Jim Stillman
Randy InmanSupreme Court to, possibly, resolve the effect and scope of the Second Amendment
November 26th 2007 16:18
Last year, I had an occasion to post an article on another site suggesting that there be a re-examination of the Second Amendment to the Constitution and the concept of gun control. The needs and demands of the eighteenth century, when the Second Amendment to the Constitution was drafted, are not totally applicable to current society. The proponents of gun control and those in favor of a virtually unfettered right of an individual’s right to own a gun unfortunately tend to think in terms of slogans and bumper stickers. Others profess to be hunters who choose to search for their food rather than visiting the local supermarket, establishing their ability to conquer unarmed deer.
A few years ago, six residents of the District of Columbia brought suit in the District Court challenging the ordinance which generally bans the unrestricted possession of a handgun with certain exceptions. Moreover, under the ordinance, guns would have to be stored unloaded or disassembled or secured with a trigger guard or lock.
It now appears that the United States Supreme Court has accepted for review a decision of the Court of Appeals for the District of Columbia Circuit dated March 9, 2007, holding the D.C. gun control law unconstitutional. The ordinance banning handguns was enacted over 30 years ago and is one of the most stringent in the country. The Court has limited its review to the following issue:
The Supreme Court has agreed to review the Circuit Court’s decision; oral argument will likely be scheduled for next spring, with a decision likely at the start of summer.
Both the advocates of gun control and the National Rifle Association are uneasy about the future ruling, the first to face basic interpretation of the Amendment since 1939. Moreover, the platforms of several Republican presidential hopefuls cite gun ownership as being almost sacred.
Into this mix and political atmosphere, a Supreme Court ruling could be as disruptive as Roe v Wade and the anti-discrimination cases of the 1950’s.
The Second Amendment has engendered controversy and argument that far exceed the length of the Amendment itself. The Amendment states, in full: “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."
Contextually, this amendment is unique. Each of the other provisions of the Bill of Rights creates a limitation on the power of Congress to take certain actions. No qualifying terms are used, no "reason" for the prohibition is offered. (Parenthetically, there is a similar qualifier or rationale in the Decalogue. Among the prohibitions, one must not kill, lie, steal, covet, and so forth is the direction that one should "honor mother and father". This is a positive command and is accompanied by the explanation. " So that your days may be long. ")
So, what is the purpose of the qualifying phrase, "A well regulated militia being necessary ..."? Is the Amendment designed to provide for an organized militia with which the nation's safety can be secured or is it a guarantee that each individual has the right to possess a firearm. Those opposing any restriction on gun ownership commonly choose to ignore the qualifying phrase.
The answer is, likely, both, with the major emphasis on the former. To really understand the Second Amendment, one must appreciate the context in which it was drafted, the societal conditions of the eighteenth century and the historical experiences that made it important.
The attitude of Americans toward the military was much different in the 1790's than it is today. Standing armies were mistrusted, as they had been used as tools of oppression by the monarchs of Europe for centuries. In the war for independence, there had been a regular army, but much of the fighting had been done by the state militia, under the command of local officers. Aside from the war, militias were needed because attacks were relatively common, whether by bandits, Indians, and even by troops from other states.
Today, the state militia has evolved into the National Guard in every state. These soldiers, while part-time, are professionally trained and armed by the government. No longer are regular, non-Guardsmen, expected to take up arms in defense of the state or the nation.
This is in great contrast to the way things were at the time of adoption of the Second Amendment. Many state constitutions had a right to bear arms for the purposes of the maintenance of the militia. Many had laws that required men of age to own a gun and supplies, including powder and bullets.
The Amendment, then, does address two areas of concern. The framers clearly wanted to protect the concept of a local state militia. There was an additional intent to allow citizens to possess firearms. In 1939, the Supreme Court, in U.S v Miller, dealt with sawed-off shotguns. These weapons were, de facto, held illegal and not within the scope of the Second Amendment; such weapons do not contribute to the maintenance of a militia, and have no use in ensuring the common defense. This decision has been the starting point of gun regulation statutes and judicial action since 1939.
The argument suggested by many gun advocates is that citizens need to be prepared to fight a despotic government.
Perhaps in the 1780's, the rise of a tyrant to a leadership position in the U.S. was a cause for concern. Today, I am confident, the voters are much too sophisticated to elect a leader whose stated aims would be to suppress freedom or declare martial law. For the leader whose unstated aim it was to seize the nation, the task would be more than daunting - it would be next to impossible. The size and scope of the conspiracy needed, the cooperation of patriots who would see right through such a plan - it is unfathomable, the stuff of fiction. There are some who fear the rise in executive power under the present Bush presidency is just such usurpation, and in some ways it may be. But similar usurpations of power by the Congress and the President, such as the Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, or the internment of Japanese-Americans during World War II, were all eventually overturned or struck down and then condemned by history. There is no reason to doubt the same result would happen today.
