What is concerning here is that four of our current Supreme Court justices did NOT find the Second Amendment constitutional. And when Obama nominates his picks for the court, you can be sure where they will stand on this issue. Well, at least for now I can keep my guns. Woohoo! Of course I haven’t shot one in years….
Supreme Court finds individual right to own guns | Reuters WASHINGTON (Reuters) – The U.S. Supreme Court ruled on Thursday, for the first time in the nation’s history, that individual Americans have the right to own guns for personal use, and struck down a strict gun control law in the nation’s capital. The landmark 5-4 ruling marked the first time in nearly 70 years that the high court has addressed whether the Second Amendment of the U.S. Constitution protects an individual right to keep and bear arms, rather than a right tied to service in a state militia.
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Follow-up comment rss or Leave a Trackback“Well, at least for now I can keep my guns. Woohoo! Of course I haven’t shot one in years….”
CosmicWife must be a good woman. I don’t hunt, but I do keep in practice (just in case).
Yep, I figured that it would at least come down 6-3. If BarackO’ becomes President (cough cough) my only hope is that Kennedy will try to re-brand himself in some way from the “wishy-washy” Justice that swings both ways, to a “stalwart keen legal Constitutionalist.”
It’s a vain hope probably. Kennedy could just be a contrary jackass that lives to tick off the prevailing political forces. So, it is probably a vain hope.
What ticks me off about all of this is that we have as a nation decided to cede ultimate power to one branch. I know it’s a hackneyed phrase, but “9 lawyers in black robes” have hijacked 300 million citizens. It’s shameful. Sometimes I think it’s time for another Revolution.
Of course, I don’t have the stones to call for it (sigh).
I read the slip opinion. Scalia did a good job of doing what he hates so much and even states the legal maximum which he comes so very close to breaking: “the Constitution was written to be understood by its voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”
Scalia rightly acknowleges that the whole of the Amendment has to be taken into account:
“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.”
He did the best he could with the words he had.
Rules of ordinary interpretation could EASILY have led to the OPPOSITE conclusion (as it did with 4 Justices.) After all, if this amendment was SOLELY about an individual right to bear arms, the first two clauses of the amendment were ENTIRELY unnecessary; they were unnecessary verbiage.
All that is REQUIRED to arrive at the conclusion Scalia arrived at is “the right of the people to keep and bear Arms, shall not be infringed.”
Scalia comes very close to utterly ignoring the introductory two clauses of this amendment, doing something which he rips other Justices apart for doing, i.e., not addressing the plain TEXT of what was written, rather, going outside of the Constitution itself to understand the meaning of the Amendment. (Scalia acknowledges that the structure of the Second Amendment is unique in the document, but gives absolutely no weight to that very uniqueness, essentially dismissing out of hand the notion that the introductory clause limits, in any way, the “operative clause.”
I was on pins and needles. I wasn’t sure that it would come down this way. I was frankly worried about Kennedy. I was fairly certain how each of the others would vote.
I’m GLAD that the lower court’s ruling was affirmed, don’t get me wrong.
Scalia even addresed, in dicta, the nagging issue of the definition of “arms.” He makes sure that it is clear that “arms” don’t include military issue arms. I had to chuckle at his reasoning there since, at the time of the writing the very “people” who played such a role in his reasoning on the “keep and bear” portion of that phrase DID have the equivalent of military issue “arms,” indeed, what was actually brought into battle WERE their PERSONAL arms. Some private citizens even owned galleys with cannons.
But, from a policy standpoint, we CAN’T have people with fully automatic assault weapons running around town, so “arms” HAD to be defined as it was (even in dicta). Of course, arriving at the conclusion (public policy) and THEN providing the reasoning is something which Scalia often decries.
All in all, a good decision and a good read.
The article says: “…rather than a right tied to service in a state militia.”
I don’t know if that verbiage was lifted from the gun law under scrutiny, but I think they have the word ’state’ in the wrong place. The Amendment reads, ‘A well-regulated militia..’ ‘State militia’ seems like a contradiction in terms to me – likely not accidental in that regard.
My interpretation of the framers’ intent is that of some degree of organization around gun-owning groups, but that these would be purely civilian bodies. The word ‘militia’ and the phrase ‘the right of the people’ are key here. Gun clubs and shooters congregating at ranges would qualify in my mind. How are you going to form an effective ‘militia’ if you don’t own a gun and aren’t able to practice shooting it?
Regardless, I am satisfied with the ruling. I guess I won’t need to go bury my guns in the backyard just yet.
Too, I am wondering how this ruling will affect municipal gun prohibition laws and curfews.
