Right to bear arms

[zerojunkie]

Shamelessly stolen from fark. It's an op-ed piece on a pending supreme court case. Just wanted to know what the DDM masses thought about the second amendment.

DOES THE Constitution's Second Amendment give individuals the right to bear arms or is that right reserved exclusively for members of a "well-regulated militia"? That is the question the US Supreme Court will consider today in the case of District of Columbia v. Heller, a Second Amendment challenge to the District of Columbia's ban on all functional firearms.

I helped bring this case to court on behalf of six Washington, D.C., residents who want to keep functional firearms in their homes to defend themselves and their families should the need arise. But Washington's law bans all handguns not registered before 1976 and requires that lawfully owned shotguns and rifles in the home be kept unloaded and either disassembled or bound by a trigger lock at all times. There is no exception for self-defense. Washington, often known as the "murder capital of the nation," cannot defend its citizens and will not allow them to defend themselves.

This case requires, at a minimum, two findings from the Supreme Court: First, the Second Amendment secures an individual right to keep and bear arms - not a right limited to people engaged in state militia service. Second, the district's ban on all functional firearms violates that individual right and is, therefore, unconstitutional.

An outpouring of modern scholarship - much of it coming from liberal constitutional scholars, like Laurence Tribe at Harvard University and Akhil Amar at Yale University - supports the view that the right to keep and bear arms is an individual right. After all, the Second Amendment is in the Bill of Rights, the part of the Constitution explicitly designed to secure individual rights. And the text of the amendment refers to the "right of the people" - the same people mentioned in the First, Fourth, Ninth and Tenth Amendments. It is inconceivable that the framers - seeking to provide Americans with a means to resist tyrannical government - would fashion a right that can be exercised only in the context of a militia that is under government control.

But can Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible.

Even if the court believes that a ban on an entire class of protected weapons can sometimes be justified, it should conclude that regulations like those in Washington are subject to strict judicial scrutiny: government, if challenged, would have to demonstrate that restrictions serve a compelling state interest, will be effective at attaining the desired goal, and do not unnecessarily compromise Second Amendment rights. That three-part standard has considerable teeth, but will not foreclose legitimate gun regulations, such as sensible registration requirements, proficiency testing, instant background checks, bans on massively destructive weapons, and prohibitions on gun ownership by children, mental incompetents, and violent felons.

The court rigorously scrutinizes all regulations that infringe on personal "fundamental" rights - defined as those rights "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history and traditions." Express provisions in the Bill of Rights are certainly fundamental, and the right to keep and bear arms - occasionally a matter of life-and-death significance - is no exception.

If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right. Banning handguns outright is unconstitutional.

Robert A. Levy is co-counsel to Mr. Heller and senior fellow in constitutional studies at the Cato Institute.

[PETA]

Its an individual right. The collective right argument didn't exist until very recently. It is a fundamental right. It should be incorporated through the 14th amendment and then any lawmaker can write any law they wish to try to restrict guns.... and it'll almost certainly fail to pass constitutional scrutiny

"A well regulated militia" was understood to be all able bodied men of fighting age.... not a group controlled by the state.

It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right.

pretty much


there 17th century act in England which was very much in the minds of the framers that prohibitted Catholics from having guns (we're talking Stuart/Cromwell era here) however, the Kings Bench cases of the time found Catholics who had guns for the protection of self/ home not to be in violation of the prohibition. So, even when gun control was permissible the law recognized an exception for personal protection.

[C-fer]

I'm betting D.C will have to drop the ban.
Everyone has a right to a set of bear arms!!

[jaesun]

Well, we all know that criminals will stop using guns to kill people if there is a law in place to ban guns from certain states, cities, and buildings. Criminals will be honest about it and will be the first to throw their guns away if there were more laws prohibiting them and more gun free zones. Why shouldn’t we trust them?

It seemed to have worked for…
UTA - 1966
Virginia Tech
Northern Illinois University
Columbine
Westroads Mall in Omaha, NE

All of the shooters were very worried about a citizen’s right to own a gun. If all of those people they shot were bringing guns into areas they weren’t supposed to they wouldn’t have been able to kill them all. Then where would we be? There would have been less innocent dead people and more homicidal freaks not being able to express themselves through violence.

[MC Twinkie]

Yeah, this is like saying black people shouldn't be able to vote unless a slave master tells them who to vote for.

Some people still hunt with guns, either for food or for sport. It doesn't take a whole militia to kill a deer. I think I would be more affraid of police and the army being the only ones that had the right to have guns.

[jaesun]

Originally Posted by clay donkey

Yeah, this is like saying black people shouldn't be able to vote unless a slave master tells them who to vote for.

Some people still hunt with guns, either for food or for sport. It doesn't take a whole militia to kill a deer. I think I would be more affraid of police and the army being the only ones that had the right to have guns.

BINGO!!

[Damnsammit]

Originally Posted by xian

Its an individual right. The collective right argument didn't exist until very recently. It is a fundamental right. It should be incorporated through the 14th amendment and then any lawmaker can write any law they wish to try to restrict guns.... and it'll almost certainly fail to pass constitutional scrutiny

I agree that it is an individual right secured in the bill of rights... just out of curiosity do you think that determining Washington's ban to be unconstitutional would have any effect on current gun restrictions, such as the bans on certain types of firearms?

