Tag: Second Amendment

BTD has noted the dissent of Justice Stevens in today's decision in McDonald v. Chicago (opinion here) which holds, finally, that the Second Amendment is applicable to the States.

The majority opinion was written by Justice Alito. (This is probably the first time I've ever agreed with him.)

It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [More...]

Here's a thread for reactions, your own and others, to today's Supreme Court decision in D.C. v. Heller. I have provided selected quotes from the opinion here.

Update: D.C. v. Heller has been released. The Supreme Court, in an opinion by Justice Anton Scalia, has affirmed that the D.C. handgun ban is unconstitutional:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home.

The opinion is here.

I will update with selected quotes below as I go through the 157 page opinion. First quote:

Bump and Update: The Court did not issue an opinion today in D.C. v. Heller. Scotus Blog says the Court announced all remaining decisions will released tomorrow at 10:00 am ET.

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Original Post

Awaiting the Supreme Court's Second Amendment Decision

Will today be the day the Supreme Court issues its long-awaited opinion in D.C. v. Heller, deciding the constitutionality of D.C.'s handgun ban and settling the question of whether the Second Amendment conveys an individual right to bear arms?

Several court watchers think so. Concurring Opinions believes it will be authored by Justice Anton Scalia, who has yet to write an opinion in the March sitting cases. Heller is also the only case remaining among the March sitting cases. [Hat tip Instapundit.][More...]

The Supreme Court heard oral arguments today in the case involving the DC handgun bill which should decide whether the Second Amendment conveys an individual right to bear arms.

The Supreme Court appeared ready Tuesday to endorse the view that the Second Amendment gives individuals the right to own guns, but was less clear about whether to retain the District of Columbia's ban on handguns.

...Several justices were skeptical that the Constitution, if it gives individuals' gun rights, could allow a complete ban on handguns when, as Chief Justice John Roberts pointed out, those weapons are most suited for protection at home.

"What is reasonable about a ban on possession" of handguns?" Roberts asked at one point.

That's my problem with the D.C. bill and politicians who claim to support an individual rights' theory but then support every restrictive bill on gun rights. The "reasonableness" test is too vague and open to interpretation.

Where does reasonable regulation end and infringement on an individual's rights begin? [More...]

The Supreme Court will hear oral arguments in the D.C. Handgun ban case, District of Columbia v. Heller, this week.

A decision isn't expected until the end of the Court's term in June. Will we get a definitive statement on the meaning of the Second Amendment?

Via Instapundit, here's a recent poll from USA Today on where Americans stand on the issue:

Nearly three out of four Americans — 73% — believe the Second Amendment spells out an individual right to own a firearm, according to a USA TODAY/Gallup Poll of 1,016 adults taken Feb. 8-10. Yet for decades, federal judges have seen the Constitution differently, allowing a range of gun-control measures imposed by governments seeking to curb gun violence."

TalkLeft is a strong supporter of the belief that the Second Amendment conveys an individual right to bear arms.

Not surprisingly, here, there and everywhere.

He believes (as do I) that the Second Amendment conveys an individual right to bear arms. But, he supports reasonable regulations on those rights. So where does reasonable regulation end and infringement on an individual's rights begin?

Obama is actually straddling the issue somewhat like the Bush Administration did when it filed a brief in the [D.C. gun] case last month. He does support individual rights, but says—and this is the qualifier--the government can impose reasonable restrictions on gun ownership. And he then suggests that pretty much any existing laws are reasonable.

Here's Obama's position and the video of his remarks. Shorter version: He straddles.

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Finally. After almost 70 years, the Supreme Court has agreed to decide a case that may decide, once and for all, whether the Second Amendment confers an individual right to bear arms.

I believe it does. The Second Amendment provides:

"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 three principal views: The individual view, collective view and an intermediate one.

Under the individual view, a person has a personal right to bear weapons or arms regardless of whether they are members of any militia or engaged in military service or training. We therefore may bring claims or defend claims based on that right, just as we can with other provisions of the Bill of Rights, such as the right to free speech or right to be free from unreasonable searches and seizures.

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Is Rudy Giuliani running from his gun control message of years past, or his new message saying he's a Second Amendment supporter?

Rudy Giuliani is in Denver, but he canceled plans for a $1,000. a person fundraiser due to the Virginia Tech shootings. The parking valets were already in place when the cancellation notice was received -- just 30 minutes before the start of the event.

On this day of national tragedy, when we lost some of our finest to this senseless act, we stand together as a country to mourn those who lost their lives," Giuliani’s statement read. "My thoughts and prayers continue to be with the survivors and the many friends, colleagues and family members of those who perished. May God bless them all."

Is that really the reason?

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Good news for those who, like me, believe the Second Amendment confers an individual right to bear arms. The D.C. Circuit Court of Appeals today holds it does. The opinion is here.

Covering the decision extensively: How Appealing, Instapundit, Volokh Conspiracy and Cato.

As Volokh notes, this is not the first federal appeals court to rule this way. The 5th Circuit did in U.S. v. Emerson, which I wrote about here, when contrasting with the 10th Circuit position.

My bottom line on the issue hasn't changed since 2002 when I started TalkLeft:

Being for the Second Amendment doesn't mean defense lawyers are not liberals. It means they won't give up any constitutional right, even ones they may not exercise personally. Give 'em an inch and.....besides, the Second Amendment is only one away from the Fourth.

The Tenth Circuit Court of Appeals joins a growing number of circuits in holding that the Second Amendment does not confer an individual right to bear arms (pdf). For those who haven't read it lately, the Second Amendment says:

“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 court reaffirms prior decisions holding that:

...to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a “well-regulated” “state” “militia.”.... The Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia.

The Court notes that the 5th Circuit (which includes Texas) is the only circuit to hold the Second Amendment conveys an individual rather than collective right to bear arms. In the Emerson case in the 5th Circuit,

The Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.”

Here's where the other circuits stand: