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The Supreme Court will hear oral arguments today in Heller vs District of Columbia, the first major gun-rights case to come before the court in nearly 70 years. At issue is a long unresolved constitutional question: Does the Second Amendment protect an individual's right to keep and bear arms, or does it only protect a state's right to arm a militia?
Heller vs District of Columbia is the appeal of Parker et al vs District of Columbia, (PDF) brought before the DC Circuit in 2006. A key part of that case was the distinction between the individual right to bear arms, and the collective right to bear arms. That distinction flows from a 1939 Supreme Court ruling, US vs Miller, where the court ruled that Congress could regulate the purchase, ownership and transportation of firearms. The firearm in question in US vs Miller was a shotgun, and the government argued that that was not a military weapon. The court agreed, finding that since the states were charged with arming and maintaining a militia, the right to bear arms is held collectively, and Congress has no power to restrict a state's possession of firearms, but could regulate firearms that are not military issue from a state.
In Parker et al, the appellants wanted to possess handguns in their respective homes, and wanted to keep a registered shotgun assembled and unhindered, for self-defense. The District refused these requests, citing the city's gun ban, which made it all but illegal to possess or register a handgun or side arm, or to possess a loaded, assembled shotgun. In March 2007 the circuit court ruled that the Second Amendment grants an individual right to bear firearms, citing an earlier ruling from the Rehnquist Court, US v Verdugo-Urquidez, as precedent. Among the many issues settled in that case, the Supreme Court ruled that the term "the people" has a uniform construction throughout the Bill of Rights. Drawing from that conclusion, the DC Circuit ruled
"[T]he people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community…. It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right….
This case is being watched closely across the nation, including here in Chicago, where the city's handgun ban is similar to DC's. Mayor Daley has made it clear that he supports stronger gun restrictions. The city, along with the Chicago Board of Education, has filed briefs arguing that, even if the court overturns the DC ban, Chicago's ban should remain untouched. Because DC is a federal creation, the city argues, the ruling should have no impact on Chicago. Benna Ruth Solomon, Chicago's deputy corporation counsel, told the Tribune that local communities should have the authority to regulate public safety. "Our City Council and mayor can be responsive to local residents," Solomon said. "And anyone who disagrees with the ban can find some other place to live."
Even if the Supreme Court rules that there is an individual right to bear arms, they will still have to decide whether the DC ban will stand, and how to evaluate gun control laws in other parts of the country.
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Kevin, actually, it has been long RESOLVED due to the 1939 gun case and the Supreme Courts light hand with this issue ever since. Since federal and appellate courts have mostly stayed within the boundaries of Miller, the "individual" right to bear arms is basically a myth created by the gun lobby.
Since The Court normally defers to itself and is loathe to overturn past decisions (stare decisis)I will be very very suprised if the decision arising from Heller radically changes gun law; especially considering the majority of the public favoring tougher legislation on gun control.
Matilda writing in to disagree with Spav simply for the reason of disagreeing with Spav in 3... 2...
I could've said something about the real issue here being right to privacy, but I didn't want to throw too much at her.
Say Spav1, which other rights in the Bill of Rights are "collective" ?
The supposed "collective right" is a fiction created by the 20th-Century Gun Prohibition movement.
"the people" I believe, referenced throughout the Bill of Rights, is referring to a collective, so therefore it can inferred that the rights bestowed on "the people" is meant to be a collective term.
"and the right of the people...shall not be infringed"
Explain how that to you reads "individual"?
And the text of the 2nd Amendment is clearly referring to a militia; also taking the context of when it was written into account, I think the framer's intent was obviously to make sure that the government couldn't intervene in the forming of an army etc...
None of the rights in the Bill of Rights are collective. The idea of collective rights did not even exist at the time the Bill of Rights was being wrote.
If it was clearly referring to a militia it would have been written:
(You are also incorrect, United States v. Miller did not resolve this issue at all. The court took no position on collective/individual right.)
The Court is going to knockdown D.C. tyrannical ban, and Chicago's with it.
Spav- If it is intended to not let the government interfere in creating a militia, how is certain selective government's ban on guns not interfering upon that?
Another intresting note on this- one of the issues at play is the very punctuation of the amendment- It's archaic. With the commas in the places they are, it is possible to read the amendment several very different ways, depending on the emphasis.
I think D.C.'s ban will be overturned. Chicago's ban not so much with it, but Chicago will be next in line. All of this will only solidify individual rights, thankfully.
The whole POINT of the Bill of Rights was to make sure that the STATE couldn't infringe on the right of the newly minted "American People". To write into the Constitution that the "State" is free to keep and bear arms is retarded and you are missing the point. The 2nd amendment protects the right of the people to defend themselves collectively, against all enemies, including the State if they so choose.
Additionally, I think Miller did address the individual/collective business stating, and individual right to a gun has "no reasonable relationship to the preservation or efficiency of a well regulated militia." Therefore, collective, yes. Individual? NO.
Sidenote, I think the D.C. gun ban will be overturned, but I think the court will use the 9th and 14th amendments to do so. Generally, courts look to community standards and generally like to let citizens do as they please in their own homes, which this law is restricting.
And yeah, it is an interesting point, if the 2nd amendments preserves the right to form a milita, why are military weapons being banned?
I like to keep a vial of weaponized anthrax on me at all times... for duck huntin'
Oral arguments are over and it looks like Kennedy will be voting with the conservatives to strike the ban.
Spav1, you should read Bill of Rights by Akhil Reed Amar. I don't agree with him but he has some interesting interpretations (originalist) of the Bill of Rights and would definitely disagree with your comment about the WHOLE POINT of the Bill of Rights.
Interesting book to see into how originalists, real ones, think about the BoR.
One of the most interesting & least publicized points of this case is that it was brought by a group of DC residents with the help of a LIBERAL legal aid group so that they, the DC residents, could defend themselves in a city with a totally incompetent police force.
Washington has at least a dozen different federal police agencies in addition to the incompetent DC Metro Police.