Second Thoughts and Second Guessing: Second Amendment and the Supreme Court 2008

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.

So the Supreme Court of the United States - the same crowd who imposed Bush, Cheney, et al on America in 2001 - is going to take up a second amendment case. They are going to determine whether the virtual ban on handgun ownership in the District of Columbia is constitutional.

Anyone care to bet which way the 2008 Supreme Court (now with even conservier Conservatives) will go on this one? Antonin Scalia shoots ducks with Cheney, for God's sake.

Given the right wing wackiness that prevails in The Chamber, it's entirely feasible that the decision will make it legal for stem cells to conceal and carry machine pistols in order to fend off researchers and abortionists.

And isn't it convenient that somehow the court has decided to take up the issue in an election year? No reason to suspect collusion with the NRA there. Nope. None whatsoever. Not a bit.

How hard will the mainstream media fall for this one? How much time, energy, and effort will they crap away trying to corner Democratic candidates on this polarizing issue this campaign cycle? Time and effort that might be better spent having the candidates and parties address Iraq, the economy, and the burgeoning tsunami of global ecological crises, among other things?

How much fear and loathing will the issue inspire on both sides? How much lip service will the Democrats pay to hunters and gun ownership? How much money and anti-Democratic campaign literature will the NRA infuse into scaring the crap out of their membership?

Can you see the "Pro-gun Democrat" hunting photo op if Hilary wins the nomination? Hilary in a camo pants suit, kneeling beside a dead 12-point buck, the dead animal's tongue lolling, a still-smoking 30-06 in the crook of Hilary's arm.

I can't determine the gun ownership intent of the Founders. Given the absolute lack of wisdom the Supreme Court exhibited in Bush v Gore, I doubt they can either.

I do know that the Second Amendment was written in an era when "rapid fire" meant three shots a minute tops - and when the majority of the population lived in a rural environment. I just Googled "Uzi rate of fire" and found asset of specifications that say a "Micro Uzi" has a rate of fire of 1700 rounds per minute.

Maybe the best compromise would be to allow the people of the District of Columbia to keep and bear weapons that the Founders would recognize - flintlocks and dueling pistols - that sort of thing.

Had they known it would be possible to fire 1700 rounds per minute from a handgun, the Founders might have worded the second amendment more precisely. But they didn't know, and the wording is what it is.

And the same folks who brought you George W. Bush in the first place are about to smear the gun control issue all over the 2008 election cycle.

Gosh thanks, Supreme Court. You really shouldn't have.

Comments

[Thirdpower]

Mr. Smith,

You do realize that fully-automatic firearms are heavily restricted in the United States and that there are probably less than a few dozen legal "mini-Uzi's" in this country, right?

[freebird1836]

from "Court Sets Its Scope on Handgun Ban"
NICK TIMIRAOS
WSJ November 24, 2007

"The plaintiffs have charged that the National Rifle Association tried to prevent them from pursuing the case, going so far as to push for a legislative repeal of the District of Columbia handgun ban so the case wouldn't have standing. "I myself was skeptical about the risk-reward ratio of this test case," said Nelson Lund, a constitutional law professor at George Mason University, who holds a professorship endowed by the NRA.

The NRA's Wayne LaPierre acknowledges considerable "back and forth among lawyers" about the merits of bringing the case given uncertainties over how the court would rule"

. . . not to mention wondering how fast the NRA's membership will evaporate if the court rules unambigously in support of the individual right to bear arms.

[JonQPublius]

Some points I haven't seen raised yet:

1) the entire bill of rights is focused on individual rights. There were great fears that the Constitution had created a central government with too much power. As a solution, the bill of rights was passed with a clear purpose: to specifically identify a number of rights (speech, religion, assembly, keep & bear arms) that would remain with the people. The predecessors of these (including the 2nd Amendment's predecessors" in prior state constitutions, also clearly grouped this right with others as an individual right.
2) Freedom of the press is held to have grown along with the technical advances of radio, tv, internet - even though none of those could have been imagined by the writers of the Constitution an bill of rights. Ergo, technically advanced personal arms are still covered by the 2nd amendment. From writing a pamphlet at 5 wpm to typing 60 wpm, and from loading a muzzleloader once a minute to firing a handgun at a much faster rate - there is no abjuration of the rights of the people: to free speech, to assemble, and to keep and bear arms.

[Melodyl]

Peter sounds like you may want to put another layer of Foil around your head. The Helicopters are circling.

