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The New Second Amendment: A Bark Worse Than Its Right
In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court reversed course and held that the Second Amendment protected an individual's right to own guns for personal self-defense.
So far, the victory hasn't turned out exactly as the gun rights folks had hoped.
As many legal scholars predicted, the Supeme Court's decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.
To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.
Since Heller, its Gun Control 60, Individual Right 0.
Before the Supreme Court's decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.
About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.
The basis for most of these lower court rulings upholding gun control is a paragraph near the end of the Supreme Court's decision that, at the time, seemed like a throwaway. The Supreme Court wrote that "nothing in our opinion should 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 on the commercial sale of arms."
What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.
"I would have preferred that that not have been there," says Robert Levy about this laundry list of Second Amendment exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in Scalia's opinion "created more confusion than light."
But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful--a message that hasn't been lost on the lower courts.
Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.
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The language could not be more clear: "...the right of the people to keep and bear arms shall not be infringed." That has to mean that all of the various laws, rules, codes, etc. regulating, restricting, or barring personal possession of "arms" in the broadest sense throughout the entire USA are infringements specifically barred by the crystal clear language of the last clause of the Second Amendment, and therefore illegal themselves. If one disapproves or abhors such a conclusion, mount a movement to repeal part of, or the whole, Second Amendment. I personally think it should be redefined, limited to barring the Federal Government from infringing on the States capability to form and maintain Militias.
Think of the context 200 years ago: there were the British, French, and Spanish Empires existing on the borders of the just born USA, plus Native American communities, all real threats to attacking parts of the new country. States and localities had to respond quickly for their defense, there was not time to go to central or regional "weapons warehouses" to be issued arms. "Marquess of Queensbury "-like rules on arms were not applicable.
Your right, strictly speaking. All firearms restrictions are unconstitutional.
But I think we have to be realistic, and realize that some controls are here to stay, like backgraound checks, for example.
I would go along with that, if background checks only excluded convicted, violent felons and the mentally ill. But they exclude far too many others, in my opinion.
And we've found out that sometimes, background checks aren't even taken.
BTW, you can't always tell if someone is mentally ill, manytimes that action taken is the very first offense.
And some folks that do suffer from mental illness are quite capable of
"fooling" most folks into believing that they are normal. That's a fact.
How pray tell would you define "mental illness." Some studies suggest that up to 25 percent of Americans have been clinically diagnosed with depression. Would you deny them all gun ownership? Or would you have each person who applies for a gun permit or register to purchase a hunting rifle undergo psychiatric screening. If so who would pay for it?
Once again, people want to take away our rights. WHY,WHY,WHY. Guns don't kill people. People kill people. I have guns and kids, I taught my kids respect for guns and how to treat people. It is all in the training of life that makes people do what they do. I have been hungry enough and had to hunt to feed my family And we ate pretty good. And I tell you know if someone would break into my house or bring harm to my family, I would not hesitate to kill first. Don't ever bring a knife to a gun fight. Just think if they took all the legal guns or our rights. Who would have guns, "the bad people" Just look how well that is working in the third world countries. There is a town where I live and you have to own a gun. And they have ZERO crime. If you have ever pulled up to a farm house in the middle of nowhere, there is a feeling you get, when you know, you could be in the crosshairs and it is reality. No gangs no crime and you wonder why I live where I do. And will never live in California again.
I don't think folks are really talking much about shotguns or guns you can use for hunting...but then again, they can be used to kill humans just as handguns can.
No real good reason for handguns...just to kill.
And, if someone tries a home invasion, it's likely that person can get that gun away from you.
Guns are tools for killing, the sad fact is that the more guns a nation has, the more likely the murder rate will go up.
In any event, if you want your right to own a gun, you have to provide me and everyone else the assurance that our lives will not be taken.
That's YOUR RESPONSIBILITY TOO, not just mine.
And as far as I'm concerned, you aren't living up to that responsibility very well.
"I don't think folks are really talking much about shotguns or guns you can use for hunting..."
Oh, but they are. And on top of that, the Second Amendment ISN'T ABOUT HUNTING!
"No real good reason for handguns...just to kill."
Really? is that why the most common way they are used is recreation and competition?
" if someone tries a home invasion, it's likely that person can get that gun away from you."
A tired old saw which extremely rarely happens.
"if you want your right to own a gun, you have to provide me and everyone else the assurance that our lives will not be taken."
Nope. YOU have to trust me unless I give you reason not to. That is the nature of a right.
