naturally, in the order it is written, then its militia purpose explains “the right of the people to keep and bear Arms,” not the other way around. A “well regulated Militia” is the Amendment’s aim, not merely some side benefit of arms owned for “private purposes.”

The Brady’s are arguing here that the introductory clause, where the founders explain a purpose of recognizing the people’s right to keep and bear arms, renders the operative clause, “the right of the people to keep and bear arms shall not be infringed” without meaning, since there’s no longer a “well-regulated militia”.

It’s not the first time an argument like this has been made before The Court. In the case of Eldred v. Ashcroft, which challenged the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, the attorneys representing Eldred tried to argue similarly the the copyright power, which is granted Congress in Article I Section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Was limited only to those purposes which promoted the progress of science and the useful arts, and since the 1998 Copyright Act extended the copyright period well beyond death, it could not possibly be construed to do such a thing, since dead people seldom produce useful art. Here’s what The Court said about that argument:

The CTEA’s extension of existing copyrights categori-cally fails to “promote the Progress of Science,” petitioners argue, because it does not stimulate the creation of new works but merely adds value to works already created. As petitioners point out, we have described the Copyright Clause as “both a grant of power and a limitation,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966), and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist, 499 U. S., at 349. The “constitutional command,” we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a “system” that “promote[s] the Progress of Science.” Graham, 383 U. S., at 6.

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.

The Court in Eldred felt that the preambular clause in the copyright power served as no meaningful limit on that power.  If The Court is unwilling to find a preambular clause as being a limit on a power of Congress, what makes them so confident they would be willing to go so far as to believe a preambular clause would render part of the Bill of Rights completely meaningless?

Eugene Volokh blogs about a Pennsylvania Supreme Court decision that mentions something very key: that the second amendment is an individual right.   Read the whole thing.

I was mentioning the other day that we need to get ready for the meaningless individual rights arguments to start popping up. Here they come in Philly.

As a member of the House Judiciary Committee I received a lot of e-mails urging me to vote against the gun-control bills we considered last week. Many of these e-mails argued, in some form, that the governor’s proposals violated the Second Amendment to the United States Constitution. The writers seemed to feel that the Second Amendment prohibits any restrictions on gun ownership. However, that is simply not how the amendment works.

First off: good job Pennsylvania Gun Owners! He knows we’re watching. But while I agree the second amendment isn’t absolute, I worry when a politician starts down this road.

Last week we voted down two bills dealing with guns. The first would have required people to report the loss or theft of a gun they owned. The second would have limited to one a month the number of guns a person could purchase.

People can argue about the merits of these bills from a policy perspective, but there is clearly no constitutional impediment to either bill. The two rights spelled out in the Second Amendment do not bestow a constitutional “right” not to report a lost or stolen gun. Nothing in the wording of the amendment even arguably says that.

Really? So if I passed a law limiting the amount of ink people could buy with an aim to combat libel, that would be constitutionally permissible under the first amendment? Would limiting someone to a certain number of e-mails a month, with an aim to combat spam, be respectful of our right to free speech and free association?

All we insist on is that the second amendment be treated as seriously as other rights protected by the constitution. Daylin Leach is arguing for something less than “strict scrutiny”, because applied to your right to free speech, the laws I described above would be tossed.

Hat tip to Melody Zullinger, of PFSC for the heads up.

UPDATE: I just e-mailed Representative Leach.  We’ll see if he responds.  I would encourage everyone to do so as well, because it’s important that he hear from gun owners.  Be nice, be factual, and stick to the issues.

Over at Of Arms and the Law.

Mostly “linky-no-thinky” until Monday.  I’m busy trying to get all my leaves up this holiday.  They were late falling off this year, and I only have a few collection days left before they stop.