[enteltcheft]

The DC Federal Circuit court overturned DC's strict handgun ban based on an interpretation of the 2nd Amendment of the constitution as an individual right. The chances of this going to the Supreme Court are very good.

If the Supremes uphold this ruling it could basically invalidate most if not all of the gun control laws in the country, very much including those in NY State and City.

[tarmpriopay]

Until people start killing each other and go militant...

I think that the founding fathers NEVER anticipated this as a result of their amendment. I think what needs to be done is a rider attached to the amendment requiring the guns to be used in "support and defense" of their municipality. A de-centaalizing of the control, but one that would still make it possible for the state of Tennessee to "fight the oppression" of the US government at large.

IOW, a relinquishment of teh National Power and a return to a state-controlled assembly of political powers where millions of NY dollars do not go to Alaska to make bridges for logging companies.

[AndyScouchek]

This will affect NJ as well we have some of the toughest gun-laws in the nation along with NY.

Also JC mayor Jerrahmiah Healy enacted a gunlaw that would have prevented anyone who wants to buy a gun in JC at the only two gun stores we have, they would be only be able to buy one gun a month. It was overturned by a group of NRA. But then Mayor Healy went down to Trenton and propossed the bill and state wants to make it law for the entire state but now this stupid overturn in DC threatens to stop that as well.

Most of the guns used in crimes in NJ & NY come from out of state. A report came out that said 90% of the gun crimes commited in NJ came from Pennsylvania and Maryland as well as Georgia. These other states need to get on board unfortunately the are too damm redneck to give a damm.

[Msrwbdas]

FindLaw US Constitution: 2nd Amendment



Concord Monitor

Article published Mar 13, 2007

Editorial

The right way to read the 2nd Amendment

Monitor staff
Mar 13, 2007

More than 215 years after the Bill of Rights was added to the Constitution, Americans still debate what rights are included. Take the Second Amendment, which reads: "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." Even the commas (the first and third seem unnecessary) add ambiguity.

There is no U.S. Supreme Court case establishing precisely what right or rights the Second Amendment protects, but the justices may soon get the chance to change that. On Friday the federal appeals court in Washington, D.C., ruled that the capital city's near-total ban on having a handgun at home violated the amendment's protections.

The basic disagreement over the amendment concerns how to make sense of the first half of the sentence. One view recalls the founding fathers' distrust of standing armies and says the amendment was written to protect only the ability of the states to defend themselves against the prospect of a despotic federal regime. This reading guarantees citizens' right to have a firearm at home only insofar as they must be able to bring a weapon with them if the state calls out its militia.

Although it offers an explanation for the mention of a militia, such an interpretation is unsatisfactory. The members of the first Congress, which created the first 10 amendments, could have guaranteed merely the right of the states to maintain a militia. They chose instead to guarantee the right of the people to keep and bear arms.

The wording suggests that the founders were thinking of the frontier as well as the federal government - and that they sought to protect individuals as well as the states.
It's problematic to speak of what the founders believed because they were rarely unanimous. For some it was essential that the new federal government not threaten the character and basic sovereignty of the states. For others it was even more important to guarantee individual liberty. The Second Amendment seems best understood as the ultimate in committee work: a sentence with something for anyone concerned with the new federal power.

That's the side of the debate the appeals court came down on. Remarkably, the decision is at odds with most, though not all, other appeals court analyses of the amendment.

The one time in the 20th century that the Supreme Court dealt squarely with the Second Amendment, back in 1939, it said a ban on the interstate transportation of short-barreled shotguns did not offend the ability of states to maintain a militia. The ruling was no less ambiguous than the amendment itself, however, on the question of whether there is an individual right to keep a pistol or a rifle that might never be used in defense of the state.

Given that the D.C. law has stood for 30 years, it's a fair question why only now there are Second Amendment implications. Separately, there is a case to be made that gun laws are appropriately more or less restrictive in different parts of the country and that even a broad reading of the Constitution must allow legislative bodies considerable latitude to maintain public safety.

That last concern deserves careful attention if the D.C. case is appealed and should be part of all future gun-law reviews. Still, such cases should begin where the D.C. court began. The best understanding of American history is one that recognizes an individual's right to bear arms.


Working Hard to Misconstrue the 2nd Amendment

By Robert J. Spitzer

Mr. Spitzer is Distinguished Service Professor of Political Science at SUNY Cortland. He is the author of eleven books, including The Right to Bear Arms and The Politics of Gun Control.