I know a woman who hunts deer with a handgun. She uses a Ruger Redhawk.
"In any event, if you want your right to own a gun, you have to provide me and everyone else the assurance that our lives will not be taken." In order to exercise his right to defend himself and his family he has to become a free private security force for you? "Guns are tools for killing, the sad fact is that the more guns a nation has, the more likely the murder rate will go up." Can you provide any evidence that would actually support that conclusion? If you compare apples to apples ie socioeconomically similar areas there is no evidence that gun control laws work. "And , if someone tries a home invasion, it's likely that person can get that gun away from you." Do you have any basis for making that statement? Maybe somebody like you who obviously knows nothing about firearms and is afraid of them should not own a gun. But why should other people have their right to defend themselves taken away because you are afraid of guns. "don't think folks are really talking much about shotguns or guns you can use for hunting...but then again, they can be used to kill humans just as handguns can." Long guns are more lethal than handguns. Do you know anything about firearms. And yes people are talking about taking away long guns and there are numerous laws infringing on the right to own long guns.
"And, if someone tries a home invasion, it's likely that person can get that gun away from you."
That sounds like spoon-fed, Brady Campaign nonsense to me. What on Earth gives you that idea? I don't suppose you can back that up with anything resembling proof?
"In any event, if you want your right to own a gun, you have to provide me and everyone else the assurance that our lives will not be taken.
That's YOUR RESPONSIBILITY TOO, not just mine.
And as far as I'm concerned, you aren't living up to that responsibility very well."
Oh baloney. There are no assurances in life. It is however, damned unlikely that your life will be taken by a lawful gun owner, rather than a repeat criminal. Haven't you been paying attention?
And as far as "living up to responsibility", whose responsibility is it to punish violent criminals, and keep them off the streets? Every gun owner I know, the NRA, and every police official I ever heard speak about the subject, has been screaming about the fact that these criminals are being recycled back into society, only to commit more violent acts.
Yet, it's the anti gun people who can't wait to let these people out jail, once incrcerated, the poor, over-crowded little cherubs.
Don't talk to us about living up to responsibility. We are not responsible for the actions of criminals.
"And, if someone tries a home invasion, it's likely that person can get that gun away from you."
Oh, that's too funny.
OK, imagine that you are a home invader. You have just broken into my home. I give you a cheerful "Howdy", while pointing a .357 magnum revolver at you. Now tell me exactly how you would go about taking it away from me.
Also, I must say, for someone who calls himself 'Son of Liberty', you don't seem to be a big supporter of liberty.
Guess what. Huffpo has what I think is their first pro 2A blog!
http://www.huffingtonpost.com/justin-callaway/mmix-2009-is-the-year-of_b_154727.html
Having read that piece, I believe it to be sarcasm.
Probably, but does he make some good points, like "police showing up late" and so on.
Thanks for an important article on the consequences of the Heller ruling. I'd like to also know what the impact has been in DC.
Do a little research.
Since a permit is still required to own a gun, one must go through an extensive background check. Then, the gun has to be purchased out-of-district, and transferred to the one and only DC FFL holder who has been designated to perform transfers, as there are no gun stores in DC. He charges $125 per transfer.
How many criminals do you think are lining up for that?
And there are still no carry permits being issued in DC. Heller allows for law-abiding citizens to have a functional firearm in their home for self-defense. That's all.
Most dealers charge about $30 to do a transfer. This sham in DC is designed to exclude the poor from exercising their constitutional right to self defense.
It's far too early to tell what the impact has been on DC, because the laws are still being negotiated.
However, when gun rights are restored to law-abiding citizens, the the crime rate almost always decreases or stays the same. It does not increase. There's no reason DC should be any different, so most people who are knowledgeable on crime stats predict a good outcome for DC.
"predict a good outcome for DC."
If they actually do go ahead and make the restrictions reasonable. Reading Major Tom's comment below, it looks like DC has a long way to go on that.
" ... the crime rate almost always decreases..."
I don't buy that.
There have been valid (non-NRA) studies done which have shown an increase ~ not a decrease ~ of violence in the presence of weaponry like guns.
It's easier to get a gun illegally than it is to get one legally. As with drugs that our illegal they are still brought into this country. So banning guns in this country would only stop the lawful person from owning one, not the criminals. As for lic. does that include us US Vet's who were trained by our gov?
