Gosh. I can't wait to see what the court decides.

Assuming the Court rules narrowly, which Roberts like to encourage, whichever side loses this case will still have a sliver of hope. That is because the case deals with Wash DC. There is a chance that it will be an open question whether the 2nd amendment applies the same way to the states as it does to Wash DC.

I suggest it may be interesting if the Court does uphold Wash, DC's right to ban guns. Would the gun rights activists blame the "conservative" court as appointed by Republicans as the focus of their scorn?

The only citizens who have a right to own guns are members of the National Guard. Read the 2nd Amendment carefully.

great. this is probably one of the only courts in history that could actually rule guns are protected outside of militias.

The conservative Supreme Court decides to take this case going into an election that is nearly un-winnable for conservatives.

8 years ago I would have said coincidence, today, we can assume this was not.

The problem here is that the Second Amendment is close to gibberish. The people who gave us the Constitution and Bill of Rights -- drafters, voters, and everybody in between -- over all did a very good job. They weren't perfect, however, and this is one of the striking imperfections. If they were trying to say that government cannot interfere with a citizen's right to own a flintlock pistol (or whatever), they did a lousy job of saying so. If they were trying to say that states may raise militias regardless of the federal government's authority over armies, they a lousy job of saying that. If they were trying to say something else, they did an even worse job. This is, by the way, a dirty little secret of appellate law: a great deal of high price arguing and pontificating over the true meaning of language that, very often, is actually gibberish -- and, usually, neither side dares to admit it.

They ought to allow everyone who wants to own a gun to have one. Statistically guns are used most frequently against people who live in the house in which the gun is kept. Let 'em all win the Darwin awards, I say.

I have no doubt the court will let the ruling stand. As a DC resident I have paid a bit of attention. While I do wonder that the ban was unconstitutional, on the mundane level I am not thrilled with the idea of my neighbors having weapons. Too many of them are careless and too many of them are idiots.

They think weapons make them safer, they think they would actually use it to defend themselves - I am not so sure either are necessarily true.

To me, weapons are a false sense of security because most people overestimate themselves and their abilities. No one should own a gun if they don't secure it properly, learn how to use it, be willing to kill someone with it, and live with the consequences of killing someone. They have to have the quick thinking skills to use a weapon in the first place, then there is the fact that they would have to differential between friend (which you don't want to shoot) and foe (which you do). They also think just pointing and threatening or wounding someone will work. It won't. They are more likely to have their own weapon turned on them.

Minutemen with blackpowder rifles to protect the citizenry from Redcoats and marauding Indians suddenly transformed into any yahoo at a gun show with a hankering to own an AR-15 with an infrared scope and a armor piercing bullets.

Makes sense, right?

That's funny. My reading is that the 2nd Amendment specifically doesn't protect individual ownership of firearms. It very specifically establishes that local governments be armed.

Nevertheless, with 200 years of legalized gun ownership behind us, it's a moot point.

If anything, the way to limit individual gun ownership might be to require military training and service as a prerequisite of gun ownership. Seems like that would be perfectly in keeping with the Constitution.

As the Bush administration goes towards its end on I become more nervous--particularly if a Democrat wins. Will they give up power?

I think its an open question.

You stupid liberals don't understand HOW GOOD, STRONG, AND SAFE GUNS MAKE US FEEL. We don't care how you feel. We care about how WE feel. You idiots. Go ahead with your sex and your drugs. You're all selfish babies with no respect for our great traditions.

For all the strict constructionists, here's what you have to work with:

"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."

Looks like you could regulate guns to me. Otherwise everyone has to be in a militia.

I agree with Diana. The Feds ought to buy everyone in a Red state a couple dozen guns. All with hair triggers. And while they're at it back up a beer truck to the front porch. Then spread rumors Jed boinked their Mama. Stir lightly and duck.

It has always been my interpretation that the second amendment guarantees all US citizens to use whatever weapons are used by the Army, including rocket launchers, tanks and Apache helicopters.

The case itself, and the Supreme Court's hearing of it, is probably not too relevant: one of the NRA's key strategies of the last 10-15 years has been to lobby for changes in state constitutions that make it extremely difficult to introduce gun regulation at the state level.

I think that ScottW above nails it.

The 2nd amendment doesn't mention guns at all; it talks about "arms". There are hundreds of laws on the books regulating everything from switchblades to fissile materials. Try invoking the 2nd amendment when you're caught with those things and see how far it gets you.

For what its worth, again probably not much, your reading comports with mine. The 2nd amendment provides an individual right to own guns. That right is not absolute, of course, and it is for the purpose of enabling a citizen's militia. Thus, the number and type of guns allowed to be owned could be limited to those an individual could personally carry to a muster. The militia's command needs to know what sort of arms are available so required registration of guns would be permitted. Etc.

Personal firearms are the biggest damned deal mankind ever unleashed on itself. Everything changed the second that lead first pierced the chest of an opponent. A handgun started World War I, and if a person does not realize what the hell kind of power they are holding every time they pick one of the things up, they shouldn't be allowed in the same area code with firearms, let alone own them. (And for the record, I freely admit that I own an arsenal.)

why do you have an "arsenal", blue girl?

Unless I have missed something, this case will deal solely with the DC ban (every story I have read mentions only that case). As such, I expect the court to unhold the individual right to own a gun. The amendment clearly reserves the right to the people, not militias, and not the states. I have always thought it clear that the first part of the amendment was protecting the individual states' rights to form such militias.

A secondary question is whether this right makes unconstitutional state laws banning guns. The post Civil War amendments would seems to suggest this is the case.

There will be further cases defining their proper extent, but it is safe to write that regulations will still be applied to gun ownership in the future.

We hunt. We are "slow food" all the way. (And we have both inherited quite a few firearms from uncles as they passed on.)

I have never owned a hand gun, but a personal biological or nuclear weapon might be desirable. According to a strict reading of the constitution, these weapons should be just as constitutionally protected as any other arms.

if a person does not realize what the hell kind of power they are holding every time they pick one of the things up, they shouldn't be allowed in the same area code with firearms
The argument starts when you ask who should decide.

..."slow food"...
If it's that slow, you shouldn't need guns!

Blue Girl,

Hmmm. I suppose I shall never say anything bad about you in the future (not that I can recall doing so in the past, but now I have additional incentive to be nice).

The second amendment isn't all that contradictory and doesn't require a lot of arm-waving. One simply has to consider the framing of the issue at that time.

Remember that the first battle of the Revolutionary War occured when British troops were dispatched to confiscate arms and ammunition held by the citizen-militia in Concord.

The second amendment recognizes:

1) Need for a militia. A milita is an organization of armed citizenry.

2) To have an armed citizenry, the citizens must be allowed to keep and bear arms.

Simple enough.

I don't disagree, Buford, but you have to remember that you couldn't kill 20 people in 10 seconds with a musket. It's well past time to re-evaluate what an armed citizen militia means in the modern age.

The argument starts when you ask who should decide.

Me, of course!

If it's that slow, you shouldn't need guns!

I came up against some stubborn carrots and shell beans last fall when we harvested. The Browning was necessary...

I have trouble with the second amendment because I think it clearly states that people should be able to keep weapons. The reason given is that the local government might need to pull together a militia, and everyone needs to bring their own firearms. The reasoning behind the amendment is "no longer operative". (I mean, the amendment could have read "In order to make sure everyone has a pony, the right to bear arms shall not be infringed" and it would still say people have the right to bear arms).

But as has been pointed out, it says "arms" not "guns" -- and the sorts of "arms" that are available now far outstrip anything available in the 18th century. (There were cannons, though....I'm pretty sure the second amendment doesn't allow anyone to keep a cannon in their home....)

Surely there's a domestic tranquility argument to be made somewhere.

I took a trip out west, driving alone, a few years ago. Miles of nothing. I suddenly understood why many people who don't live near the coast feel the need to have a gun.

It's the bullets, stupid.

If they wanted to employ the liberals' "reasoning" that was used in Roe, maybe Scalia and the boys will discover a "penumbra" emanating from the 2nd Amendment that would require the government to provide arms and ammo to all citizens so as to better exercise their 2nd Amendment rights.

All kidding aside, apart from the fun of watching all the Dem candidates tie themselves up in knots having to answer the question do they believe that the 2nd Amendment provides an individual right to bear arms while maintaning their belief in gun control, I do not believe that the either side on the Court would grant cert without already knowing that they would win on the merits. While I'm know for a fact that Justice Kennedy will be in the majority, I'm only pretty sure (80-90%) that he will be on the right side of upholding the Circuit Court's decision striking down DC's ban.

you have to remember that you couldn't kill 20 people in 10 seconds with a musket

I could.

If firearms can be regulated, then handguns can be outlawed. Rifles, shotguns, etc. would still be legal, but concealable handguns, no.

Sawed-off shotguns and pistol-grip stocks for rifles/shotguns are already illegal, because they allow for concealment. Outlaw handguns, let the hunters and home-defenders keep their rifles.

Seems a reasonable line to draw.

This article by Garry Wills might be useful.

http://www.potowmack.org/garwills.html

Shorter version: the Second Amendment deals with the militia, and only the militia. There may very well be other bases for the individual right to own a gun, such as the Ninth Amendment, natural law, tradition, etc.

Just a quick observation-- when I was teaching law school, I published a couple of articles that touched on the Second Amendment and I was overwhelmed at the massive email attack the NLRA generated on a nobody like me.

As for Mr. Drum's substantive reading of the Second Amendment, I would only point out that the text DOES talk about well-regulated militias, explicitly, but it DOES NOT ever mention guns or firearms or rifles or the like. Its reference to "keep and bear arms" is, of course, a term of art used in British law going back to centuries before there were firearms. We still use the same word today the same way-- "arms" as in "Strategic Arms Limitations Treaty"-- so unless one believes the Second Amendment's protection of well-regulated militias means I have an individual right to keep and bear nuclear weapons, then I cannot see how the amendment has anything to say about guns in particular or individual rights of any sort.

On the other hand, I suspect Mr.Drum's reading, which I honestly believe is the product of the most successful PR campaign of all time, may well prevail in the current judicial/social environment. Proof that a well-financed public campaign can influence jurisprudence quite significantly.

Since the Court re-wrote the question presented to include both DC's ban on guns and its mandatory trigger lock provisions, I would guess that the likely outcome is to split the baby: Absolute ban prohibited, reasonable regulations upheld. Just an educated guess, though.

Let's remember, though, that the 2d Amendment by its terms applies only to the federal government. Even if the Court rules that it protects some individual right to bear arms, in order for them to apply it to bar state/local regulation of firearms they would have to (in a later case) decide that the 2d Amendment was "incorporated" through the 14th Amendment's Due Process clause. (That's how certain of the other rights in the Bill of Rights -- not all of them, mind you -- have been deemed applicable to the states.) "Incorporation" is really going to go against the grain of the conservatives here -- at least, against their professed principles. Not that that will necessarily stop them, but it will be interesting to see the intellectual knots they would have to tie themselves up in.

So, if the court rules against DC, and that individuals have a right to own handguns, does this mean John Hinkley can buy a gun?

How do they wiggle out of the laws forbidding certain people from owning guns? When those people are not mentioned in the Constitution?

Sebastian writes:
"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."

Looks like you could regulate guns to me. Otherwise everyone has to be in a militia.

Looking at it the other way, everyone can keep and bear arms, but by that act, they become members of the militia, and the state has the power to regulate them. In particular, it needs to know who has arms, and where they are. It can summon them at need, and require them to be trained. And just as an army allows only certain soldiers to have certain kinds of arms, the state can regulate (within reason) what kinds of arms a citizen can possess.

"You can't ban 'em, but you can regulate 'em"

Well, you can ban them all you want, but just because the ban is in effect doesn't mean everyone just ups and says, "yep, no gun here."
Reality trumps theory.
That said, the smart course is that we regulate them, which is just fine with me. I would love to seem some regulations in place because there are some firearms that are just simply not meant to be in the hands of idiots (which imo, constitutes about 80% of the gun owners in this nation).

I actually had a guy ask me at work one day, "should I get a .357 magnum for home defense, or a .44 magnum?"
I asked him, "have you ever go shooting with one of those before?"
His look went blank, "A pistol...no."
I said, "You live in an apartment, don't you?"
To which he said, "yeah, I do...uh...why do you ask?"

Anybody who can't put together the two aforementioned ideas and reach a knowledgable conclusion should not own a gun, ever, period, end of discussion.

small correction to my earlier comment: the 2d Amendment does apply only to the federal gov't (so far), but it's probably not correct to say "by its terms." By its actual wording, it doesn't say one way or the other (most of the Bill of Rights amendments don't), but the Bill of Rights was very early on interpreted to only apply to the federal gov't (until the 14th amendment incorporation began in the 20th Century).

Wouldn't Original Doctrine (or whatever the gaggle of people who claim they want the Constitution to be "interpreted according to the knowledge of that time") mean that sure, you can have a gun, providing it's a flintlock musket?

There is no conflict whatever between individual gun ownership and regulation.

We have individual automobile ownership, with regulation. Appropriately, since cars, like guns, are potential deadly weapons and are often used in crimes. Why not simply apply the same level of licensing, identification, and regulation to guns as we do to cars?

If the Constitution had said something about the right to own donkey carts, I wonder if we would now have a crowd arguing that licensing of cars is unconstitutional.

It's the bullets, stupid.

"It isn't the bullet that kills you. It's the hole." Laurie Anderson

The Supreme Court agreed today to take up one of the great debates involving the Constitution and to rule squarely on whether the 2nd Amendment gives individuals the right to have a gun at home for self-defense.

Wow. That's pretty amazingly misleading summary of anything the Supreme Court could conceivably have done. They certainly did not agree to rule on a specific issue (much less squarely) they agreed to take a particular case, which centers around a specific issue, which means they are somewhat likely to rule on something related to that issue (though, of course, its always possible that they'll find some completely unrelated issue in the case dispositive and avoid the issue everyone cares about altogether; it would hardly be the first time they've done that.)

To portray them as agreeing to not only rule on a particular issue, but to rule squarely on it is beyond hyperbolic.

We have individual automobile ownership, with regulation. Appropriately, since cars, like guns, are potential deadly weapons and are often used in crimes. Why not simply apply the same level of licensing, identification, and regulation to guns as we do to cars?

That precise analogy was advanced by Chief Justice Warren Burger.

Otherwise everyone has to be in a militia.

The Constitution presupposes and ascribes the federal and state governments set roles in respect to a universal militia.

"It's the bullets, stupid."

And here in lies the genius of which I support.
Chris Rock mentioned about the fact that you cannot effectively regulate guns...which he is right.
However, you can certainly tax the hell out of the ammo, and price fixing ammo is a good thing too.

You want to own a .50 cal, high powered rifle...okay, how does $30.00 a round ($300.00/box of 10) sound to you?

You like the nifty sound of a .223 popping off early in the wee hours of the morning, excellent, how does $1.50 per round (or $30.00/box of 20) sound to you?

You like to flex your manliness with that Ruger .44 magnum, right on, how's $3.00 a round (or $150.00/box of 50) sound to you?

I think once the price is adjusted we'll find out how many people are willing to spend the money to support their Right.

Didn't the Supreme Court rule on the 2nd amendment in 1939?. And I think that case hasn't been overturned yet.

Well, the Second Amendment certainly doesn't say, "Congress shall pass no law respecting" the bearing of arms, does it?

I've looked at the history behind some of this in passing. Every able-bodied man was in the "militia" at the time (not women), so the intended effect of the "militia" phrase in the amendment is an interesting question, if that's an aid to construction.

Incidentally, my opinion is that the 2nd Amendment clearly creates an individual right, but that it is unusual in explicitly including a purpose clause. Since no Constitutional rights are ever interpreted as being unlimited, and their limitations are inferred from their (usually inferred) purposes, the boundaries of the 2nd Amendment right should be easier to infer since its purpose is explicit. Thus, the 2nd Amendment right will apply most strongly against the federal government within the jurisdiction of one of the 50 states, and when exercised in a context essential to the maintenance of a state militia; the more distant it gets from that situation, the more heavily other rights of persons, powers and prerogatives of government (state or federal) should be weighed against the 2nd Amendment right to keep and bear arms.

Where the federal government is acting in a direct governing role over federal territory, it will take on the role of the state, and where a state (or the feds acting in place of a state) restriction on weapon ownership is consistent with and part of the regulation of the militia, rather than a barrier to the existence of a citizen militia, the 2nd Amendment should be at its lowest ebb, and probably succumb to the police powers of the state (or the feds governing directly).

Now, again, that's my personal opinion, not the way the Court is likely to rule.

Political correctness is the supreme law of the land, but:

http://www.box.net/public/5ytbz81p68

"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them." (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)

"The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in his Federalist Paper No. 26.)