Or since these bans simply regulation policies and not restricting access to all guns, would they still be perceived as constitutional?

[tekmoe]

no wonder DC is such a shit hole. none of the law abiding citizens are allowed to have guns; it's all the criminals who have the guns!

[Ash]

I personally think that we should arm bears.

http://i22.photobucket.com/albums/b317/afrnka/bear.jpg

[PETA]

Originally Posted by Damnsammit

I agree that it is an individual right secured in the bill of rights... just out of curiosity do you think that determining Washington's ban to be unconstitutional would have any effect on current gun restrictions, such as the bans on certain types of firearms?

Or since these bans simply regulation policies and not restricting access to all guns, would they still be perceived as constitutional?

If the rule from US V Miller (1939) is applied.... any weapon w/military application is specificly protected... hunting weapons are not specifically protected.

There's no guarantee on what way the court will go but attempts to classify weapons as permissible or impermissible based on their cosmetics or storage capacity would seem to directly contradict a prior SCOTUS ruling not to mention being stupid.... a collapsable stock makes a gun no more or less an assualt weapon.

The question is whether the right adheres to the individual and if that is upheld it would seem parsing which weapon is or is not "in bounds" would be arranging deck chairs on the titanic for the control crowd. It would seem a simple analysis... is it a gun? If yes, then it's protected.

Originally Posted by tekmoe

no wonder DC is such a shit hole. none of the law abiding citizens are allowed to have guns; it's all the criminals who have the guns!

Clearly you missed the point. If we tell criminals they cannot have guns then fewer people will get shot or held up with guns.

This is one issue I am definitely on the right on. I think everyone should own a gun, at least for home protection. If criminals knew there was a high likelihood of being shot every time they tried to rob someone or break into someone's home, I think we'd see a drastic drop in the crime rate.

[PETA]

Originally Posted by TragicallyUnhip

This is one issue I am definitely on the right on. I think everyone should own a gun, at least for home protection. If criminals knew there was a high likelihood of being shot every time they tried to rob someone or break into someone's home, I think we'd see a drastic drop in the crime rate.

there are published articles claiming to prove that... the cat who wrote Freakanomics claims the conclusions drawn from the statistics are wrong but Lott (the original writer) demonstrated to my satisfaction that Levitt played fast and loose

[I AM EL-NINO]

Originally Posted by clay donkey

Yeah, this is like saying black people shouldn't be able to vote unless a slave master tells them who to vote for.

You mean like the Democratic Party?

[zymote]

Originally Posted by TragicallyUnhip

This is one issue I am definitely on the right on. I think everyone should own a gun, at least for home protection. If criminals knew there was a high likelihood of being shot every time they tried to rob someone or break into someone's home, I think we'd see a drastic drop in the crime rate.

I disagree - I think that if criminals knew there was a gun in every home, they'd spend more time at the range. In a fairly sordid period of my life, I knew more than one person who broke into houses for a living, and I asked them about this. Not a single one of them was worried about it, as they would either go into houses when they knew nobody was there, or were confident enough in their ability to lay down suppressing fire to cover their escape, should it come to that. The kind of people that break into houses aren't the kind of people that are afraid of guns, especially if they know that the person on the other end has a pretty high chance of not knowing how to handle a weapon.

It seems to me that a large part of having guns around is the feel good notion that your quick draw skills might save the day. It seems very irresponsible to be so cavalier about such a serious topic, though. We can't even trust the majority of our population to exercise their civic duty by voting, so what makes you think we can trust them to learn how to properly use and fire a deadly weapon?

That's not to say that I'm against all guns - those that want to take the time to learn to use them responsibly should definitely have that right. I do think, however, that handguns should be more regulated. If the purpose of the second amendment is as a check on tyranny, then handguns don't really enter into it. Wars are fought with rifles, not pistols. Things like concealed carry shouldn't be legal - all you're doing is doubling the number of idiots with a weapon in a situation. If someone wants to keep a handgun in their home, then I don't see a problem with it, but otherwise, they should only be taken to and from the gun store and the range, in a locked case in your trunk.

[zerojunkie]

Just pointing out that typically a shotgun is a much better home defense weapon than a pistol. And the issue for criminals in a state with a concealed handgun law is that they don't know who has the gun. So if you're committing a crime in a public place any number of people in the immediate vicinity could have a gun and end your life right there. That's a pretty stout deterrent.

Home invasion is a slightly different topic. You raise a decent point, in that a lot of people with weapons for home defense really don't often think about the scenario of the person they're confronting having a gun too. Although, many factors weigh into that, typically the homeowner is going to be much be much better armed than the burglar and is going to know the terrain. Also the laws setup now to where no kind of warning or attempt to escape is needed (not saying that's not the best course of action), but if you're on the business end of my gun and you don't see me...you're not leaving there under your own power. Three advantages that will, more often than not, be the burglars undoing.