Scott Hartnell, on 31 January 2013 - 06:29 PM, said:
One last comment on this. I find that both of the groups, whether pro gun or anti gun have a little trouble with the Second Amendment and the context in which it was added to the Bill of Rights. While I agree that the pro-gunners are trying to preserve a basic right, they are also attempting to skew it so it fits their agenda. The anti-gunners take it to the other extreme. If both of them would take the time to comprehend the actual language of the second amendment, which clearly states that 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" does not specify individuals having the right to possess firearms at all...it actually doesn't mention the individual at all. As you are aware I hope, this amendment was added immediately following the battle for independence from Great Britain. I think we're relatively safe enough from invasion that ordinary citizens don't need to arm themselves with high-powered weaponry. That's just my interpretation.
Unfortunately that is not the law.
That to me appears to be the correct interpretation and it was the one generally followed until the Heller decision when the in a 5-4 decision SCOTUS found a previously undiscovered individual right to bear arms independent of the well-regulated militia clause.
Even so the majority opinion still allows for gun control legislation as the opinion cited in my OP notes.
DISTRICT OF COLUMBIA v. HELLER (No. 07-290) 478 F. 3d 370 was a 5-4 decision.
And the four dissenting Justices noted that the majority opinion completely disregarded precedent and found a non-existent right.
IMHO the majority opinion was schizophrenic and terribly inconsistent as the dissents noted. Part of the majority opinion applied strict construction and referred to historical writings outside the Constitution to find as previously unknown individual right to bear arms divorced from the qualifier of the "well-regulated militia" prefatory clause. And then used what we call in Canada The Living Tree Doctrine "which, by way of progressive interpretation, accommodates and addresses the realities of modern life" to account for modern weapons.
Per Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.
The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.
Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).
In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.
Per Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment . The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not.
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.
The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.
In respect to the first independent reason, I agree with Justice Stevens, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.
Thus I here assume that one objective (but, as the majority concedes, ante, at 26, not the primary objective) of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted. In these circumstances, the District’s law falls within the zone that the Second Amendment leaves open to regulation by legislatures.
The dissent IMHO is much more cogent and rational and follows long established precedent. But that is not the law.
Edited by Wetcoaster, 31 January 2013 - 09:26 PM.