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -Thomas Jefferson

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first." -Thomas Jefferson

Didn't the Supreme Court rule on the 2nd amendment in 1939?. And I think that case hasn't been overturned yet.

Yes. United States v. Miller, 307 U.S. 174 (1939).

"Looking at it the other way, everyone can keep and bear arms, but by that act, they become members of the militia, and the state has the power to regulate them."

The germ of an interesting idea, here.

Whenever Kevin posts on a topic like this, it becomes difficult to differentiate parody from advocacy -- at least in the case of comments like those of Mark and "Free Lover of Freedom and Free Liberty" (the latter of which is parody all by itself) above.

Everybody knows a sawed off shotgun is the best home protector. But they're probably illegal. Make a terrible mess, too.

It's vague as to what is meant by "militia," and what is meant by a "free state." Does the 2nd Amendment exist to provide further protection of the national entity state or armed citizens to protect the individual states from central tyranny?

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.

Clearly a "militia" isn't necessary for a nation-state with a standing army.

To me it can only be interpreted that the Founding Fathers didn't even trust the central government of the democracy they were creating to not abridge the rest of the constitution on a regular basis, and that the vaguely described "well regulated militia" was something completely different than today's National Guard, which others have suggested, but is just an extension the military.

In other words, did they have in mind today's yahoos who run around in the woods in camo "playing army" with personal arsenals as the militia? Are these people, as most of them would argue, the last defense against internal repression and/or the UN forces they believe to be waiting in Canada to enslave us under one world government?

Luther, stop cherry-picking those quotes. Especially the Patrick Henry one. Here's the full quote:

Our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall he doubly armed. The great object is that every man [of the militia] be armed. But can the people afford to pay for double sets of arms, &c? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case.

Henry is clearly pointing out that if the various state governments could not properly equip their militias, the federal government could not, either.

I think cmdicely's construction is a nice elaboration of Jonrysh's point that I quote above.

One of the forgotten points about gun rights: if you really believe in strict construction/original intent, then shouldn't strictness apply to the interpretation of concepts referred to? For example, the right to keep and bear should refer to the sort of "arms" referenced by the writers, using what existed at the time. Maybe the Framers wouldn't have wanted citizens to have semi-automatic, rifles shooting ogive bullets at 3,000 fps, no? Conservatives never bring that up, when they talk about original intent (and the issue goes beyond just application to guns, or course: communications media, military issues, etc.) I still think we have the right to keep and bear modern arms (which BTW does not imply either secrecy of ownership nor concealability), but I don't believe in strict construction/original intent, so I'm not a hypocrit.

tyrannogenius

I got skin in this one -- a brother and his wife murdered in a robbery by a junkie. The weapon was a .40 calibre pistol owned by a guy who kept it in his house -- by his bed, I think, with the (relatively hard to get) bullets. A heroin addict graduated from smash and grab burglaries when he kicked in the door, found some cash -- and the weapon. The guy's first victim, not long before my brother and his wife, was also killed in a robbery: he had a gun for protection in his store. It was in the back room when he died.

IIRC, the Supremes have long held that We, the People gave Congress the authority to regulate firearms, including handguns: US v Miller was about a sawed off shotgun. (Okay, so I dunno if Miller actually sawed off the barrel: it was short.) The only limitation the Second Amendment places on the Congress is that it cannot regulate firearms SUCH THAT the regulations interfere with the states' capacity to organize a "well regulated militia".

"In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen 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...." thus, the 1939 case.

Seems to me that anybody could argue to the Supremes with that exact language, replacing the words that mean 'sawed off shotgun' with basically any weapon that any state chose to regulate: cuz it's up to the STATES how their militiae are regulated. Since Miller has been Constitutional law for 70 years, and I dunno that the need for less well regulated state militia has been established since, the precedent looks solid.

Kevin may be correct that the Supremes will wiggle out of this on the theory that the District is not a state, of course: but I dunno that this particular NRA argument looks compelling.

The true test of political leadership involves forthrightly and publicly confronting real problems, regardless of any inherent or perceived risks, and developing responsible and practical proposals for the public to consider as potential solutions.

Political cowards will seek always to maintain the present status quo, however fleeting it might be, either by ignoring such problems altogether, or by proposing painless, risk-adverse solutions that merely postpone the consequences until someone else is on watch.

Political demagogues and tyrants are often defined by their willingness to manufacture faux controversy in order to distract the public's attention from real problems. Failing that, they will seek to misrepresent those same problems by either presenting the public with a series of patently false choices, or by offering up to citizens one or more all-too-conveniently available scapegoats.

Any research into who owned the artillery? I bet not your Minutemen. And was there any restriction on owning artillery, or was that not necessary given the cost and the absence of "gunnutus modernicus" at the time.

@Kevin

Your response is unfortunately what I have come to expect. Moderation without a basis in reason.

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

Jefferson should have realized how easy it is to get people to go along with tyranny. The first step for a would-be tyrant is to get an NRA endorsement.

Jonyrsh

If I follow you, then in order to own a gun, you must serve in a national militia at the very least. By serving, you still aren't guaranteed the ability to own every gun made by mankind. Or shoot them either.

The closest thing to that militia being the National Guard.

I've got no problem with that. Now there's a reason for wingnuts to join up. Buy a gun, serve your country. But for real.

I don't disagree, Buford, but you have to remember that you couldn't kill 20 people in 10 seconds with a musket. It's well past time to re-evaluate what an armed citizen militia means in the modern age.

In 1787 the .75-caliber Brown Bess musket was standard issue to the British army and was one of the most fearsome and man-portable weapons of its day. It was the state-of-the-art in infantry weapons.