There is no stopping a person who intends you harm, posions & bombs can be made out of household items. I happen to love the right to protect myself, my family & home with a firearm. If you do not like guns then don't buy one. Guns don't kill! People Kill! Just as knives don't kill in the hands of a cook but do in the wrong hands. So perhaps we should ban Knives also. The arguement against owning guns is a stupid one!
"So perhaps we should ban Knives also. The arguement against owning guns is a stupid one!"
Funny you should mention that. When violent crime skyrocketed in the UK after their '97 gun ban, criminals took to using pocket knives (and swords), so they were both banned. So, the bad guys started using cooking knives. Now they are trying to ban those.
There is also proposed legislation in the UK that would protect the rights of home invaders, not to physically harmed when they break into a home.
Rule Britannia!
Ban automobiles too! Too many people die from automobiles and traffic deaths. Some one should do something!
Most guns purchased on the street were once legally owned.
For criminals, stealing guns when the homeowner is not home, is almost as good as finding money laying around.
The more guns have become available=the more guns available on the streets.
So, if you disarm the law-abiding, the criminals will automatically turn in the thousands and thousands of guns they already have.
Please.
A good point ~ I agree, fightingtheright.
So does that mean we should ban cars because they often get stolen?
The way to deal with gun theft is the way you deal with all other forms of theft, you prosecute the offender and try to improve security measures.
Fine. We'll disarm the law abiding population. Then in a hundred years or more, when the criminals guns finally wear out, we'll all be safe.
That so-called logic didn't work in England where firearms offenses more than doubled from the initial passage of their handgun ban in 1997 to 2004. How did this happen when no one could legally buy a handgun?
The number of firearms in private hands is currently at an all time according to the BATF, yet our murder rate is at 5.6. Our nation's murder rate peaked in 1991 at 9.8, so how did this happen? Also, presently 40 states allow lawful citizens to carry concealed firearms with most of these laws being enacted after 1991.
If I read this post correctly the hopeful "gun owners" are all drug addicts and felons. I think that is misleading. The problem is not that citizens should not own guns but that guns should be harder to get and training and testing should be mandatory like driving a car. (Or is training mandatory already?)
There is nothing wrong with the purchase of guns by honest citizens. The murder rate is a social issue and I find it amusing that a majority of the same honest gun owners do not support more government social programs that could help reduce homicide rates no matter what the weapon of choice is in each case.
We don't need more social programs or laws, except maybe voluntary safety education. We already have many restrictions on who can legally buy a gun. The problem is criminals who disobey the laws that we already have. Enforce the laws and lock up criminals, and don't make it more difficult for law-abiding citizens to protect themselves. That is the solution.
Some of the most effective program fro reducing gun accidents has been the NRA's safety programs, including the Eddie Eagle program. The gun accident rate has been sharply reduced by improved safety education. If you want to support safety education, join the NRA, and get an instructor to do the Eddie Eagle thing at your kid's school.
Every time an innocent person is shot to death or maimed, I want to see an NRA member pay for it.
You want the right to own a gun?
Good...
You have to pay for the privelage until gun deaths are a thing of the past!
"The problem is not that citizens should not own guns but that guns should be harder to get and training and testing should be mandatory like driving a car. (Or is training mandatory already?)"
In all but , I believe two states, training is required for a carry permit .
I think guns are already hard enough to get, legally though. If you've been convicted of a felony, or you've been judged to be mentally ill, you won't pass the background check.
And no amount of anti-gun legislation is going to keep crminals from getting guns illegally. Not even a gun ban can accomlish that, hence the situation in DC and Chicago.
The problem is that when the "honest citizen" gets into a fight with a relative, it is easy to pull out a gun and finish it. The stats show that most homicides are committed by people who have a relationship to the victim.
The second amendment was placed in the constitution to make sure that we had a "well armed militia" as during those days we had no standing army. Times have changed; we have a standing army and there is no need for us to revert to the wild west days with everyone packing. We have the highest homicide rate of any country and the highest rate of gun ownership. I doubt that there is no connection between the two.
"The stats show that most homicides are committed by people who have a relationship to the victim"
Careful there. The stats show that most homicides are commited by acquaintances, not relatives. Most are commited by criminals, on criminals and often in the commission of another crime.
"We have the highest homicide rate of any country "
Not true.
The wild west days used the law to take guns off of "strangers" (tourists), not the locals.
The US is WAY down the list as far as international homicide rates are concerned.
http://en.wikipedia.org/wiki/List_of_countries_by_homicide_rate
Now to me, it doesn't matter if someone is murdered with a knife, or a gun, or by Colonel Mustard with the candlestick, dead is dead.