The defense of our borders had not been a cause for concern for nearly a century before the subject really came up again around the time of the turn of the millennium in 1999. Concern with border defense again became an issue after September 11, 2001, when a series of terrorist attacks, both in the form of hijacked airliners crashing into buildings and anthrax-laced mail, made people realize that we do have enemies that wish to invade our nation, though not on the scale of an army. While each state has its National Guard it can call up to guard the borders, the activities of a regular coordinated federal force would be far more effective. Certainly the idea of present-day Minute Men, leaving their fields and, with trusty musket, fighting invaders is hardly realistic.
The other alleged guarantee of the Amendment, that everyone has a right to possess a gun, needs to be addressed. While it can be argued that the possession of a rifle for hunting or sport is not a danger to society (it may be to other hunters, but that is not a Constitutional concern), there is no rationale of which I am aware, that would justify automatic weapons, armor piercing bullets, or even some handguns.
At this stage of our society, it is simply impossible to eliminate the millions of guns already in the hands of individuals. But the ownership and use of, at least, certain types of handguns should be closely regulated and, in some cases, prohibited to certain individuals.
Justice Oliver Wendell Holmes noted, "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
The arguments as to the original intent of the framers of the Second Amendment are, in today's age, irrelevant. How much longer do we tolerate slaughter in our schools and workplaces? How many more motorists are to be killed by piston packing drivers suffering from road rage? How many workplaces are to be the subject to wholesale slaughter by disgruntled employees or boyfriends with automatic weapons? If ever there was a rationale supporting individual gun ownership as a constitutional right, with no qualifiers, that rationale no longer exists.
Reasonable restrictions do seem to be the way to go, acknowledging the Amendment, but molding it, as we've done with much of the Constitution. After all, we have freedom of speech in the United States, but you are not truly free to say whatever you wish. You cannot incite violence without consequence; you cannot libel someone without consequence; you cannot shout "Fire!" in a crowded theater without consequence. Why cannot gun ownership be closely regulated without violating the Constitution?
The trick is finding that balance between freedom and reasonable regulation. Gun ownership is indeed a right - but it is also a grand responsibility. With responsibility come the interests of society to ensure that guns are used safely and are used by those with proper training and licensing. That is the keystone: training, licensing, qualifications. If we can agree on this simple premise, it should not be too difficult to work out the details and find a proper compromise.
One possibility is that of universal registration of all firearms and then a policy of strict or absolute liability.
The legal concept of strict or absolute liability deals with those situations where a person engages in an activity that presents so much potential danger to the community that the law demands extraordinary care in its pursuit. For example, in a situation often sited, the owner of a tiger rehabilitation center is held liable for damages if an animal escapes and causes damage and injury regardless of how strong the cages or well constructed.. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. In criminal law the same principal may apply. While normally intent to act unlawfully is a necessary element of a crime, other offenses exist where intent is not an issue. For example, statutory rape or even speeding.
There is precedent, in some states, in cases where a gun owner is held liable and may be charged with a crime when a child finds and fires the weapon and is injured or injures someone else, where the gun has not been locked in a safe nor has a trigger lock or other methods of incapacitating the weapon.
I suggest, then, universal registration of all firearms, mandatory training and education, the securing of all firearms in the home or vehicle with an operational safety device and, finally, if the weapon is used in a crime or someone is accidentally injured or killed by the weapon, the owner is civilly and criminally liable. It would be no defense that the weapon had been lost or stolen; the owner has the responsibility to prevent that from happening.
There may be and probably are other possibilities, but as long as we continue to think in clichés and slogans, nothing will be some and more people will die.
Perhaps the Supreme Court will strike a reasonable balance. The fact that, sooner or later, such issues are presented to the Court makes it imperative that candidates be candid about their choices for the Bench. I also points out the importance of the choices for the Court.
A few years ago, six residents of the District of Columbia brought suit in the District Court challenging the ordinance which generally bans the unrestricted possession of a handgun with certain exceptions. Moreover, under the ordinance, guns would have to be stored unloaded or disassembled or secured with a trigger guard or lock.
It now appears that the United States Supreme Court has accepted for review a decision of the Court of Appeals for the District of Columbia Circuit dated March 9, 2007, holding the D.C. gun control law unconstitutional. The ordinance banning handguns was enacted over 30 years ago and is one of the most stringent in the country. The Court has limited its review to the following issue:
Whether the provisions of the statute “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”
The Supreme Court has agreed to review the Circuit Court’s decision; oral argument will likely be scheduled for next spring, with a decision likely at the start of summer.
