A Blog For All - Comments - Keep it civil
A majority of the organizations and individuals that support restricting gun ownership to a select few (or banning it outright), rarely make use of the introductory words to the Second Amendment. I think it was a matter of time before SCOTUS would have to address it some manner.
I remember the news about the private militias in the West and commenting to my uncle, who thought them a threat, that the militia members were more in accord with the 2nd Amendment than a private citizen owning a firearm for self defense.
I would also note that Congress, pursuant to Article 1, Section of the Constitution, is provide for organizing, arming, and disciplining, the militia..."
I am not familiar with the Heller case, so I do not know if this provision of the Constitution is in play.
I have mixed feelings on private gun ownership, mostly based on my own experience of how poorly people secure their weapons and are trained to use them and the resulting calamity.
The issue in Parker v. DC (as it was known below) is which model of the Second Amendment is the correct model. Does the Second Amendment grant rights to the individual or the states.
Court’s analyzing the Second Amendment have come down on three separate interpretations of the rights conferred therein. Specifically, Courts and commentators have spoken of the “States rights approach”, the “sophisticated collective rights approach” and the “individual rights approach.”
The States rights approach simply states that the Second Amendment does not apply to the individual, but rather confers rights upon the States to arm its militia. Several circuits have adopted this approach. See United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976) (‘Since the Second Amendment right “to keep and bear Arms” applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.’ ” Id. (quoting Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971)); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.1995) (“the Second Amendment preserves a collective, rather than individual, right.”); Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.1999).
Along those lines, the sophisticated collective rights approach states that individual right to bear arms can only be exercised by members of a functioning, organized state militia, during the course of the militia’s activity. See Cases v. United States, 131 F.2d 916, 923 (1st Cir.1942); United States v. Rybar, 103 F.3d 273, 286 (3d Cir.1996).
Lastly, the individual rights approach simply states that the Second Amendment recognizes the right of individuals to keep and bear arms. See United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
In reviewing the language and history of the Second Amendment itself, it is clear that the Second Amendment confers rights upon the individuals to keep and bear arms, irrespective of membership or participation in a militia. The Second Amendment contains two parts, the preamble (“A well regulated Militia, being necessary to the security of a free State”) and the actual rights conferred (“the right of the people to keep and bear Arms, shall not be infringed.”) Under the direct terms of the Second amendment, the rights of the “people” to “keep and bear arms shall not be infringed.” The reason for conferring these rights was that a well regulated militia was deemed necessary to the security of a free state.
Given the language of the Second Amendment the States rights and sophisticated collective rights approaches cannot be correct. The right to bear and keep arms was given to the people, because a well regulated militia was necessary for the State. The State was not given the rights under the Second Amendment, the people were. See Emerson, 270 F.3d at 227-8. See also United States v. Verdugo-Urquidez, 494 U.S. 259, 1
Sorry, I don't think the issue has anything to do with state militias at all. The Court has only decided to hear a challenge to a federal law on firearms possession. So its ruling will only tell us whether these DC laws -- federal in nature -- violate the Second Amendment. However the Court rules on that question, its decision will have no implication on the ability, or not, of state and local governments to pass gun laws. The Supreme Court settled this point as far back as Presser v. Illinois in 1886 when it quite clearly held that the Second Amendment only restrains Congress (and it's delegee, here, DC). It does not restrain State and local governments.
DAJ Hilton
I'm not optimistic that Justice Kennedy will do the right thing. However, an adverse ruling could help Republicans in the elections.
I think I better make that check to the NRA-ILA a little larger next time.
David,
Its not about militias, but the text of the Second Amendment explicitly makes it about the militias. "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." So under U.S. v. Miller, 307 U.S. 174 (1939), the Supreme Court expressly held that the two clauses of the
Amendment, the opening declaration and the concluding guarantee, must be read jointly as protecting the bearing and keeping of “arms” only for a civil purpose, that is, the “security of a free State” through a militia. 307 U.S. 174, 178.
So to say this is not about the militia, yes your right, Neither Parker nor Heller were members of a "militia" (and indeed, some cases even go as far as saying that in modern times there is no Militia as the framers knew it). But the case law surrounding the second clearly fals on three fronts, two of which reserve the right to either the states for the milita, or militia members themselves.
Funny, a previous poster mentioned U S v. Rybar, 103 F.3d 273, 286 (3d Cir.1996). as showing a collective right interpretation to the Second Amendment.
There was a dissent in Rybar.
The dissenting judge's name: Samuel Alito.
Yes, this is the case which earned Alito the nickname "machinegun Sammy". Funny thing, Alito was silent about the collective right issue in his dissent and only used the US v. Lopez, 514 U.S. 549 (1995) Commerce clause issue.
What if Alito holds the collective rights interpretation of the Second Amendment?
What if Alito beings along Roberts and Scalia? Not so crazy an idea. Scalia is a strong believer in stare decisis and upholding Heller would screw up a lot of legal opinion.
I wouldn't hold how the question is written for squat. Remember, current legal theory holds the Second Amendment only applies to those who are part of a militia. Or as the Scotus gloss on the Second Amendment says "individual protection but only in the context of the maintenance of a militia or other such public force."
http://supreme.justia.com/consti...t-02/
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