The men who wrote the First Amendment were surely thinking of quill pens, tongues and hand-operated printing presses. They couldn't send dangerous ideas around the world with the push of a button. Would you also say it is well past time to evaluate what freedoms of speech/press mean in the modern age? ;)

The Bill of Rights as a salad bar? Haven't we had enough of that from the Bushevicks?

TWO POINTS:

1) Any student of American history knows the early drafts of the 2nd Amendment contained a prohibition on a standing army, which makes the meaning and intent of the dependent clause, "A well-regulated militia, being necessary to the security of a Free State...", very clear.
2) The test of any law is, when taken to it's logical extreme, if it makes any sense. Therefore, if any person has an unrestricted right to bear arms, should Bill Gates be allowed to bear nuclear arms? He could certainly afford them! How about Warren Buffett? Should he be allowed to "bear" chemical weapons? If there are no limits on this right, why not?

It's pretty clear, isn't it? The Founders never intended the 2nd Amendment to ban any regulation of deadly weapons.

Well, Google coughed this up: "American Artillery grew out of a small number of militia artillery companies in the Colonies. When war came, the members of these companies brought to the Patriot cause their expertise and their guns."

Wonder if "their guns" refers to "members" or "companies"? Did the members have cannon on the back porch? Kind of doubt it.

::Since the Court re-wrote the question presented to include both DC's ban on guns and its mandatory trigger lock provisions, I would guess that the likely outcome is to split the baby: Absolute ban prohibited, reasonable regulations upheld. Just an educated guess, though.::

Wonder if they could pull from precedent in another area and apply an "undue burden" standard...

There were no privately owned artillery pieces on land in North America in 1787. There were lots of cannon and mankillers on ships, but that's a different Constitutional story -- "to RAISE an army and maintain a navy", plus the letters of marque clause.

"In 1787 the .75-caliber Brown Bess musket was standard issue to the British army and was one of the most fearsome and man-portable weapons of its day..." It was also more or less useless as a hunting weapon -- too big for small game, and not accurate enough for big critters.

If you owned one, it wasn't dual-use. You could argue that cuz the Founders intended to protect the people to own big honking muskets in 1787, in addition to the smaller calibre rifles they used for food, so a 21st century American can own.... well, all the weapons that the Supreme Court has ruled both Congress and the states can regulate.

It was PRECISELY private ownership of the standard issue military weapon "being necessary for the security of a Free state" that caused the Founders to write and accept "a well regulated militia" as the premise and purpose of the right.

If the Constitutional Convention had wanted to write "Congress shall make no law to infringe on the right of the people to bear arms..." they'd have SAID so.

If the Constitutional Convention had wanted to write "Congress shall make no law to infringe on the right of the people to bear arms..." they'd have SAID so.

Another way to look it is to examine those whose religious scruples (for example, Quakers) forbade them to serve in the military. Did this mean that they could not have a rifle for hunting? Of course not, because "keeping and bearing arms," which is a legal term of art, does NOT refer to possessing guns for personal use.

It is quite depressing that an 18th century shoe should be required to fit a 21st century foot. So much of the deal of 1787 is anachronistic and inapplicable to our current interests, or it simply does not address our present concerns in any meaningful way. The militia interests of the time were practical and temporal; they were not derived from the reflections of John Locke. One of the problems of old and unreformed constitutions is that any meaning can be injected into the text as the conditions of life become ever more abstracted from the realities of past. The Bush administration’s lawyers have no problem constructing an argument for a constitutionally mandated unitary executive. If you get enough of them on the Supreme Court it becomes true.

Wonder if "their guns" refers to "members" or "companies"? Did the members have cannon on the back porch? Kind of doubt it. Posted by: David in NY

David, is this just some coy spin on the army and marine boot camp mantra "This is my rifle, this is my gun"?

Conservative Against Bush: "In 1787 the .75-caliber Brown Bess musket was standard issue to the British army and was one of the most fearsome and man-portable weapons of its day. It was the state-of-the-art in infantry weapons."

The single-shot, muzzle-loaded "Brown Bess" was at its most fearsome when such weapons were fired en masse and in rolling sequence across a broad front line, thus allowing a military unit to achieve maximum firepower over a wide swath of the immediate territory before its aformentioned front line.

However, its effective range as an individual weapon was perhaps 100 yards, and that was only for the very best of marksmen. Further, the finest soldier or sharpshooter could at best squeeze off one round every fifteen seconds.

Therefore, a solitary rifleman who failed to bring down or immobilize his fast-approaching enemy with that one shot was laid entirely vulnerable. In such close-quartered combat, his 10-lb. rifle was most effective when fixed with it's standard-issue 17-in. cross-section bayonet, or when it was wielded as a club or bludgeon.

Deflator, the Founders discussed this very issue. It's in the Federalist Papers. They wanted the
citizens to have parity with infantry soldiers. Soldiers in the late 1700s were issued muskets, but not large field pieces. In 2007, soldiers are issued M-16s, M-249s, grenades, etc. but not 105mm howitzers, tanks and and atomic bombs.

Google "The Embarrassing Second Amendment" by LIBERAL law professor Sanford Levinson.

Virginia sez: "We have individual automobile ownership, with regulation. Appropriately, since cars, like guns, are potential deadly weapons and are often used in crimes. Why not simply apply the same level of licensing, identification, and regulation to guns as we do to cars?"

For one thing, I don't know of anyone arguing that the mere desire to own an automobile is evil and the mark of a potential killer. As far as I know automobile registration was not advocated as a "first step" by automobile-haters who stated that they'd just as soon not have ANY cars in private hands. Driving is also a luxury not explicitly mentioned in the Bill of Rights. But I will overlook all that for the sake of argument. Here in the America you can buy as many motorcycles, cars, or trucks of any size as you want, and you only need to register them if you plan to operate them on public property. If you DO want to use them on public property, you can get a license to do so at age 16. This license is recognized in all 50 states. NO waiting periods, no background checks, nothing. No, treating guns like cars doesn't sound half-bad... ;-)

Well, heck. Isn't this one the American Historical Association ought to file an amicus in, perhaps favoring neither party (not sure you can do the latter)?