Actually, it isn't. Almost all of the countries above it are seriously nasty places to live in terms of fatal conflict. None of them are countries with which the US is most often equated such as North Europe, Canada, Japan, etc.
Dead is indeed dead. Usually about 30,000 dead-is-dead a year with guns About a third that many are made dead-is-dead from all others combined.
You neglect to mention as, you folks always do, that about 17,000 of the deaths you speak of are suicides. They are not a gun control issue. They are a mental health issure.
"Almost all of the countries above it are seriously nasty places to live in terms of fatal conflict."
Fails to refute what was written.
Give me a chance to avoid a knife or a bullet; I'll take the knife any time.
I'd rather be shot in a non-vital area, than slashed wide open so I can bleed out in three minutes. You really don't know what you're talking about.
http://www.nodc.us/2008NevadaDemocraticPresidentialCaucus.htm
John F. Kennedy said in 1960:
"By calling attention to "a well regulated militia" the security of the nation and the right of each citizen "to keep and bear arms" our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise tot he Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important."
And so the US, based on ancient laws, keeps its right to be the No. one developped country as far as murder and citizen insecurity is concencerned
Your assertion that America's violence is related to the 2nd amendment is laughable.
Even if you removed every single murder committed with a firearm, America's murder rate would still be over three times higher than any other western industrialized nation.
Also, the FBI's Uniform Crime Report estimates that 70% of all violent crime in this nation is the result of the illegal drug trade, not because private citizens own firearms.
And JFK was an NRA member!
Hubert Humphrey said in 1960:
"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used, and that definite safety rules of precautions should not be taught and enforced. Bus the right of citizens to bear arms is just one more guarantee against arbitrary government, One more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible."
http://www.nodc.us/2008NevadaDemocraticPresidentialCaucus.htm
Third world countries are full of guns and accordingly free of tyranny.
He was just trying to win his next election.
Are you joking? "Third-world" countries full of guns are HARDLY free of tyranny. Stop worshipping your gun long enough to realize what a ridiculous statement that was.
After WWI, Germany was a third world country, devoid of civilian owned guns. Look what happened there.
HHH was indeed trying to win his next election - by appealing to the beliefs and values of the majority of Democratic and general election voters at that time.
Let's see ... were our communities safer in 1960 than now? In 1960 I was in high school and I often walked down my street, alone or with some buddies, and out into the desert carrying a rifle or shotgun to go shooting and nobody turned a head.
Guns cause violence like knives and forks cause obesity.
Remember the 1968 anti-war Democratic campaign chant: "Dump the Hump!"
Yes! exactly! The best way to change someone's mind in a democracy is to point a gun in their face!!
Why did no one think of this before?
The US is NOT a democracy, it's a constitutional republic.
By the way, 73% of Americans believe in the individual right to private gun ownership:
http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx
So if the US was a democracy, your agenda to disarm the civilian population would still fail.
A little research wouldn't kill you guys, you know.
In spite of the preposterously high quantity of fire arms, the US citizens keep, they lost the more precious of their human and contitutional rights during the las years. Not a single shot was fired to preserve any of them. Many, many were shot in the perpetration of crimes.
We didn't take up arms to stop the 4th- and 5th-amendment violations because we thought that that quaint American custom called VOTING would still work. Silly us.
Oh, wait, it DID work....
And we'll keep our lawfully owned guns, thanks.
The notion that each and every thug who can afford to buy a gun is capable of being police force, judge, jury and executioner is beyond ridiculous. The US Constitution says nothing of the kind. Vigilantism is far more dangerous than any alternative.
Self defense is not vigilantism.
I feel sorry for people who think they need a permission slip from the government to exercise their natural right to self defense. Even a dog has the right to protect itself.
So now we're "thugs"?
"The notion that each and every thug who can afford to buy a gun is capable of being police force, judge, jury and executioner is beyond ridiculous. The US Constitution says nothing of the kind. Vigilantism is far more dangerous than any alternative."
No, but it does say "the right of the PEOPLE to keep and bear arms shall not be infringed".
And who's talking about vigilantism? Do youy consider someone defending his life, and the lives of his family against a home invader a 'vigilante'?
