Category: 2nd Amendment

I’m intrigued by this quote from Saul Cornell:

The arms bearing provision of the Pennsylvania Constitution does not frame the right as an individual right. If it did it would not pair it with the typical 18th century attack on standing armies and an affirmation of civilian control of the military. The entire provision is clearly about a militia based right.

The 1776 Pennsylvania Constitution states the following:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination, to, and governed by, the civil power.

Can someone explain to me how this can be interpreted as anything other than an individual right when it specifically says “the people have the right to bear arms in defence of themselves and the state?”

Of course, later, in 1790, we shorted that to:

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

Sorry, but the collective rights interpretation is looking more flimsy by the day.

Legal Bitch points to a great debate hosted by the federalist society between Bob Levy, Alan Gura, Glenn Reynolds, Josh Horowitz, Saul Cornell, and Dennis Henigan.

Orin Kerr makes some predictions of his own regarding DC v. Heller, and thinks the court will go a bit further in applying scrutiny to gun laws than this article would suggest.

UPDATE: Alan Gura, Attorney of Record for the Heller case, in the comments:

The facts are simple: the city bans guns.

If this were a “time place and manner” case, involving regulation rather than prohibition, it would have been an entirely different type of case. But it isn’t. The city claims guns are a social ill that should be prohibited. If there is a right to keep guns, the city’s policy preference is irrelevant.

Suppose the city abolished the exercise of religion, determining that religion poses an unacceptable challenge to the authority of the state, promotes sectarian strife, and is generally harmful because it undermines the public school’s educational mission with unscientific superstition. Such a law would be struck down as plainly inconsistent with the First Amendment, even if the government could establish to a judge’s satisfaction that religion has been known to have such deleterious effects, and that the legislature had a compelling need to address the risk.

And just imagine if trials were held to determine the current validity of constitutional provisions defining the structure or powers of government. We’re no longer the same society that initiated the income tax, or first elected a President every four years. Are those provisions suddenly subject to trial?

The Second Amendment is a duly ratified, operative part of the Constitution. People may disagree about how we should interpret the Second Amendment, but in our legal system, we do not have trials to determine whether it is desirable for portions of the Constitution to go into effect.

Via The Madman Raves: Interview with Bob Levy on the Parker Case.

Via Joe:

We must prepare for a long hard battle. So much of what we have worked for in the past and everything we’re currently working on could be destroyed by the heinous decision of right-wing activist judges who chose to ignore more than 60 years of precedent in order to help the gun lobby accomplish in the courts what it has been unable to accomplish in Congress.

Sarah Brady
Email, July 20, 2007
Chair
Brady Center to Prevent Gun Violence

Right wing activist judges?  It’s activism for judges to say the Bill of Rights is, actually, you know, the law of the land, and to treat it that way?  No, Sarah.  No.  If judges can find penumbras formed by emanations in the Bill of Rights, they can damned well pay attention to and enforce what’s actually written there in plain English.  The judges aren’t ignoring “60 years of precedent”, they are enforcing what the Bill of Rights has plainly meant for the last 218 years.

This time, from the other side.  Of course, he’s wrong that it was the NRA that filed suit.  The NRA was actually pretty opposed to the idea.  It was filed by attorneys who were unassociated with the NRA.

 he appeal of the DC gun ban, however, looks likely to renew the debate over the meaning of the Second Amendment. Gun control advocates had urged DC not to appeal their loss in the Appellate Court (which ruled that the Second Amendment did indeed protect the registered gun in your home – that the 1930 opinion was wrong or misconstrued) in order to avoid having the US Supreme Court ratify the appellate decision.

So they were pressured not to go for cert!  Or at least this person seems to think so.  But I don’t think the DC circuit said anything about registration being OK.  And I’m pretty sure that Miller never endorsed anything other than the individual rights argument.

SayUncle is running a poll on Parker. I’ll make my prediction:

The Supreme Court grants cert. Reasonable regulation of firearms are OK, but it gets treated as a right. I don’t expect the court to go into much detail on what kind of regulations it would accept, just that DC’s law is in violation of the second amendment. They’ll leave that to the lower courts to argue over for a few years, then take another case. I think the ruling will be 6-3 in favor of an individual right. It will go thusly:

In the majority, in order of how certain I feel we’ll have them on our side:

1. Thomas
2. Scalia
3. Roberts
4. Alito
5. Kennedy
6. Ginsburg

In dissent, also in order of how sure I feel:

1. Breyer
2. Stevens
3. Souter

I figure the last two could go either way. Souter I’m not sure about being in dissent. Of course, Roberts and Alito we don’t really know much about. We know Roberts knows the law surrounding the second amendment from his confirmation hearings, which suggests he’s looked into it, or at least knew that might come up in the hearings. Really, I think we only have two votes on The Court we can be certain of, and that’s Scalia and Thomas (both of whom are shooters). I think we can feel pretty confident that Alito and Roberts wouldn’t look too kindly on ignoring part of the Bill of Rights. Strangely enough, I think Ginsberg, despite being the most liberal justice on The Court (by some people’s measure) with a background in civil rights litigation, and being big on women’s issues (remember, Parker is a woman), won’t look too kindly on throwing out part of the Bill of Rights either. I think Kennedy could go either way, but suspect he’ll fall on the individual rights side, also not wanting to poop on the Bill of Rights.

But who knows. Chances of me being spot on are slim. Hopefully any surprises are pleasant. The big worry I have is not so much Parker, but what comes after. What kind of regulations will the courts accept? Will the cases that move forward through the federal courts be as good as Parker? Probably not. We’ll surely have setbacks. But if we prevail in Parker, and I think we will, it will shift the battle against the gun control movement into significantly better ground. It will be the most significant victory for gun rights of my lifetime.

UPDATE: Be sure to read Dave Hardy’s take.  He posts the following from one of Ginsburg’s opinions:

“Surely a most familiar meaning is, as the Constitution’s Second Amendment (“keep and bear Arms”) (emphasis added) and Black’s Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.””

Fasten your seatbelts folks, we’re going to The Supreme Court (well, if they take it, but I think they will).

Blogosphere Reactions:

Silvercat’s Lair
Volokh Conspiracy (Johnathan Adler)
SCOTUSblog
Of Arms and the Law
Michael Bane
SayUncle
War on Guns
Countertop Chronicles (thinks DC might just be stalling for time)
Pro Gun Progressive
Blog O’ Stuff
Armed Canadian

If you think you have something to add to the conversation, leave your link in the comments.

According to Dave Hardy, DC will have it’s decision on whether to appeal Parker vs. DC within a week. If I were a betting man, I’d wager they’ll appeal. Reason? When it comes down to it, Fenty and the DC political establishment can’t afford to be seen as backing down. Fenty has to do what he thinks is best for his city and his constituents, and despite any pressure he might be getting from outside gun control groups, political expedience will demand he appeal.

It may not be the smart thing for the gun control movement to do strategically, and surely Fenty has been under a lot of pressure not to move forward, or to make small changes to DC’s law and fight this battle with a different case on better terms. But he also has to consider that he is not the President of the Brady Campaign, he’s Mayor of Washington DC, and he will have do what he thinks is right for his city, no matter how delusional he may actually be about the effectiveness of the ban.

Of course, I could be totally wrong and he won’t appeal. Time will tell.

On a link from Instapundit yesterday, I read this latest paper on the second amendment. If you haven’t read it yet, I would very much recommend it. It gets into the history of gun regulations in colonial times, and is one of the first attempts I’ve seen to address some of the assertions made by the folks at the Joyce funded Second Amendment Research Center.