Ohh, those Pesky NRA people are pulling the strings again, Everybody"s against you and your friends Peter. Next the Salvation Army will be making crank calls to you. Just because everyone in the country is not in lock step with you or your beliefs does not make them wrong. The Supreme Court hearing a case on the Bill of Rights is a horrible thing. Peter it"s a thing called a democracy.

You like a thing called the freedom of speech; it"s called a right peter. Second Amendment Peter a right. There are many more you may want to read them sometimes.

[NYCexile]

Big cities, white police, black underclass.

Gun control=racism

[1will]

"Had they known it would be possible to fire 1700 rounds per minute from a handgun, the Founders might have worded the Second Amendment more precisely."
You cannot fire 1700 rounds per minute from a handgun. That's another made up anti gun "Fact." You would need a belt fed handgun (like a machinegun) or a handgun with a 1700 round magazine. Good luck finding that. The 1700 rounds per minute is the cyclic rate of fire. This is the theoretical max rate of fire if you could load 1700 rounds into the gun.
A huge number, if not the majority, of anti gunners really know nothing about guns. When you guys put out "facts" like a handgun that fires 1700 bullets per minute it makes us gun owners doubt your intentions towards allowing gun ownership. Once you do it a few times we begin to suspect your new and improved "Common Sense" gun control laws. Showing machineguns when talking about semi automatic firearms (that only go bang once when squeezing the trigger) also gives us some worry.

[1will]

"I do know the Second Amendment was written in an era when rapid fire meant 3 shots a minute tops."
It's true that when The 2nd Amendment was written you could only fire about 3 shots per minute. It's also true that the average citizen could own the exact same weapon as the military. You could even own those deadly rifles that were even more accurate and deadly than the military smoothbore muskets.
Do I want everyone to have the exact same weapons as the military? No. I do doubt The Founding Fathers would worry much about repeating arms. I think they would be more concerned with killers using these arms and being allowed in and out of our penal system.

[1will]

"Maybe the best compromise would be to allow people of the District Of Columbia to keep and bear weapons the Founders would recognize-flintlocks and dueling pistols-that sort of thing."
Great idea. Maybe we can also restrict their freedom of speech to 18th century English-something The Founders would recognize.
Maybe we can restrict their freedom of the press to primitive hand operated printing presses-something The Founders would recognize.
Of course the DC residents can only practice religions established during the 18th century.
I suppose criminal punishment should also go back to 18th century standards-something The Founders would recognize.

[Chris24Ruh]

We are guaranteed the right to bear arms, but what exactly are "arms?" If I take a literal interpretation of the 2nd Amendment it seems that our founders wanted to give is the right to bear muzzle-loaded muskets. A more expansive reading might mean something like an Uzi, since that would seem to be some kind of modern equivalent of a musket. But is an RPG or shoulder-mounted missile also an "arm" I have the right to "bear?" With a flintlock on one side and a suitcase nuke on the other, what are the arms we have a right to bear? If we agree that none of us gets to own an rocket-propelled grenade, then we have to ask "why?" If the answer is that it is too much lethal power in one weapon we then have to ask what is the approved amount of lethality each of us can bear. Answer this and we've answered the question of what "arms" we have the right to "bear."

[shedances]

Hi Peter ~ Don't lose heart just yet.

I don't believe the high court would be too keen on interfering with certain state's rights, esp. when it comes to gun laws that are supported overwhelmingly by their citizenry ... as it would be a disastrous future situation. Despite arguments that Miller was an ambiguously-written opinion, the lower court was wrong, IMO, in its (HIGHLY controversial) decision to overturn the state's handgun ban, particularly on the basis of their reading of the 2nd Amendment.

On another note:

I'm sorry to see, too, that you have a slew of gunnut "trolls" (& that's exactly what they are, BTW) whom I've encountered on a couple of gun control advocacy sites that I post on ~ like the Brady Campaign to Prevent Gun Violence ~ here ... knocking at your door.

Don't expect too much wisdom out of them!

LOL,

KELLI

[fact finder]

Try this scenario: could be, could not be. The court rules that it is not an individual right. This happens in the Spring of 2008. People refuse to give up their guns. Civil unrest. Martial law and who comes to the rescue of Bush.? Try Blackwater,Dyncorp, Triple canopy and the other PMG's. Like I said could be may be not. Scary though. Remember the Iraqi Government has stated that they want all PMG's out of Iraq.

[fact finder]

The amendment does not say, The right of the Militia shall not be infringed it says the right of THE PEOPLE as in ' WE THE PEOPLE OF THE UNITED STATES.'No where does it say the right of the MILITIA in the Constitution.