In a startling case that may single-handedly revive interest in the Second Amendment’s “right to bear arms,” the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 Friday that a D.C. law barring residents from keeping handguns in their homes violated citizens’ Second Amendment right to have guns, aside and apart from service in a militia. In carving out an “individual” right, the case of Parker v. District of Columbia proves that bad history makes for bad law.

In its 58 page ruling, the two-member Parker majority contradicts nearly fifty other federal court rulings spanning seven decades, as well as four Supreme Court rulings, all of which support the straightforward proposition that the right to bear arms exists only in connection with citizen militia service. For all of the dissembling by gun rights advocates, the amendment’s full wording is pretty clear: “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.” As Supreme Court Chief Justice Warren Burger once noted, the amendment “must be read as though the word ‘because’ was the opening word.”

Alone among federal rulings siding with the Parker majority is a 2001 case from the Fifth Circuit, U.S. v. Emerson, when for the first time a federal court embraced the “individualist” view. Yet even this case offered little meat to supporters of the individualist view, since the Emerson court upheld Timothy Joe Emerson’s prosecution for violating a federal gun law (he was later convicted). Until Parker, Emerson had been ignored not only by the other circuits, but even by other Fifth Circuit courts.

While accepting a militia basis for the Second Amendment, the Parker court concluded that the amendment also “protects an individual right to keep and bear arms . . . for such activities as hunting and self-defense,” with the latter encompassing “either private lawlessness or the depredations of a tyrannical government.” Parker’s linchpin for this sweeping conclusion is its assertion that the reference to “the people” when read “intratextually” (that is, assuming it has the same meaning throughout the document) “leads us to conclude that the right in question is individual.” Since Americans had a “pre-existing right” to protect themselves and hunt, these activities must also have come under the umbrella for the Second Amendment, they assert. The problem with this assertion, aside from the fact that the Bill of Rights was the product of many hands, is that no evidence supports it. All of the debate in the First Congress concerning the right to bear arms dealt with military matters. Worse, Parker’s claim conflates very different rights.

Individual self-defense was protected for centuries under the common law, just as modern criminal law recognizes legitimate personal self-defense. It had and has nothing whatever to do with the Second Amendment. And the invocations of an armed citizenry struggling to overthrow a tyrannical government arose from natural rights, not from the Constitution or the Bill of Rights. When Americans fought to end British rule, they were not only fighting against the British, but for their own, indigenous American government. Once that struggle was won, Americans traded violent overthrow for peaceful change – through the ballot box, the jury box, and the petitioning of their new government for the redress of grievances. The notion that the Second Amendment somehow enshrines a right of revolution for Americans contradicts the very idea of peaceful governance. In fact, as the Constitution says, militias are to be used to “suppress insurrections,” not cause them. And the only attempt to include hunting in the federal Bill of Rights, arising from Pennsylvania, was defeated.

More bothersome in this federal court ruling is its failure to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about. More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen’s right to privately bear arms; instead, it protected the “keeping and bearing of arms” so that the government could not be deprived of “their rightful resource for maintaining the public security” or “disable the people from performing their duty” to the government. And in 1894, the Court upheld a Texas law “prohibiting the carrying of dangerous weapons” in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

The Parker majority does devote considerable analysis to the most recent Supreme Court case on the Second Amendment, U.S. v. Miller (1939). Here again, the court labors to reformulate the meaning of a case that is perfectly clear. As Judge Karen Henderson noted in her dissent in Parker, Miller declares that “the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual states.” Indeed, the Miller court stated flatly that the Second Amendment must be interpreted by its “obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias] the declaration and guarantee of the Second Amendment were made.”

The Parker majority view, however, asserts that Miller protects only a “weapons-based” right focusing “only on what arms are protected by the Second Amendment,” because the Supreme Court upheld Miller’s conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines, as possession of that weapon held no “reasonable relationship” to a militia. Parker’s twisted logic is that the Second Amendment is about protecting weapons ownership if the weapon has military utility, from assault rifles and bazookas to tactical nuclear weapons. The absurdity of Parker’s argument underscores its desperation to achieve its real goal: to overturn the Supreme Court’s Miller decision.

Parker’s bald judicial overreach abuses history and law to achieve a partisan political end – to paste into the Constitution a personal right to own guns. Its effort is an affront to the militia tradition, constitutional history, settled court precedent, and common sense.

[Stovegeothnon]

Parker’s bald judicial overreach abuses history and law to achieve a partisan political end – to paste into the Constitution a personal right to own guns. Its effort is an affront to the militia tradition, constitutional history, settled court precedent, and common sense.

In most Americans' minds this happened on the day it was written.

Those Founding Fathers ... !

But they weren't really up on using commas to clarify a sentence.