SCotUS to hear arguments in Heller case this week

jimpeel

Well-Known Member
This should be interesting to see the court tiptoe around the eggs trying to please everyone. The meaning, intent, and history of the 2nd Amendment are clear. How the court will decide otherwise will be interesting to watch.

The Separation Clause was decided on one letter to the Danbury Baptist Church. So how the court can rule contrary to the dozens of quotes, writings, public speeches, and declarations of the intent of the Amendment by the Founders who wrote the document will be interesting to watch as well.

http://www.washingtonpost.com/wp-dyn/content/article/2008/03/15/AR2008031502358_pf.html

D.C.'s Gun Ban Gets Day in Court
Justices' Decision May Set Precedent In Interpreting the 2nd Amendment

By Robert Barnes
Washington Post Staff Writer
Sunday, March 16, 2008; A01

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."

The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.

The law's challengers -- security guard Dick Anthony Heller is the named party in the suit -- say the measure has been an abysmal failure at cutting crime or stanching the city's homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.

The city's lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.

The case could be a revealing test of the court headed by Chief Justice John G. Roberts Jr. Roberts came to the bench saying justices should decide cases as narrowly as possible, but last year he was part of a slim majority that made bold breaks with the court's jurisprudence in cases both recent and old, on issues such as school integration and abortion.

Clues to the justices' interpretations of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue -- in 1939 -- it "sidestepped" the fundamental questions.

That is part of the reason that the outcome -- not expected until near the end of the court's term in late June -- will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.

"It is very rare that the justices write on a clean slate," she said. "In some ways, it gives them great freedom."

Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a local gun-control ordinance on Second Amendment grounds.

The amendment says that "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,'' and all but one of the circuits that had considered the issue previously had interpreted it as providing a gun-ownership right related only to military service.

But Senior Judge Laurence H. Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provides an individual right just as other provisions of the Bill of Rights do. And because handguns fall under the definition of "arms," he wrote, the District may not ban them.

The Supreme Court's endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars -- "against my political instincts," in the words of Harvard law professor Laurence H. Tribe -- have endorsed the individual-right view.

But even fundamental rights are subject to government restrictions, and whether the justices are ready to decide on the reasonableness of the District's ban could be the crucial question of the case.

The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right but that the appeals court erred in deciding that the District's ban was automatically unconstitutional.

"If adopted by this court," Solicitor General Paul D. Clement wrote in the government's brief, "such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns."

Clement said that the District's law may well be unconstitutional, but that the case should be returned to lower courts for "application of a proper standard of review" and to permit "Second Amendment doctrine to develop in an incremental and prudent fashion."

Gun rights supporters were furious about the government's position, and Vice President Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration's view. Levy said returning the case to lower courts would be a "death knell," and his team has urged the court to apply "strict scrutiny" to any government action that would restrict gun ownership.

Said Gura: "What we want to do is take prohibition off the table."

The case is complicated by the District's secondary argument that the Second Amendment is not implicated by legislation that applies only to the District of Columbia.

The challengers have received a broad array of political support, signs of the strength of the gun rights movement: More than 31 states and a majority of the House and Senate have signed friend-of-the-court briefs.

Among the presidential candidates, Republican Sen. John McCain signed on, while Democratic Sens. Barack Obama and Hillary Rodham Clinton did not. Both Democrats have looked for a middle ground, saying they believe the Second Amendment preserves an individual right, but one that is subject to government restrictions.

That position would seem popular. A Washington Post poll shows that 72 percent of the public believes the Constitution provides an individual right, but respondents were evenly split on whether it is more important to protect the rights of Americans to own guns or to control gun ownership.

Nearly 60 percent said they would support the kind of law in question.

But nationally, it is hard to find many laws as restrictive as the one in the District, partly because of the gun rights lobby's vigilance. More than 40 state constitutions have gun ownership guarantees. Maryland's is one of the few that does not.

As a result, it is difficult to know what gun-control legislation across the country would be at risk even if the Supreme Court upheld the D.C. Circuit's decision.

Levy said the next targets will be handgun laws in Chicago and New York City, although the court has never held that the Second Amendment is applicable to states. And one legal theory is that the provision is a restriction only against the federal government.

Both sides agree that the court's decision could send a powerful message beyond the District.

Tribe, whose support of the individual right is often cited by gun rights supporters, wrote an article in the Wall Street Journal recently that said the District's law could still be upheld and urged the court to decide the case narrowly.

But he acknowledged in an interview that the justices might "jump at the opportunity" to write broadly when they finally have a chance to put their mark "on a part of the Constitution that isn't already paved over with layer upon layer of judicial precedent."

Polling director Jon Cohen and researcher Madonna Lebling contributed to this report.
 

jimpeel

Well-Known Member
The NRA has set up a website for this case.