Pace: We can expect a flurry of activity by “gun rights” groups as they attempt to strike down the more restrictive laws. I think it’s foolish to do so, frankly, as it invites the revisitation of this issue at a relatively early date. So long as the make-up of the court doesn’t change, that would be fine, but … lose one vote and the ACTIVIST justices who aren’t so constrained by stare decisis might just overturn this hard won victory.
This sort of thing drives me nuts. All this parsing of words and phrases. The Constitution was written by men who WANTED their intent to be understood, and as such they spoke and wrote about their intent on many occasions, most notably in the Federalist Papers, but also in published accounts of revisions of the articles and amendments themselves.
Thomas Jefferson was the driving force behind the Bill of Rights, and his intention to grant free speech, freedom of religion and gun ownership (among other rights) is well documented in other writings.
THERE IS NO DOUBT ABOUT THE FRAMER’S INTENTIONS, and anyone who claims that there is any doubt is either ignorant or disingenuous. It is absolutely inconceivable that they could have intended something else and then served as President for a combined 32 years in a society where guns were owned AND USED IN DUELS regularly without ONE of them saying “uh, guys, that’s NOT what we intended.”
The only legitimate argument on gun control is not what the founders INTENDED, but whether their INTENTIONS are still socially appropriate 250 years later.
And if that is the case, then it needs to be dealt with in an actual Constitutional Amendment, instead of through the legalistic, rhetorical parsing that occurs in the press and in the courtroom.
There is very little that irritates me as much as the suggestion that the framers intentions were not clear on such things. THEY WOULD HAVE TOLD US IF WE HAD IT WRONG!! THEY WERE THERE!! THEY RAN THE COUNTRY!! THEY BECAME PRESIDENTS, SENATORS, CONGRESSMEN AND SUPREME COURT JUSTICES!!! IT IS NOT AS IF THEY DIDN’T HAVE A CHANCE TO CORRECT ANY MISINTERPRETATION IN THE FIFTY YEARS AFTER THE CONSTITUTION WAS RATIFIED!!!!
Sheeeshhh. It’s like the people who believe that Thomas Jefferson would have approved of partial birth abortion.
Nitwits.
CC: Wow. Only one possible interpretation to the entire Constitution and it is apparent from the bare reading of the document!
And, in the “50 years they were there,” there WERE some significant battles over “what it meant,” weren’t there? Or has the very fact that we have a Supreme Court telling us what the Constitution means escaped your notice? — I can just see Jefferson scratching his head under his wig saying “Huh? I didn’t think that the Constitutions said THAT!” — (Of course, this decision didn’t take place until 1803…so, there was really only 25 years or so of SCOTUS review of what little was to be reviewed … not 50…)
In those “50 years,” there wasn’t a whole lot of change in any meaningful sense; there WERE few challenges to the meaning of the Constitution. This, of course, is because most everyone back then accepted the notion that each state was a SOVEREIGN NATION and could essentially pass whatever laws it liked and the federal government wasn’t all that powerful. (Even the “army” was composed of forces sent from the various States for the greatest part) This, of course, began its evolution in 1819, in McCulloch v. Maryland the case of the formation of the “Central Bank” where SCOTUS rammed the Central Bank down the throats of the several States over their objection in the first VAST expansion of SCOTUS (and federal) power through the interpretation of the “necessary and proper” clause. (As an aside…what exactly does THAT phrase mean, since the meaning of the Constitution is so clear?)
It wasn’t until well after the Civil War that the Federal Government began passing significant legislation affecting the several States. In fact, between 1803 and 1863, there were TWELVE cases in which SCOTUS rendered an opinion on a Congressional act. That number was exceeded in the NEXT FIVE YEARS.
So, it’s really difficult to maintain that “THEY WOULD HAVE TOLD US IF WE HAD IT WRONG!! THEY WERE THERE!! THEY RAN THE COUNTRY!! THEY BECAME PRESIDENTS, SENATORS, CONGRESSMEN AND SUPREME COURT JUSTICES!!! IT IS NOT AS IF THEY DIDN’T HAVE A CHANCE TO CORRECT ANY MISINTERPRETATION IN THE FIFTY YEARS AFTER THE CONSTITUTION WAS RATIFIED!!!!” when there wasn’t much in the way of either SCOTUS POWER (until 1803) or any significant number of CASES for them to review until after 1863.
This notion that “the meaning is clear” completely ignores the fact that language, by its very nature, is imprecise. Of course, the fact that “The Federalist Papers” were NECESSARY to convince people WHO HAD READ THE DOCUMENT that it DIDN’T mean what they FEARED it meant goes a long way to disabuse any notion that the Constitution’s meaning is “clear” or WAS clear even to those of the day.
Let’s again look at the amendment under examination:
“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.”
