D.C. Requests High Court to Hear 2nd Amendment Case

Mayor Adrian Fenty announced yesterday that the District will petition the Supreme Court to hear arguments about the overturning of the District's handgun ban by the U.S. Court of Appeals for the D.C. Circuit. In a 2-1 ruling, that court found the handgun ban is unconstitutional, possibly setting the stage for the first Supreme Court ruling on the Founding Fathers' intended meaning of the Second Amendment since Miller v. The United States in 1939.

Miller has been viewed as providing the right to bear arms collectively to militias, rather than to individuals, while the circuit court's ruling in the D.C. case found the Second Amendment also applies to individuals.

The Cato Institute philosophically supported the suit by six D.C. residents to overturn the gun ban. Roger Pilon, Cato's vice president of legal affairs, says the Second Amendment should be viewed as an individual right. People also have a fundamental right to defend themselves, and the "right of self defense entails the right to the means of self defense," Pilon told Legal Times today.

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, says that precedents point to the logic of Miller and a collective reading of the Second Amendment. He says one must ignore the first 13 words of the amendment to claim it provides an individual right to bear arms. Given the current conservative bent of the Supreme Court, Helmke is still worried.

"We have been seeing a lot of 5-4 rulings as of late," he said.

Helmke, like other gun control advocates, also fears an adverse Supreme Court ruling in the D.C. case could trigger the overturning of many strict gun-control laws across the country. "If the court does overrule Miller, what will they say in regards to reasonable regulation?" Helmke asked. "The Second Amendment is the only one in the Bill of Rights to mention regulation.”

Comments

[Second Amendment]

Firstly, I don't think anyone is arguing that people should be able to own nuclear weapons in their home. And to effectively say, "Because nukes are regulated, so should guns," is absurd. They aren't the same thing at all.

Secondly, a point that I never see argued, I'm surprised that people question the individual's ability to own nuclear weapons but not the government's. Since the government derives its authority from the governed, how does it have such rights if the people do not?

[James Macklin]

In Miller, The Court said that when called, militia members were expected to arrive bearings arms supplied by themselves and of the type then in current military service, that means today, each person in the unorganized militia would be expected to own a burst-fire M-16 or M4 carbine.
The news media today is poorly informed, they call warlords and gangs in other coutries "militia" and then tell the US citizen that the "right of the people to keep and bear arms" only applies to militia?
It will be a landmark case, decided wrongly, and it could trigger a new American revolution.

[ConstitutionFallible]

The Constitution is constantly in flux and open to interpretation BY DESIGN. It is a tool and nothing more. The minute it becomes maladaptive is the minute we change it. Gun rights in constitutional times doesn't mean the same thing as it does now in a time of better technology. You have no right to an automatic weapon just as you have no right to a nuclear arsenal in your home. Get serious.

[Robert]

Even if the 2nd amendment is determined to apply only to the militia, in some places the effect could be minimal since a few states classify their entire adult population as "unorganized militia." (ex. Virginia) Further more, if the meaning of the word militia is looked at in the historical context of the time at which the constitution was written one can see how the right to bear arms for all intents and purposes belonged to individurals.

[PistolPete]

Why would the Framer's place the militia part at all if it wasn't crucial to the meaning of the amendment? If they had wanted to protect an individual's right to bear arms couldn't they have done it in much simpler terms like they did for speech, press, and religion? I believe the founders were smart enough to lay it out if they wanted.

I think there is definite reason to read this as possibly a collective rather than individual right.

[Gun Guru]

First off, the Miller decision did not state the Second Amendment only applies to those enlisted in the military. Militia has ALWAYS referred to most of the citizenry and current federal law defines it into two parts: one is the organized military and the other is those not enlisted in the military.

If the 1939 court did not believe it was an individual right, they would have said the two defendants did not have any standing. What they said was because they could not see how a sawed off shotgun was not integral to the efficiency of the military, it was not covered under the Second Amendment. Conversely, if something could be tied into the efficiency of the military, it would be covered (i.e. assault rifles and handguns with full capacity magazines).

The Supreme Court has ruled specifically that the phrase "the people" is the same in all of the amendments that use it, therefore since "the people" in the other amendments does not refer to the states, it is obviously an individual right.

[John Thayer]

To better understand the Second Amendment to the United States Constitution it is helpful to consider how almost every reasonable person would interpret this amendment if it did not involve something which is considered controversial or politically incorrect by some and idolized by others. Arms in the possession of ordinary citizens meet both criteria. Let's, for the sake of argument, suppose that the Second Amendment dealt with books, not arms or weapons, and read like this: "A well educated electorate, being necessary to the maintenance of a free State, the right of the people to own and read books, shall not be infringed." Does anyone really believe that liberals would claim that only people who were eligible to vote should be allowed to buy and read books? Or that a person should have to have voted in the last election before the government would permit him or her to buy a book? Would the importation of books be banned if they did not meet an "educational purpose" test? Would some States limit citizens to buying "one book a month"? Would inflammatory "assault books" be banned in California?

Emotion in Reading
The meaning of the Second Amendment becomes quite clear if one removes the emotional "gun" issue. Let's restate the 2nd in another context:

A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed.

If this were the law, would only educated people have the right to keep books? Or, would only the voting electorate be allowed to read? Of course not. All the people would have the right to keep and read books, and the state would benefit by having a more educated electorate.

There is NO requirement to be a member of a Militia to have the RIGHT to keep and bear arms. However, the more people who DO, the better the security of the state.
Gary Possert, Lancaster, CA

The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]