[Colin742]

The right of the people to keep and bear arms, shall not be infringed."
"A well regulated Militia, being necessary to the security of a free State".
In any ruling, the Supreme Court must also take into account the PURPOSE of the Constitution as defined in the first paragraph. In this case the Court must consider "insure domestic tranquility" and "provide for the common welfare". "Bear arms" is a military use term. One does not say he has gone bearing arms to shoot a deer.
Guns (poisons, drugs, gunpowder now regulated) were freely available in the 1700"s. The 2nd Amendment was to authorise the formation of Militias for mutual protection (against Indians or invaders) which were prohibited by the British (a crime of insurrection".
Victims of Columbine and other mass killing would NOT say that the current system "insures domestic tranquility" or "provides for the common good". The court should rule the State can introduce some controls like they do for other potentially dangerous items. There would not be votes for excessive gun control. Is there any civilian purpose for a gun spraying bullets or penetrating armour?
However, this Court has ignored the constitution before, may rule in favour of the NRA and the US gun death rate will continue to be 10 times higher than Europe. The USA, 1st in gun deaths, 37th in health care.

[1will]

Micro Uzis.
The typical anti gun argument. Compare firearms ownership by law abiding citizens to submachineguns.
By the way, that micro uzi doesn't really fire 1700 rounds per minute. That's the absolute highest number it could fire if you didn't have to reload it when the magazines (clips) are empty.
After attacking the more Conservative members of the Supreme Court maybe we should look at your buddies on the Left.
There's the justices that believe the government can take your home so your city can make way for a strip mall.
There's the justice that believes one man one vote is obsolete and minorities should get more votes than those ethnic majorities.
Finally there are all of your Liberal justices that believe instead of looking at relevant information such as the writings of The Founding Fathers we should instead look at world law. Great idea. Let's interpret our Constitution by Sharia Law or Ugandan Civil Law. That's much more relevant than the words of those that wrote The Bill Of Rights.

[SamThornton]

I'm not a gun nut. The only gun I've ever owned was a WWII-era Japanese Arisaka Type 38 6.5x50mm rifle, a version of the original Mauser design. I inherited it from a relative, never fired it, and somehow lost it in a move.

Granted that the language of the Second Amendment seems to clearly associate a right to arms with their use in a militia (even the phrase "bear arms" has an exclusively military connotation), as a crazy, radical, left-wing Liberal who still thinks Socialism has some selling points, I'm inclined to side with the NRA on this one, for two reasons:

1) By custom, backed by state and local laws throughout the US, a long-standing tradition of allowing citizens to possess firearms for hunting and for defense against criminal threats has been well established.

2) The success of an armed populace in Iraq to fight the world's greatest military machine in history to a standstill argues that there really is an alternative to knuckling under to the power of unpopular brute force.

The former argues for an individual right to own arms irrespective of the Second Amendment. The latter makes the NRA point that an armed citizenry may really be the best defense against government tyranny.

As the much-maligned Donald Rumsfeld famously remarked, "Democracy is messy." Perhaps some of its saving messiness lies in a well-armed population.

[CriminallySane]

It all makes me wonder just what part of "well-regulated militia" the gun nuts fail to understand.

[NABNYC]

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.

There are two different versions, one puts a comma after the word "Militia," and one does not. The comma after the word "Militia" makes the whole sentence absurd. If there is no comma, it is clear that the right of the people to keep and bear arms was only for the purpose of localities having a local militia.

Beyond that, only a right-wing neocon like those on our Supreme Court would "interpret" the word "arms" to include every possible weapon that it is capable for some person to hold in their arms.

Small nukes, according to the right-wing, should be okay. A truly strict construction would require looking at what "arms" existed at that time (muskets?) and construing the second amendment to mean that individuals, at most, can own a shotgun. Not automatic weapons, not handguns, no nukes.

This is not a constitutional debate. It is yet another dispute between the right-wing fascist view that corporations can and should control the entire country, and the people on the other side who believe that the rights of the individuals in the society should be paramount.

[philistine]

This issue is clearly a stalking horse. Given that fact, for once I actually hope the candidates avoid this issue. It should be taken up after a presidential election - not before; and it can't be any coincidence that the issue comes up before the Federalist Society meetings that the Supreme Court has become.

This country has to undo so much damage to its political institutions. I hope it has the strength to see it through.

[Kundera]

I find it amusing that all those who claim Bush is scrapping the Constitution are more than willing to scrap the 2nd Amendment.

"the right of the people....."