Thursday, June 26, 2008

DC Gun Ban Struck Down By The Supreme Court

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. - 2nd amendment US Constitution

The Shot Heard Round The World 2008

2nd Amendment Rights Kept Intact with a 5-4 decision in
Columbia et al. v. Heller

Judge Scalia wrote the opinion.

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.

Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

478 F. 3d 370, affirmed.
The court's 5-4 ruling (Justices Breyer, Stevens, Souter and Ginsburg dissenting of course) strikes down the District of Columbia's 32-year-old handgun ban and calls it incompatible with gun rights under the Second Amendment.

This Supreme Court ruling proclaims that Americans have a right to own guns for self-defense and hunting and this was first major pronouncement by the high court on gun rights in U.S. history. The basic issue for the high court was whether or not the 2nd amendment protected an individual's right to own guns no matter what, or whether that right is somehow was only tied to service in a state militia.

What everyone must understand very clearly is that the framers of our Constitution wanted to make sure that people could protect themselves from a totalitarian government - not just to protect themselves from burglers or to go hunting. This is of utmost importance.

A case in point is that Jews were disarmed before the Holocaust extermination begun.
Read this article by the American Rifleman included these thoughts:

Himmler, head of the Nazi terror police, would become an architect of the Holocaust, which consumed six million Jews. It was self evident that the Jews must be disarmed before the extermination could begin.

Finding out which Jews had firearms was not too difficult. The liberal Weimar Republic passed a Firearm Law in 1928 requiring extensive police records on gun owners. Hitler signed a further gun control law in early 1938.

Other European countries also had laws requiring police records to be kept on persons who possessed firearms. When the Nazis took over Czechoslovakia and Poland in 1939, it was a simple matter to identify gun owners. Many of them disappeared in the middle of the night along with political opponents.

...While the Nazis made good on the threat to execute persons in possession of firearms, the gun control decree was not entirely successful. Partisans launched armed attacks. But resistance was hampered by the lack of civilian arms possession.

Our founders knew the real importance of keeping and bearing arms. We should also learn from history why they were right.

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." (Thomas Jefferson Papers p. 334, 1950)

"And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms...The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants." Letter to William S. Smith 13 Nov 1787 (Jefferson, On Democracy p. 20, 1939; Padover, editor)

Thank Goodness the Justices upheld this extremely important right, and it is frightening to know that 4 justices dissented.

Today is a great day for liberty.


Elisheva Hannah Levin said...

I have been waiting to see this thankfully expected ruling expressed. What does concern me is the 5-4 nature of the decision. It tells me that there are 4 SCOTUS judges who do not uphold the constitution.

Gabriel said...

While I'm generally happy with the ruling, I agree with Elisheva, it is a bit disturbing that 4 justices seem unwilling accept the constitution for what it is.

I've referred to this case as the court ruling on the "constitutionality of the constitution." Hopefully this will open the door for more cases across the states.

Dana said...

Me too...5:4 in favor of the Constitution. What does that say about our future?