To help you more easily access and navigate through all of the detailed information we’ve compiled on this historic, critically important case, we’ve developed a new webpage -- http://www.nraila.org/heller/ -- for you to use. On this page, you’ll be able to read related articles we’ve written on District of Columbia v. Heller, and view the dozens of amicus briefs filed in the case.

Transcripts and an audio file of the arguments will be available following the hearing. We will be sure to update you on the case next week.
 

Gonz

molṑn labé
Staff member
Jefferson said:
"No free man shall ever be debarred the use of arms."

Madison said:
"Americans [have] the right and advantage of being armed, unlike the citizens of other countries whose governments are afraid to trust their people with arms."

S Adams said:
"The Constitution shall never be construed to prevent the people of the United States, who are peaceable citizens from keeping their own arms . . ."

Richard Henry Lee said:
"A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms."

Richard Henry Lee said:
"To preserve liberty, it is essential that the whole body of people always possess arms..."

Patrick Henry said:
"Are we at last brought to such humiliating and debasing degradation that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"

THey were clear on what keep & bear arms meant.
 

2minkey

bootlicker
it's a pretty solid bet that the founding fathers did not anticipate the level of firepower that can be readily concealed that we have today.
 

jimpeel

Well-Known Member
it's a pretty solid bet that the founding fathers did not anticipate the level of firepower that can be readily concealed that we have today.

That is akin to saying "the founding fathers did not anticipate the level of communication that can be readily transported that we have today." Cell phones, iPods, the Walkman, palm pilots, laptop computers, handheld geosynchronous location and mapping devices.

If high speed, high capacity firearms, such as machine guns, and self loading self protection firearms, such as high capacity handguns, negatively impact the Second Amendment because the authors could never have imagined such devices; what effect, then, should high speed printing presses, television, radio, telephony, etc have on the First Amendment?

The founders had seen the progression of firearms from a hand-held firearm ignited with a punk, to a smoothbore matchlock long gun, to a wheellock, to a flintlock; what in Hell makes anyone think that they did not think that the effectiveness and mechanics of firearms would not continue to be developed?

Leonardo DaVinci (1452 - 1519) drew pictures of a rapid-fire cannon and an automatic fire crossbow over 300 years before the war for independence. DaVinci's work documents the desire for rapid-fire high capacity weapons long before the Founders, or the documents they authored, ever existed.

The Founders likely imagined the high speed lithograph printing press, self propelled vehicles, aircraft, and cannon that could fire over 40 miles.

However, they likely never imagined the Internet, television, radio, computers, super cannon that can fire over 300 miles, spacecraft, or satellites.
 

2minkey

bootlicker
That is akin to saying "the founding fathers did not anticipate the level of communication that can be readily transported that we have today." Cell phones, iPods, the Walkman, palm pilots, laptop computers, handheld geosynchronous location and mapping devices.

If high speed, high capacity firearms, such as machine guns, and self loading self protection firearms, such as high capacity handguns, negatively impact the Second Amendment because the authors could never have imagined such devices; what effect, then, should high speed printing presses, television, radio, telephony, etc have on the First Amendment?

why don't you answer that yourself? what was the "original intent?" does today's communication technology fundamentally line up with that intent?

but in this context, who cares? we're talking about guns, which have changed fundamentally, in a context that has changed fundamentally.

having a rifle or a shotgun at the house is very different from a dense, urban area, where lots of folks are packing heat.

by the way, thanks for letting me know they didn't anticipate satellites, either. i was really struggling on that one. :la:
 

jimpeel

Well-Known Member
why don't you answer that yourself? what was the "original intent?" does today's communication technology fundamentally line up with that intent?

The quotes of the Founders are rife with comments on the right to arms by the common citizen. That was the intent.

On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.
— Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

but in this context, who cares? we're talking about guns, which have changed fundamentally, in a context that has changed fundamentally.

<Many of the Founders, like Jefferson, Franklin,and Adams, were inventors who knew full well the concept of the changing technology and the changing context of that technology. There is no reason to believe that they thought any differently about firearms.

having a rifle or a shotgun at the house is very different from a dense, urban area, where lots of folks are packing heat.

Yet in the 1800's the populace in general was armed at all times in the street, on trains, on stage coaches, in bars, restaurants, etc. They just didn't have the shootouts that the antis envision when they take one incident -- the shootout at the OK Corral -- in which over 30 rounds were fired by nine men standing less than ten feet from each other and the result was three deaths.

There is much to be said of the old saw "An armed society is a polite society."

by the way, thanks for letting me know they didn't anticipate satellites, either. i was really struggling on that one. :la:

I figured that. Always here to help when needed. ;)
 

spike

New Member
<Many of the Founders, like Jefferson, Franklin,and Adams, were inventors who knew full well the concept of the changing technology and the changing context of that technology. There is no reason to believe that they thought any differently about firearms.

On the other hand there's no way they could have foreseen the current situation. It's pretty hard to predict technology 20 or 50 years in advance let alone hundreds.

