Happy New Year!
It\'s clear that 2008 is going to be huge for those who believe that the 2nd Amendment defends our individual right to keep and bear arms. The upcoming election may very well have a more significant impact on gun owners than any in recent history. Perhaps even more importantly, for the first time the Supreme Court of the United States is going to have the opportunity to finally answer the question: Is the right to keep and bear arms an individual right, or simply the collective right of a state militia? District of Columbia v. Heller, SCOTUS Case No. 07-290, challenges the Washington DC ban on handguns.
The Second Amendment to the Constitution of the United States reads as follows:
“AMENDMENT II: 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.”
The wording of the Court\'s docket reads as follows:
07-290 DISTRICT OF COLUMBIA V. HELLER
DECISION BELOW:478 F. 3d 370
LOWER COURT CASE NUMBER: 04-7041
QUESTIONS PRESENTED:
Whether the Second Amendment forbids the District of Columbia from banning
private possession of handguns while allowing possession of rifles and shotguns.
CERT. GRANTED 11/20/2007
THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED LIMITED TO THE
FOLLOWING QUESTION: WHETHER THE FOLLOWING PROVISIONS - D.C.
CODE §§ 7-2502.02(a)(4), 22-4504(a), AND 7-2507.02 - 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?
A Brief History:
In 1939 United States v. Miller was the last time that the Supreme Court heard a case regarding personal possession of firearms. In this case, two bootleggers (said Miller & his partner-in-crime) were found to be in possession of a sawed-off shotgun, and of transporting it over state lines, without paying a federal tax. The decision the Court made at the time was only that.
"In the absence of any evidence tending to show that possession or use of a \'shotgun having a barrel of less than 18 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
Little was said about whether or not the “Militia Clause” at the beginning of the Second Amendment referred to the right of the people to keep and bear arms for the protection of the State in the form of an organized militia, or whether it referred to the right of the People to keep and bear arms for their individual protection against the possible excesses by the State.
Various arguments over the last 70 years have been made on either side, but the Supreme Court has never agreed to rule on it – until now. Even current Chief Justice John Roberts has allowed that the Miller case largely sidesteps the “Individual right to bear arms” issue. GOCRA President Joe Olson is writing an Amicus (Friend of the Court) Brief for District of Columbia v. Heller that will argue the merits and specifics of the Constitutional Law behind 07-290. Contrary to the claims of anti-gun groups, the overwhelming majority of legal scholars do indeed support the "individual rights" view, but this will be the first time that the issue has been under consideration by the highest court in the land.
Our Constitutional system is based upon the principle that the State draws its power from the consent of the governed. The People possess "unalienable" rights by virtue of their humanity - the State does not "grant" rights. The entire the point of our Constitution (and more specifically the Bill of Rights) is to limit the government’s ability to infringe on any of those rights. Thus Sarah “I Don\'t Believe Gun Owners Have Rights" Brady and her ilk must conclude that the “right of the People” in the Second Amendment, refers to a different "People" than those mentioned by the First, Forth, Ninth, and Tenth.
Additionally, no one has ever explained how the phrase “A well-regulated militia”, written in 1789 and ratified in 1797, could refer to the National Guard, a branch of service proposed under the Roosevelt Administration, and created under the Wilson Administration in 1917.
Finally, few people know that the original text of what would eventually became the Second Amendment, according to the Annals of Congress, House of Representatives, 1st Congress, 1st Session: pp. 451 was:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
James Madison had never envisioned an enumerated Bill of Rights.The above clause was intended to be inserted into Article I, Section 9, between clauses 3 and 4.This would place it with the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws. Note that all of these are individual civil rights, asserted by individuals, as a defense against government action. Clearly, the intent was to preserve the rights of the individual.
The 1st Amendment vs. the 2nd Amendment
Note that under the First Amendment, Internet pornography and the literature of the North American Man-Boy Love Association have been found to be protected free speech.Reporters who receive information from informants who may have been violating their clearances within the government have been found to be protected by the First Amendment (New York Times Co. v. United States, 1971). Neo-Nazi’s are allowed to march in the streets of Toledo calling for the death of Jews. In San Francisco, gay men in outlandish makeup and dressed as nuns defile a Catholic Communion ceremony. In Washington, anti-war activists are actually holding up the delivery of war material to our troops in Iraq. All of this is “Protected Free Speech" according to previous Court rulings. If the Second Amendment were interpreted as loosely as the First, we might all have the ability to own LAWS rockets and suitcase nukes.
We’ll see how things go starting in March. Although there is no guarantee how broadly, or how narrowly, the Court may choose to rule, we\'re cautiously hopefull that the Justices will come to the right decision.
In the meantime, let us know what you think!
Sean Novack is a certified firearm instructor who has worked in the security, personal protection, and private detective industry for 15 years. He was introduced to firearms by his father, an Army Ranger with three tours in Vietnam and 30 years on the Minneapolis Police Dept. Sean was endorsed by the Republican Party in a 2006 bid for the City Council seat in Coon Rapids Ward 5. He lives with his wife and two children in Coon Rapids, Minnesota.
