Carl Hitchens - tracking the self …
Carl Hitchens - tracking the self …
2013
The Right to Bear …
"[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."
“The Supreme Court in two recent rulings (2008 and 2010) put to rest the legal, if not the moral, ambiguity of citizen gun rights, deciding in favor of the Second Amendment guaranteeing gun rights as an ‘individual right’…”
The Supreme Court in two recent rulings (2008 and 2010) put to rest the legal, if not the moral, ambiguity of citizen gun rights, deciding in favor of the Second Amendment guaranteeing gun rights as an "individual right" that could not be usurped by state and local governments. Being that the Constitution defines the federal government's role and responsibilities, it too is legally bound to ensure and protect the rights of citizens. The court noted that gun ownership
was bounded (as are all rights of citizens) to "lawful purposes" (making it subject to oversight and regulation within Constitutional boundaries).
On Monday, June 28, 2010, the Supreme Court ruled in a 5 to 4 decision (McDonald v. Chicago) that the Second Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments.
This decision extended the 2008 Supreme Court ruling (District of Columbia v. Heller) stating that the "Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." Thus, it established an individual right to gun ownership beyond the purview of military service. While this ruling referred specifically to federal laws and federal enclaves such as Washington, it decisively defined gun ownership to be an individual, stand alone right not restricted to the "well-regulated militia" qualifier often argued as the presumptive intent written into the Constitution.
Writing for the court's dominant conservatives, Justice Samuel A. Alito Jr., stated "It is clear that the Framers … counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." (Alito, along with Justices John G. Roberts Jr., Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas were in the majority, with Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor dissenting.)
Alito went on to clarify that the court in its 2008 decision ‘was not casting doubt on such long-standing prohibitions on gun possession by felons and the mentally ill, or keeping firearms out of "sensitive places" such as schools and government buildings.’
"We repeat those assurances here," the justice wrote. "Despite municipal respondents' doomsday proclamations, [the decision] does not imperil every law regulating firearms."
In dissent, Justice Stevens said [the decision] "invites an avalanche of litigation that could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right -- the precise contours of which are far from pellucid — under a standard of review we have not even established."
Justice Breyer objected [to the majority decision] He disagreed it [gun ownership] was a fundamental right, that the court was restricting state and local efforts from designing gun-control laws that both fit their particular circumstances and saved lives.
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In District of Columbia v. Heller, the Supreme Court reasoned that the Second Amendment's prefatory clause, i.e., "[a] well regulated Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history comported with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule.
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<http://constitution.findlaw.com/amendment2/amendment.html#annotations>
[Odd reasoning: If the prefatory clause,"a well regulated Militia, being necessary to a free State" announced the purpose of the Second Amendment and the operative clause "the right of the people to keep and bear Arms, shall not be infringed" referenced operational imperatives (as the Supreme Court suggests), would it not make sense that the intention was to conflate the two in some proscribed dependency? If not, would not the writers have treated militia concerns and individual gun rights as separate and distinct issues, instead of entwining them in some vague connection open to wrongful interpretation? Unless, of course, they were being purposely obscure to appease opposing points of view—throwing a bone to every vested interest like those hidden riders attached to bills in Congress these days.]
In McDonald v. Chicago, the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.
The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty.
Further, the Court distinguished United States v.Miller, in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes.
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<http://constitution.findlaw.com/amendment2/amendment.html#annotations>
[Translation: The Supreme Court heard the case on March 30, 1939 and decided in favor of the United States, whose attorneys argued four points:
1. The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
4. The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.]
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<http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution>
Four members of the majority said the amendment was "incorporated" through the 14th Amendment's guarantee that the states may not "deprive any person of life, liberty, or property, without due process of law."
Thomas agreed with the outcome of the case but said the right was more correctly located elsewhere in the 14th Amendment, in a clause that forbids laws that abridge "the privileges or immunities of citizens of the United States."
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The bottom line is that the Second Amendment is not threatened. Even if a future Supreme Court decision overturns the 2008 and 2010 rulings, the Second Amendment will still be in place as a part of the Bill of Rights. The right to bear arms is not in question. The equivocation of the language is where the problem lies. Do I have the right to defend my home and person with a pistol or a howitzer? Hmm …
Carl
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Washington Post source information:
Barnes, Robert and Eggen, Dan, Washington Post Staff Writer.
Supreme Court affirms fundamental right to bear arms. Tuesday, June 29, 2010.
Washington, D.C.: The Washington Post Company
Gun Law and Order 3
2/2/13
The nuancing between "keeping" the peace and "making" the peace"—the gun debate.
This is a series of separate blog posts that I have done regarding the Second Amendment and gun rights … a kind of point of view montage, if you will.
There are multiple aspects of the “right to bear arms” from self-defense to freedom from tyranny, which pushes people’s buttons. And because it is a hot button issue, people have a tendency to lock onto one “feeling point,” and shut off from other opinions or facets of this issue.