Yet in the 1800's the populace in general was armed at all times in the street, on trains, on stage coaches, in bars, restaurants, etc. They just didn't have the shootouts that the antis envision

Do you actually have some info on this lack of shootouts?
 

jimpeel

Well-Known Member
On the other hand there's no way they could have foreseen the current situation. It's pretty hard to predict technology 20 or 50 years in advance let alone hundreds.



Do you actually have some info on this lack of shootouts?

While there were duels etc., they were not as common as the antis would have you think. Most shootouts were between rival criminal factions or during criminal acts. Sorta like they are today.

From another site:

http://guncite.com/wild_west_myth.html

Such low rates of robbery, burglary, and theft cannot be attributed to swift and certain justice meted out by the criminal justice system in Aurora or Bodie. Rarely were any robbers, burglars, or thieves even arrested. Law officers often had a rather casual approach to their job, and some operated on both sides of the law: a gang leader and several of his men served as officers for a time in Aurora, and several Bodie officers may have cooperated with robbers. On the rare occasions when a suspect actually was arrested, chances were good that, if prosecuted, he would not be convicted. Since so few men were convicted, it hardly seems possible that the normal punishment that followed—imprisonment in jail or the penitentiary—could have served as much of a deterrent.

There seems to be little question that the principal deterrent to robbery, burglary, and theft in Bodie and Aurora was the armed citizenry. Not only were the citizens armed but often they had professional training and experience in the use of firearms. Many of the residents of Aurora had fought in the Mexican War and those of Bodie in the Civil War. This was especially true of the Irish-born residents who had arrived in the United States just in time, and in such a condition, to make them likely candidates for service in the wars. Thus the citizens had arms, knew how to use them, and were willing to fight with deadly force to protect their persons or property.

...

Conclusion

Popular wisdom says that generations of living on and conquering frontiers have made Americans a violent and lawless people. Popular wisdom is wrong. So is much scholarly literature that has drawn conclusions about violence and lawlessness from anecdotal evidence and specious assumptions.[70] The kind of crime that pervades American society today has little or no relation to the kind of lawlessness that occurred on the frontier if Aurora and Bodie are at all representative of western communities. Rob-(p.142)bery of individuals, burglary, and theft occurred only infrequently and rape seems not to have occurred at all. Racial violence and serious juvenile crime were absent also. The homicides that occurred almost invariably resulted from gunfights between willing combatants. The old, the weak, the innocent, the young, and the female were not the targets of violent men. In fact, all people in those categories would have been far safer in Aurora or Bodie than they are today in any major U.S. city. Even most smaller cities and towns are far more crime ridden and dangerous than were Aurora and Bodie.

There simply is no justification for blaming contemporary American violence and lawlessness on a frontier heritage. The time is long past for Americans to stop excusing the violence in society by trotting out that old whipping boy, the frontier. On the contrary, it would seem that the frontier, instead of representing America at its worst may have, in many respects, represented the nation at its best.
 

spike

New Member
Such low rates of robbery, burglary, and theft cannot be attributed to swift and certain justice meted out by the criminal justice system in Aurora or Bodie. Rarely were any robbers, burglars, or thieves even arrested.

Sound like the low rates of robbery could be because of them not gettting reported or followed up on by the law.

Anywho, this really doesn't do much to show that there were lack of shootouts or gun deaths in the late 1700's or 1800's.
 

Gonz

molṑn labé
Staff member
having a rifle or a shotgun at the house is very different from a dense, urban area, where lots of folks are packing heat.

It's sure as hell lower the crime rate.

The folks writing the Constitution, then the Bill of Rights were in the middle of a densely populated urban area. Arms are arms.
 

Gonz

molṑn labé
Staff member
Any arms imaginable? Anywhere? 3 year olds too?

Where does one put a 60 megaton bomb?

Anywhere? Sure.

3 year olds? Absurdity is your middle name isn't it? It's up to the parents. I had a shotgun as a young'un.
 

spike

New Member
What was that supposed to explain? You think when Jefferson said "no free man" he meant just adult men? What about adult women?
 

jimpeel

Well-Known Member
Such low rates of robbery, burglary, and theft cannot be attributed to swift and certain justice meted out by the criminal justice system in Aurora or Bodie. Rarely were any robbers, burglars, or thieves even arrested.[/quotes]

Sound like the low rates of robbery could be because of them not gettting reported or followed up on by the law.

Anywho, this really doesn't do much to show that there were lack of shootouts or gun deaths in the late 1700's or 1800's.

I gave you a well researched article on the subject. You asked and I responded. What would it take to satisfy you?
 

jimpeel

Well-Known Member
Where does one put a 60 megaton bomb?

Anywhere? Sure.

3 year olds? Absurdity is your middle name isn't it? It's up to the parents. I had a shotgun as a young'un.

The "atom bomb" and "guns in the hands of children" are standard fare for the liberal crowd. Get in a discussion with an anti and those two are not long from being brought to the fore.
 
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