Here's a question. What do people think the odds are of the Supreme Court holding that citizens have an unregulated right to own an M-249 (to wit, a machine gun)? (This is, I think the implication of Conservative Against Bush's argument.)

I say close to zero, but am interested in others' opinion (leave aside considerations of Constitutional construction and go with your gut).

(And no, JeffI, hadn't thought of that.)

Google "The Embarrassing Second Amendment" by LIBERAL law professor Sanford Levinson.

Perhaps you should. And go past the first entry, where you will learn that Professor Levinson is mistaken in his opinion.

It might also be helpful to note, for purposes of this discussion, that most able-bodied males in the late 18th century colonial America were required by law to own muskets, because they were inherently considered part of the local militia, which was immediately -- and more often than not, solely -- responsible for the safety and well-being of their respective towns and villages. That is the genesis of the Constitution's Second Amendment.

Deflator, the Founders discussed this very issue. It's in the Federalist Papers. They wanted the citizens to have parity with infantry soldiers.
Posted by: Conservative Against Bush

Careful there. The "Founders" indeed discussed this issue. But that's not necessarily the same discussion that went on in the Federalist Papers, which was written by just three of the Founding Fathers. The Federalists, in many ways, are analogous to today's right wingers. Hamilton and Jefferson were often on the opposite of many issues.

If you DO want to use them on public property, you can get a license to do so at age 16. This license is recognized in all 50 states. NO waiting periods, no background checks, nothing. No, treating guns like cars doesn't sound half-bad... ;-)
Posted by: Conservative Against Bush

It's not "nothing" There's the significant amount of classroom work and behind-the-wheel training that you have to have; the written, driving, and vision test that you must pass; the requirement that you must have auto insurance in order to exercise that right...are you sure you want to treat guns exactly like cars?

David in NY--the AHA will probably steer clear of anything as even-handed as a "plague upon both your houses" amicus brief--my professional colleagues tend to be NAW, or Nervous About Weapons (I won't call this liberal or left-wing, since it's really neither, although often mistaken for one or the other). The NAW syndrome is often found afflicting those who have been made the victims of coercion with a weapon without having been similarly outfitted (which just might have either prevented or at least terminated the coercion). It also springs from a fundamental belief in the possibility of a non-violent society (admirable!) and a conviction that such is impossible without forced abandonment of private weapons (debatable and likely foolhardy). Since it's a hybrid of emotion and belief, it is ultimately unchallengeable; to do so leads to frustration on the challenger's side and defensiveness on the part of the true believer. Sigh.

By the way, I noticed some discussion earlier about the merits or deficiencies of the famed Brown Bess musket. I speak from some years' practice with a similar weapon when I note that it is an admirable small-game getter. Yes, it was designed as a volley weapon and yes, with round-ball it's not accurate out past 100 yards or so, but as with any hunting technology, it works just fine as long as the user figures out what it _will_ do, rather than ticking off all of the things that it won't, can't or doesn't. Hey, sounds like an approach to studying the Constitution.

It's not "nothing" There's the significant amount of classroom work and behind-the-wheel training that you have to have; . . . Posted by: DJ

Not unless laws have changed. Oregon, which used to have some of the worst drivers in the country, didn't require driver's education up through the 1980s. I don't know if this has changed.

But the point, often made, is well-taken. No one should be allowed to own a gun of any kind without passing a licensing class with both a written and "practical" examination.

I once got into a discussion with a certified gun crazy. He asked me if I believed that everyone had a right to a gun. I said no, I had a right to have a gun but obviously he didn't.
He had no answer.

Not to beat it to death, but guns aren't the problem, they need to be heavily regulated.

I think this talk about citizen militia is moot. It has already been pretty much nullified, under Bush and a Republican led congress, no less.

In early 2006, the 109th Congress passed a controversial bill which grants the President the right to commandeer federal or state National Guard Troops and use them inside the United States. This bill, entitled the John Warner Defense Appropriation Act for Fiscal Year 2007 (H.R. 5122.ENR), contains a provision, (Section 1076)

Don't we already have (state) laws barring people who have been judged nuts from having guns? How do those square with the 2nd Amendment?

(My own feeling is you shouldn't be allowed to own a gun until you prove you know how to use it correctly. We have enough drunk weekend warriors running around Upstate NY shooting people and cows for me to believe in "unrestricted use")

(It truly never ceases to amaze me how Dice can miss the point: "They certainly did not agree to rule on a specific issue...".)

The question: "“Whether the following provisions — D.C. Code secs. 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?"

The precedent: "In the absence of any evidence tending to show that possession or use of [particular type of weapon] 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."

The Supremes, particularly this SCOTUS, could choose to overturn Miller: but somebody would have to make a helluva case.

hdware, you are absolutely on the mark in your assessment.

My point was not to engage in a debate over the merits or demerits of the "Brown Bess" musket as a hunting or infantry weapon, but to highlight the folly of conflating that single-shot, muzzle-loading rifle with today's multi-shot, rapid-fire automatic weaponry by disclosing the former's very real limitations as an individual weapon of defense.

Proponents of an unfettered interpretation of the Second Amendment are literally comparing apples and oranges, when they seek to minimize the vast chasm of difference between the respective weaponry of two very distinct historical eras.

It is quite depressing that an 18th century shoe should be required to fit a 21st century foot.