Both the advocates of gun control and the National Rifle Association are uneasy about the future ruling, the first to face basic interpretation of the Amendment since 1939. Moreover, the platforms of several Republican presidential hopefuls cite gun ownership as being almost sacred.
Into this mix and political atmosphere, a Supreme Court ruling could be as disruptive as Roe v Wade and the anti-discrimination cases of the 1950’s.
The Second Amendment has engendered controversy and argument that far exceed the length of the Amendment itself. The Amendment states, in full: “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."
Contextually, this amendment is unique. Each of the other provisions of the Bill of Rights creates a limitation on the power of Congress to take certain actions. No qualifying terms are used, no "reason" for the prohibition is offered. (Parenthetically, there is a similar qualifier or rationale in the Decalogue. Among the prohibitions, one must not kill, lie, steal, covet, and so forth is the direction that one should "honor mother and father". This is a positive command and is accompanied by the explanation. " So that your days may be long. ")
So, what is the purpose of the qualifying phrase, "A well regulated militia being necessary ..."? Is the Amendment designed to provide for an organized militia with which the nation's safety can be secured or is it a guarantee that each individual has the right to possess a firearm. Those opposing any restriction on gun ownership commonly choose to ignore the qualifying phrase.
The answer is, likely, both, with the major emphasis on the former. To really understand the Second Amendment, one must appreciate the context in which it was drafted, the societal conditions of the eighteenth century and the historical experiences that made it important.
The attitude of Americans toward the military was much different in the 1790's than it is today. Standing armies were mistrusted, as they had been used as tools of oppression by the monarchs of Europe for centuries. In the war for independence, there had been a regular army, but much of the fighting had been done by the state militia, under the command of local officers. Aside from the war, militias were needed because attacks were relatively common, whether by bandits, Indians, and even by troops from other states.
Today, the state militia has evolved into the National Guard in every state. These soldiers, while part-time, are professionally trained and armed by the government. No longer are regular, non-Guardsmen, expected to take up arms in defense of the state or the nation.
This is in great contrast to the way things were at the time of adoption of the Second Amendment. Many state constitutions had a right to bear arms for the purposes of the maintenance of the militia. Many had laws that required men of age to own a gun and supplies, including powder and bullets.
The Amendment, then, does address two areas of concern. The framers clearly wanted to protect the concept of a local state militia. There was an additional intent to allow citizens to possess firearms. In 1939, the Supreme Court, in U.S v Miller, dealt with sawed-off shotguns. These weapons were, de facto, held illegal and not within the scope of the Second Amendment; such weapons do not contribute to the maintenance of a militia, and have no use in ensuring the common defense. This decision has been the starting point of gun regulation statutes and judicial action since 1939.
The argument suggested by many gun advocates is that citizens need to be prepared to fight a despotic government.
Perhaps in the 1780's, the rise of a tyrant to a leadership position in the U.S. was a cause for concern. Today, I am confident, the voters are much too sophisticated to elect a leader whose stated aims would be to suppress freedom or declare martial law. For the leader whose unstated aim it was to seize the nation, the task would be more than daunting - it would be next to impossible. The size and scope of the conspiracy needed, the cooperation of patriots who would see right through such a plan - it is unfathomable, the stuff of fiction. There are some who fear the rise in executive power under the present Bush presidency is just such usurpation, and in some ways it may be. But similar usurpations of power by the Congress and the President, such as the Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, or the internment of Japanese-Americans during World War II, were all eventually overturned or struck down and then condemned by history. There is no reason to doubt the same result would happen today.
The defense of our borders had not been a cause for concern for nearly a century before the subject really came up again around the time of the turn of the millennium in 1999. Concern with border defense again became an issue after September 11, 2001, when a series of terrorist attacks, both in the form of hijacked airliners crashing into buildings and anthrax-laced mail, made people realize that we do have enemies that wish to invade our nation, though not on the scale of an army. While each state has its National Guard it can call up to guard the borders, the activities of a regular coordinated federal force would be far more effective. Certainly the idea of present-day Minute Men, leaving their fields and, with trusty musket, fighting invaders is hardly realistic.
The other alleged guarantee of the Amendment, that everyone has a right to possess a gun, needs to be addressed. While it can be argued that the possession of a rifle for hunting or sport is not a danger to society (it may be to other hunters, but that is not a Constitutional concern), there is no rationale of which I am aware, that would justify automatic weapons, armor piercing bullets, or even some handguns.