Let’s forget for a minute that a “Strict Constructionist” (as contrasted to a “Framers’ Intent) view instructs us to READ THE WORDS and to give them their ordinary meaning WITHOUT reliance on outside sources except to the extent necessary for clarity (whatever that means).
The first phrase, “A well regulated Militia, being necessary to the security of a free State” is a recognition of the TIMES where the saving of the nation was PERFORMED by “well regulated Militia[s]” thus, they were “necessary to the security of a free state.”
This is the REASON for the Amendment. How one can read the remainder of the paragraph without keeping in mind the REASON for the amendment eludes me. Certainly, when the REASON for the amendment (a militia who can be called upon to defend the nation who HAD THEIR OWN GUNS to bring to the battle) no longer exists or is diminished to near extinction, it would SEEM important.
Normally, Scalia is one for examining the WORDS OF THE DOCUMENT without relying on outside sources to determine “intent” (for what better evidence of “intent” can be found than the ACTUAL WORDS USED?). However, he was quite liberal in his casting about for outside authorities in this case (as he has been in some other cases when it suited him — as is the case with ALL Justices. He just does it LESS than anyone save Thomas.)
Here, since the reason for the Amendment was to have a “Militia” to call upon when the need arose, it is CERTAINLY a fair reading of the TEXT that any right to bear “arms” (whatever that means….still) would be CONNECTED to that MILITIA.
After all, one of the most BASIC rules of interpretation is that words will be given their effect rather than finding an interpretation which eliminates their meaning.
In this case, the first two phrases, “A well regulated Militia, being necessary to the security of a free State” are almost ENTIRELY RENDERED MEANINGLESS by Scalia’s “interpretation” of this Amendment, failing to give effect to this most basic rule of interpretation.
Nonetheless, I think it was a GOOD ruling, a NECESSARY ruling.
I just don’t delude myself that there is only one possible interpretation of the words used.
Oh..It should be Madison and Adams helping Jefferson to scratch his head…
Drax:
You are, as are most legally trained minds, simply overthinking this.
The men who wrote the constitution owned long guns and handguns as personal property and used them regularly.
They hunted. They target practiced. They fought duels. Alexander Hamilton DIED in a duel shot by Thomas Jefferson’s VICE PRESIDENT, Aaron Burr. You can parse and quibble the words all you like, I will judge their intent based on their ACTIONS and the way they lived their lives.
This practice of owning guns and using them as a matter of course was commonly accepted as obvious by citizens of this country for 200 years.
Quibble all you like. The reality is as I stated it. They meant personal gun ownership. They wrote personal gun ownership. They practiced personal gun ownership. Not a single one of the founding fathers who served as President or Supreme Court Justice EVER QUESTIONED the reality of personal gun ownership.
Find me the citation of George Washington, Thomas Jefferson, James Madison, James Monroe, Alexander Hamilton or even Benjamin Franklin CHALLENGING the ownership of guns in the country they just created and which they ruled for 32 years after the Constitution was adopted.
As I said, it is completely valid to question whether “arms” as described then can be reasonably applied to “arms” as described now, but to argue that our founders were not certain of the right of the people to own and use guns is simply preposterous. Utterly so.
“Right of the people to own and use guns” isn’t the question. Never was the question. Isn’t even on the table of questions to be considered.
The ISSUE is what the meaning of the words were intended to mean FOR FUTURE GENERATIONS. Clearly, the framers KNEW that the words they were drafting would be read, hopefully, by future generations, whose make-up they couldn’t even begin to imagine.
They KNEW that other States had, not “militia” but ARMIES. They knew that other States did NOT allow “the people” to own guns and use them for hunting but held the ability to wage war in the hands of the State. They wanted to ENSURE that such didn’t happen HERE. In the future. Long after they were dead. When their WORDS lived on.
And those WORDS are what are being examined, NOT what they INTENDED to say. They SAID what they SAID. So, ANY examination of what they MEANT has to BEGIN (and hopefully END) with an examination of what they SAID.
And, what they SAID was that the STATE couldn’t take the guns that the people so openly and legally possessed and used couldn’t be TAKEN from them BECAUSE such ownership was NECESSARY to form a MILITIA to FIGHT for the nation.
That was their JUSTIFICATION, the REASON given to PROHIBIT the State from TAKING what was CURRENTLY possessed, i.e., “the right of the people to own and bear arms….”
It isn’t an issue, never has been an issue, never will be an issue whether or not AT THE TIME “the people” had the right to own and bear arms.
What WAS at issue was whether, the WORDS of the 2nd Amendment, at a later date, could PREVENT the state from TAKING those guns — or, in the event that a “milita” (as then contemplated) was no longer “necessary” the State COULD take that right away.
Scalia adequately answered that question, I think.
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