Sat., Nov. 1, 2008 SUMTER, S.C. - An ex-convict who thought he was being robbed gunned down a 12-year-old trick-or-treater, spraying nearly 30 rounds with an assault rifle from inside his home after hearing a knock on the door, police said Saturday.
http://www.msnbc.msn.com/id/27482694/
Mr. Hattori was looking for a Halloween party in the Baton Rouge suburb of Central on Oct. 17 when he and a companion mistakenly rang Mr. Peairs's doorbell, frightening his wife. The case became the focus of intense interest in Japan because it seemed to confirm the Japanese view of America as a place rife with guns. News of the verdict led newscasts in Japan on Monday.
"You have the absolute legal right in this country to answer your door with a gun," Mr. Peairs's lawyer, Lewis Unglesby, said today in his closing argument. "In your house, if you want to do it, you have the legal right to answer everybody that comes to your door with a gun."
http://query.nytimes.com/gst/fullpage.html?res=9F0CE4DD123AF937A15756C0A965958260&sec=&spon=&pagewanted=1
Right from the beginning on this a falsehood - "For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard."
Not true at all, some courts have - yes but not all... some courts had decided that this means 'right' as in not to be taken away - period.
Fact is that the 2nd amendment is there to keep the government honest as in to not yeild too much power over the people... i.e., allow us to organize and revolt if need be (I know sounds crazy in 2009 but I like it!!)
Correct. Prior to Heller, in the roughly 40 US Supreme Court decisions which mention, refer to, or quote either the Second Amendment or the right to arms, 38 of them supported the individual right reading. Unfortunately Brady and VPC have been all too effective at spreading their propaganda that the USSC had consistantly rulled otherwise.
Yep... and the problem with content like this is that it's a bold-face lie... let's start with truth, facts and clarity and go from there... keep the personal opinion out of the debate.
The National Guard no longer qualifies as a militia, since they were put under federal control in the name of the War on Terror, a couple of years ago.
Previously, the Guard of any state could only be called out by the governor of that state. Now, they can be called out by the president, without so much as a phone call to the governor.
"The National Guard no longer qualifies as a militia, since they were put under federal control in the name of the War on Terror, a couple of years ago."
At any given time only a small part of the NG is under federal control. The rest still fall under their respective states.
The problem with comparing the US to other countries is the US is not other countries. They do not have the same demographics. That right there makes any comparison invalid.
Well then I guess we can't fairly compare any group of people to any other group of people because those people are different people.
Any comparison will have the potential to be filled with errors and unmentioned factors. It is difficult enough to control for variances in education and economics. When you try to control for cultural differences it becomes nearly impossible.
Simply comparing the homicide rate of one country vs another controls for none of these things.
The fact is that in the US there has not been a corresponding increase in the homicide rate or violent crime rate to the number of firearms in circulation. Heck, you'd have better luck tying our crime rates to the 11-year sunspot cycle. Our crime rates fluctuate primarily based economics and education.
San Fransisco and Houston have completely different demographics so obviously there is no comparison their either right? So they should have completely different laws.
Hence our multi-tiered form of government.
You're correct, OE. Comparing a country like France, for example (where private ownership of guns IS allowed), to the US, is like comparing Washington DC to Mayberry.
Judge Richard Posner's critique of Nino's mono-gluteal opinion is very trenchant. It's probably still available on the New Republic website. I'm a gunowner who enjoys the hobby greatly, but I've gotta be realistic. Actually the first "gun control" ordinances were enacted by the cow towns patrolled by the likes of Wyatt Earp.
And subsequent early gun control laws were enacted in the south after the Civil War. The local sheriff got to say who could and couldn't own a gun, to keep guns out of the hands of the "wrong" people, if you know what I mean. The gun control movement in this country has a very racist history.
Now in places like NYC and California, concealed carry is allowed, but only for people who can convince officials they "need" it, in other words, the wealthy who can make large political donations. Self-defense is not for the little people.
Many countries have police who actually protect the people, or at least try to protect the people. They actually have foot patrols in many areas. The only time a cop shows up in America is after the fact. It doesn't help to have the police show up after your house is broken into and your family harmed. We need guns because we don't have effective police.
Wow, that's not a generalization, is it?
Actually it is pretty correct. I'll debate how effective our police are, but:
1. The police in the US are not under any obligation to protect individuals. The courts have held this to be true.
2. Police generally strive for a 5-minute response time in incorporated areas. That is a goal, not a standard. It is one they usually fail to meet.
3. Police usually only know that a crime is being committed when someone calls to tell them, meaning it has already begun or in many cases already been completed.
Most are underpaid. You get what you pay for. Why do you think our education system is far down the ladder? I'm surprised we have anyone who is willing to risk their own lives everyday to protect us for such low pay.
that has to hurt!
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