WSJ - 2nd Amendment case

[red-beard]

http://online.wsj.com/article/SB117384168237936437.html?mod=opinion_main_comment aries

Second Amendment Showdown
By TED CRUZ
March 14, 2007; Page A14

Last week's decision, striking down the District of Columbia's ban on guns as unconstitutional under the Second Amendment, flowed directly from the text, history and original understanding of the Constitution. The U.S. Court of Appeals for the D.C. Circuit's decision rejected the Ninth Circuit's "collective rights" theory and embraced instead the Fifth Circuit's holding that the Second Amendment protects individual rights. In so doing, the D.C. Circuit took a major step forward in protecting the rights of gun owners throughout the country.

In some ways, the decision should not be at all noteworthy or surprising. After all, the text of the Second Amendment explicitly protects "the right of the people to keep and bear Arms," and the D.C. gun ban amounted to a complete and total prohibition on citizens owning operational firearms in the District of Columbia. The challenged city ordinances prohibit the private possession of all handguns and also require that all long guns (i.e., rifles and shotguns) be disassembled or have trigger locks in place at all times. This latter requirement has no exceptions -- so that even if a violent crime is underway in your home, removing the trigger lock in self-defense or in defense of your family constitutes a crime.

No state in the union has a prohibition as draconian. Indeed, the constitutions of 44 states, like the federal Constitution, explicitly protect the individual right to keep and bear arms, and the legislatures of all 50 states are united in their rejection of bans on private handgun ownership. Forty-five states go even further, allowing private citizens to carry concealed handguns for self-defense.

So how is it that the District of Columbia could be so out of step with the rest of the nation and nonetheless arguably comply with the requirements of the Second Amendment? The answer that the federal district court seized upon -- like an earlier ruling from the Ninth Circuit Court of Appeals in California -- is a theory popularized recently by several law professors and gun-control advocates: Because the Second Amendment refers to "a well regulated Militia," the Constitution protects only the "collective right" of the militia and not the individual right of any citizen.

This creative theory, useful for advancing the policy goals of its advocates, runs contrary to the text of the Constitution, to the debates and original understanding of the Framers, to Supreme Court precedent, and to the widespread understanding of state courts and legislatures for the first 150 years of our nation's history. At the time of the founding, the "militia" was understood to consist of all able-bodied males armed with their own weapons; indeed, the Militia Act of 1792 not only permitted individual gun ownership, it required every man to "provide himself with a good musket or firelock . . . or with a good rifle."

If the "collective rights" theory were to prevail, the result would be that no individual in the U.S. could ever claim any right under the Second Amendment, but rather that inchoate right would exist only collectively and amorphously for state militias. Such an outcome effectively reads out of the Constitution what respected law professor Sanford Levinson famously described as, from the perspective of anti-gun advocates, that "embarrassing Second Amendment."

Because the "collective rights" theory is unfaithful to the Constitution and undermines the individual rights of all Americans, Texas took the lead among the states in supporting the plaintiffs in the D.C. gun suit. Texas Attorney General Greg Abbott assembled a collation of 13 states (Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Utah and Wyoming) who together supported the Second Amendment, and the amici states presented oral argument in the D.C. Circuit in the companion case to this one defending the individual right to keep and bear arms.

Notably, every state, including Texas, believes that some regulations on firearms are both permissible and advisable; for example, the states are united in supporting restrictions on violent felons owning guns. But all of the amici states are likewise united in the belief that the Second Amendment means what it says, that the individual right to keep and bear arms cannot be completely abrogated as under the D.C. gun ban.

The District of Columbia has pledged to appeal, and this case could well find its way before the U.S. Supreme Court. If so, Texas and the rest of the amici states stand ready once again to support the Second Amendment, and we are confident that the Court will in turn faithfully uphold the individual constitutional rights of all Americans.

Mr. Cruz is the solicitor general of Texas. He authored two briefs and presented oral argument for the amici states supporting the Second Amendment in the D.C. Circuit.

Unloaded, a gun is just a complicated paperweight!

[RoninLB]

that's another example of advocacy groups by-passing the Constitution and Legislature by manipulating the Judiciary to "fix" the system. The ACLU if famous for that tactic of voter control.

my point is that the Judiciary is below the Legislature unless you want to create a draconian state.

[Joeaksa]

Now to see how NYC and Chicago try to twist this to allow them to continue banning weapons in their cities.

Will be interesting...

[legion]

Originally posted by Joeaksa
Now to see how NYC and Chicago try to twist this to allow them to continue banning weapons in their cities.

Will be interesting...

Yes.

One loophole I see is that they only ban handguns--thus allowing some type of firearm.

[304065]

Read the text of the decision here.

Ok, that should have taken you at least an hour. I have rarely seen each WORD of the Second Amendment so thorougly analyzed.

Basically the long and short of it is the US Court of Appeals for the DC circuit debunks the notion that the preamble to the grant of rights contained in the Second Amendment is intended to refer to a collective right of "the militia" instead of an individual right.

That just goes to show you how perverted the thought process is in some jurisdictions-- there are people who believe that the Constitution's minimum guarantees of individual rights are in fact an enfranchisement of a quasi-state organ like a Militia. Possibly the most backward reading imaginable.

To illustrate how absurd that approach is, consider if the same logic were applied to the Fourth Amendment, which reads,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Suppose that one were to assume that the very same "people" in the Fourth Amendment referred NOT to individuals but to homeowners because of the word "houses". Absurd.

I predict that the SCOTUS will NOT pick this up for review.