At this stage of our society, it is simply impossible to eliminate the millions of guns already in the hands of individuals. But the ownership and use of, at least, certain types of handguns should be closely regulated and, in some cases, prohibited to certain individuals.
Justice Oliver Wendell Holmes noted, "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
The arguments as to the original intent of the framers of the Second Amendment are, in today's age, irrelevant. How much longer do we tolerate slaughter in our schools and workplaces? How many more motorists are to be killed by piston packing drivers suffering from road rage? How many workplaces are to be the subject to wholesale slaughter by disgruntled employees or boyfriends with automatic weapons? If ever there was a rationale supporting individual gun ownership as a constitutional right, with no qualifiers, that rationale no longer exists.
Reasonable restrictions do seem to be the way to go, acknowledging the Amendment, but molding it, as we've done with much of the Constitution. After all, we have freedom of speech in the United States, but you are not truly free to say whatever you wish. You cannot incite violence without consequence; you cannot libel someone without consequence; you cannot shout "Fire!" in a crowded theater without consequence. Why cannot gun ownership be closely regulated without violating the Constitution?
The trick is finding that balance between freedom and reasonable regulation. Gun ownership is indeed a right - but it is also a grand responsibility. With responsibility come the interests of society to ensure that guns are used safely and are used by those with proper training and licensing. That is the keystone: training, licensing, qualifications. If we can agree on this simple premise, it should not be too difficult to work out the details and find a proper compromise.
One possibility is that of universal registration of all firearms and then a policy of strict or absolute liability.
The legal concept of strict or absolute liability deals with those situations where a person engages in an activity that presents so much potential danger to the community that the law demands extraordinary care in its pursuit. For example, in a situation often sited, the owner of a tiger rehabilitation center is held liable for damages if an animal escapes and causes damage and injury regardless of how strong the cages or well constructed.. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. In criminal law the same principal may apply. While normally intent to act unlawfully is a necessary element of a crime, other offenses exist where intent is not an issue. For example, statutory rape or even speeding.
There is precedent, in some states, in cases where a gun owner is held liable and may be charged with a crime when a child finds and fires the weapon and is injured or injures someone else, where the gun has not been locked in a safe nor has a trigger lock or other methods of incapacitating the weapon.
I suggest, then, universal registration of all firearms, mandatory training and education, the securing of all firearms in the home or vehicle with an operational safety device and, finally, if the weapon is used in a crime or someone is accidentally injured or killed by the weapon, the owner is civilly and criminally liable. It would be no defense that the weapon had been lost or stolen; the owner has the responsibility to prevent that from happening.
There may be and probably are other possibilities, but as long as we continue to think in clichés and slogans, nothing will be some and more people will die.
Perhaps the Supreme Court will strike a reasonable balance. The fact that, sooner or later, such issues are presented to the Court makes it imperative that candidates be candid about their choices for the Bench. I also points out the importance of the choices for the Court.
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Comment by Ahmed
techy.Bytes
Video Gamer Kids
Little Green Foosballs
PolyKicks
Qwerk
Cinema Three
people looking for their 'freedom' should note that the easier it is to obtain firearms the easier it is for them to be abused. The common argument I hear is that if we have strict gun laws then we won't be able to defend ourselves. Of all ironies however if we do have strict gun laws criminals will be less likely to have guns.
If you give everyone a gun then criminals will be more hesitant before comitting a crime because they know for a fact the persons house they're going to rob has a gun in it.
So as far as I'm concerned you have to take an extreme side, however either extreme is next to useless unless you tackle the problem at its core, which is of course crime. While sorting out the gun control issue is a good start it's only one aspect of the broader picture. It won't end crime on its own and the effects of any rulings on gun control now may only become noticable several years into the future.
Comment by Damo
For the Sake of Argument
My Apologetics
I would disagree that gun ownership is a right.
What immediate life essentials does it provide?
Anyway, NRA and other gun ownership mobs have their agenda and quoting from the constitution is pretty irrelevant. Even if the second ammendment was deleted they would argue to defy the law.
So the battle is not about what is said in any constitution what are the intentions of such people.
The reasoning for the second ammendment may not have been as innocent as the history says. This was a war situation and like all seperatist fights it used a civilain army to support it. In the USA history it was muskets but in Africa and Asia today it is the AK47. In each case the gun was called the tool of liberation.
From what I read from pro-gun lobbies sound very paranoid and occasionally subversive.
We need our guns incase we gate a government we don't like.
We need our guns incase someone invades our home.
The national gaurd is a regulated and controlled reserve army but some gun groups see it as their right to set up private armies. Private armies with private agandas.
Angry radicals, guns and private armies. Any major social upheaving in the US can create the conditions of a perfect storm.