Well, yeah, many of the Founders believed, for good cause, that the Constitution would need thoroughly reviewed and replaced (or substantially updated) regularly, too.

Unfortunately, even people who are dedicated to the original intent of the text rarely pay any attention to that original meta-Constitutional intent.

Proponents of an unfettered interpretation of the Second Amendment are literally comparing apples and oranges, when they seek to minimize the vast chasm of difference between the respective weaponry of two very distinct historical eras.

There's a difference between what the crafters of the 2nd Amendment actually intended, and what one thinks they might have intended had they foreseen modern firearms.

And there is a difference, also, between stating (either because of "original intent" or based on some other interpretive theory) that one reading of the Constitution is the right way to apply the Second Amendment and, on the other hand, saying that it is good policy. It is quite possible to believe (and certainly many people claim to) that the Court shouldn't be substituting its policy judgements for proper application of the substantive provisions of the Constitution where those provisions don't call for such a judgement, and if the substnative provisions of the Constitution are bad policy, they should be changed through amendment, not by the Court.

It's odd that this seems so important. Remember, Washington DC is the only place in the country that has, or is likely to have, as stringent a law as this. It may be the only place that has ever had such a law. The Court could strike it down and make hardly a ripple in the legal or practical framework of the country. I think the same could probably be said of upholding the law, except for the exploded heads of most NRA members.

The real question is the degree of regulation of arms-bearing that is permitted. My guess: It will certainly be constitutional to criminalize possession of all firearms by felons, the mentally unfit and other such categories, as federal law does now. Since no one has taken up my invitation above to consider whether states and the Congress will retain the power to regulate automatic, semi-automatic, explosive, and other weapons, I reiterate my view that they will, almost certainly.

The Supreme Court will fundamentally vote for the status quo.

Kevin is correct on the proper interpretation of the second amendment. I think the Court will reach a similar conclusion and the issue probably will not be very important in the election.

BTW, as for why we need the second Amendment: I would say, not just to defend against an overreaching government, but against an overreaching aristocracy as well if need be. Let the conservatives smoke on that.

Firearms are already heavily regulated by the states and the federal government.

Just a few examples: California has magazine capacity laws, bans possession of 'assault weapons' the feds ban full-automatic weapons and manufacture or import of large-capacity magazines, silencers, armor-piercing ammunition, shotguns with barrels shorter than 18" etc etc and yada. (it goes on and on).

Firearms transactions must take place using a Federal Firearms License. (etc). There's already lots of 'reasonable regulation' type laws on the books.

What seems to be at stake in this case is if the state can ban ownership of what would be described as a very common and conventional class of weapon. (pistols).

> "It is quite depressing that an 18th century shoe should be required to fit a 21st century foot."

That's right. In this day of worldwide NSA wiretaps it is simply quaint to imagine such archaic concepts as 'The people being secure in their persons,houses, papers and effects agains unreasonable searches and seizures... and that speedy and public trial part... what a hoot! How are we ever going to have secret courts with sealed verdicts?

The above are examples of why many people resist tampering with the bill of rights. They are fragile, and history teaches that given an inch, governments will take the proverbial mile.

(This is also why the NRA reacts with what appears to be paranoia about any gun laws)

The idea of that having small arms widely distributed so that the federal government can't go all totalitarian is simply not supported by the history of modern warfare.

The simple fact is that a militia can't go mano-a-mano with a well-trained, well-equipped regular army, guns or no guns, if that army is prepared to use all the means at its disposal to fight.

What a militia can do is use bombs and booby traps, neither of which are protected by most interpretations of the 2nd amendment.

Look at what's happening in Iraq. It's not guys with hunting rifles picking off American troops, it's guys taking old artillery shells and turning them into IEDs.

Should the right to keep your own supply of shaped-charge IEDs be protected?

David sez: "The Supreme Court will fundamentally vote for the status quo."

That's true, but it's also more significant than it sounds: for several decades, the NRA has essentially organized a vocal minority to consider the status quo unConstitutional AND a slide down the slippery slope toward confiscation.

I dunno how you get a 'status quo' decision out of the question: do the DC laws "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?"

As is his habit, Dice steers the discussion away from that, the central point on which the Supremes decided to hear arguments. (Why anybody thinks this yutz knows the cardinal directions is, well...)

If the Supremes say "no", a major piece of the NRA's symbiosis with the Republican Party evaporates.

If they say "yes", they will have overturned a precedent on the scale of Plessy, but WITHOUT any proven need: no facts to show that lockless privately owned handguns in DC are as essential to its nonexistent militia, the way 'separate but equal' wasn't possible.

We're gonna get the arguments AND the decision during a Presidential election year -- so NOT following analyses by the likes of Dice might be kinda important: FOCUS.

Prediction: in the end, Roberts is going to side with precedent AND with the Court's credibility: bracketing the Bush administration with two obviously partisan decisions isn't what he wants to do with his Chief-hood.

Actually, Americanist, maybe I'm wrong that they'll keep the status quo. They will certainly, I think, choose a rule that does not invalidate any federal law, disappointing the fondest hopes of the NRA. But they could invalidate the more restrictive laws such as those in cities like New York, which forbids guns without permits, and DC, and maybe other urban places I don't know about. This would piss off the non-NRA, however. Or they could just strike down the DC law, but leave the scope of permissible regulation unclear and "for another day" as they like to say. That would look nice for the NRA, but eventually, they'll be unhappy too.

From a practical standpoint, the second ammendment provides us with citizens well enough armed to be useful in combat.

Today that means assault rifles, anti-tank weapons and high explosives at least.

I'm one of those people who lives within wide stretches of nothing out in the West, so the thought doesn't bother me. It's already somewhat of a reality out here anyway with some people.

Should the right to keep your own supply of shaped-charge IEDs be protected?

Yes. Our interpretation of the second Ammendment should change as the nature of war changes.

Many private individuals did own cannons in the 18th century.

The amendment's purpose is to prevent the federal government from abolishing state militias in favor of maintaining a standing army. It did not confer a constitutional individual right to own a gun. Gun ownership was regulated at the state level.

The Framers feared standing armies, and wanted a guarantee that the national government could not abolish the state militias and maintain a standing army during peacetime.

George Mason refused to sign the Constitution w/o a clause restricting the congressional power to raise armies to empowering state militias and "against the dangers of regular troops or standing armies in time of peace." The Virginia ratifying convention proposed an amendment, based on Art. 13 of the Va. Dec.of Rights (still in effect) that included the eventual 2nd amend. language but also stated that: "standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." It was this amendment upon which Madison based his draft of the 2nd amendment.
Hopefully, "bad history" won't carry the day in this case. The notion that the amend. conferred such a right is simply wrong.

Happiness is a warm gun.

Should the right to keep your own supply of shaped-charge IEDs be protected?

Not only that, but the 2ndA also protects the right of Iranians to supply them to Iraqis....

Thomas Jefferson's own thoughts on the 2nd Amendment:

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

Those who would surmise otherwise are either extremely naive or are NOT reflecting on the relevant history of the pre-Revolutionary period.

Regardless of the "explanatory" rationale which precedes it, the right itself is stated unequivocally and is thus absolute:

"... the right of the people to keep and bear arms shall not be infringed."

And that explanatory rationale, read properly, merely reinforces Jefferson's assertion:

"A well regulated militia, being necessary to the security of a free state, ...

[Emphasis added.]

No government-controlled "National Guard" ensures the security of free states. And as things stand currently under the Bush Reich, the Guard -- no longer primarily an emergency functionary of state governors -- has been "appropriated" as a potential instrument of Federal repression.

Again, the right itself is specifically ascribed not to "militias", but to the people, so that they may form "well-regulated militias" as needed.

The Founders most assuredly knew exactly what they were doing, since the states themselves had insisted on those restrictions to the power of the Federal government as a pre-condition for ratification of the Constitution.
.

Can anybody dig up any writing or public speaking that Roberts, Alito, or Kennedy has done on this issue? From what I can remember, it did not come up during Roberts' or Alito's confirmation hearings.

I think that this id a great discussion, but trying to predict how the court will rule will be an exercise in futility unless more research into the individual justices is done.

I'll be interested to see how strict constructionists Scalia & Thomas wiggle their way around the fact that the word "guns" is not mentioned anywhere in the 2nd amendment!

My reading:

There is a right to bear arms, but it isn't protected except in the context of a militia.

For what it's worth, I'll go with the idea that the 2nd amendment is intended to maintain parity between the citizenry and the typical infantryman. So grenades, rpg's, etc.. are protected. I'll also go with the idea that it grants a right to regulate to the govt, to the effect of automobiles: You should be required to carry liability insurance, the govt. has the right to require registration, competency tests (but must also provide training adequate to meet the regulatory requirement at either no charge or at a trivial cost), and may hold you accountable for any harm caused by your weapons, i.e., if stolen and used in a murder, you are not guilty of murder, but are liable for wrongful death, and would have to carry appropriate liability insurance. For a rifle, even a semi-automatic assault rifle, this should be trivial, perhaps subsidized, as high rates would impose an unfair burden and effectively deny or restrict the basic ownership guaranteed in the 2nd amendment. If you want an RPG or a fully auto, or machine gun, the insurance burden would be greater, proportional to the potential for harm. At a million a life, a fully auto m16 would be a bit pricey to own in your home. However, you could perhaps keep it at a gun club, which, with a good vault and 24/7 security & owner access ( just in case the fictional UN forces don't call ahead before invading), would pay vastly lower liability than an easy to burglarize private home would.

I favor ownership. I'm a buddhist-taoist, and hold all life sacred, but I none the less accept the truth in the old western adage "god made man and colt made him equal."

I think too few contemporary progressives have sufficient experience with self defense of any kind to understand how important guns were in establishing democracy.

I've studied various Martial arts on and off since I was a kid. I'm 46 now. I have almost 17 years in AIkido (my favorite) alone, but I also have significant training in Wing Chun Kung Fu, Nisei Goju Karate-Do, and some Tai Chi Chuan. I also have Japanese sword and spear training. An untrained person twice my size (I'm 6' 1/2", and weigh 163 lbs. I have about 8% body fat, and ride a bike about 50 miles everyday since my teens, in NYC traffic.) has absolutely NO chance against me at all, unless he has a gun, which will stop me dead, instantly, with only a few months training. The armies of the Crowned heads of Europe were professionals, highly trained in sword, spear, bayonet, horsemanship, archery, etc... This was part of the lawful obligation of the nobility (my father's ancestors were the hereditary Lords of County Decies in Ireland), and the purpose for which they were deeded & entitled in the first place. Until the development of light, man portable, cheap firearms, a peasant revolt lasted until the knights showed up, and then they were defeated. Any reluctance to execute every last one was predicated entirely on the impact it would have on farm labor, and, thence the lord's income and wealth, since the peasants were part of his wealth and property.

I wouldn't stand a chance against 17th century nobility in a head to head. My training is good, but not as good as theirs was. I am a left-wing, green, progressive. BUt I have to agree with the right wing on this one. It's supposed to establish parity, and that's the only way you keep democracy. The only way.

Nuff said.

I wonder if they'll rule that there's a constitutional right to take your gun on an airplane.

Disputo - do people really think they're going to defend themselves against the government with GUNS? They'd better at the very lea