I felt it timely to discuss the “supreme’s” today. No, not Dianna Ross and the Supreme’s of Motown fame. Today we cover the U.S. Supreme Court.
June 23rd is the third anniversary of the dreadful Supreme Court decision regarding the Fifth Amendment as applied to the taking of Susette Kelo’s home in New London, CT.
Over the years other Amendments have been challenged such as our First Amendment freedom of speech. One famous (1919) case on the First Amendment heard by the high court, was Schenck v. United States, where Justice Oliver Wendell Holmes stated in this case his famous aphorism about “falsely shouting fire in a theatre” and set forth a “clear and present danger test” to judge whether speech is protected by the First Amendment.
Not to be overlooked today is another Constitution challenge being heard by our high court. The Second Amendment to the U.S. Constitution. “Gun rights and gun control advocates alike are anxiously awaiting the high court’s ruling, the first time since 1939 that the nation’s top justices have tackled the Second Amendment.”
The Second Amendment to the U.S. Constitution reads:
“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 United States Supreme Court to hear “District of Columbia v. Heller-a case in which plaintiffs challenge the unconstitutional gun ban in the nation’s capital. The District of Columbia appealed a lower court’s ruling earlier this year affirming that the Second Amendment of the Constitution protects an individual right to keep and bear arms, and that the District’s bans on handguns, carrying firearms within the home, and possession of loaded or operable firearms for self-defense violate that right.”
For some recent background on this appeal I offer the following specifics from ABC News.
At issue is one of the great unresolved constitutional questions: Does the Second Amendment protect an individual’s right to keep and carry a gun, or does it only protect a state’s right to arm a militia?
The case came to the high court after Washington, D.C., resident Shelly Parker sued the city over its gun control law, which has been in effect since 1976. It is one of the toughest gun laws in the nation, banning handguns and requiring shotguns to be locked up.
“The criminals have the guns,” Parker said. “If you are a law-abiding citizen, the law in this city says you do not have a gun.” A lower court ruled in favor of Parker and overturned the gun law.
But the city’s mayor, Adrian Fenty, is fighting to keep the gun control law on the books. He says tough gun laws are essential in the city, where the crime rate is among the highest in the nation.
“Whatever right the Second Amendment guarantees, it does not require the district to stand by while its citizens die,” said.
To read the entire ABC News report simply click on the following link:
http://abcnews.go.com/TheLaw/SCOTUS/story?id=4464727&page=1
Juice readers. Although not always predictable, having a conservative court today, what are your expectations as to their ruling in this case?
And as we think about the Supreme Court, the next president of the U.S. may appoint two or three replacements in the next eight years. Folks, we are talking about lifetime appointments. Think about that fact as you decide whom to vote for this November.
Larry,
You’re just trying to keep me on a rolling boil here, aren’t you? 😉
It means just what it says. What part of “shall not infringe” is so difficult for anyone to understand. I fail to understand how anyone with any knowledge of history, or the English language has such a hard time figuring this one out.
I’ll write more this evening when I finish my work.
The decision didn’t come down today as was anticipated. Instead, its likely to come on Wednesday or Thursday. Wild, but educated, speculation on volokh.com is that Scalia will be writing the decision, since he is the only one not to write an opinion from the March cases.
Take from that what you may, but Scalia sure has disappointed before when it comes to libertarian/conservative opinions. Everyone expects, at the very least, an individualist perspective, with some measure of reasonableness allowed for restrictions. The best possible decision would be an individualist approach and incorporation of the 2nd amendment into the 14th amendment. Not likely, but possible.
Stephen,
Well said!
BTW the ABC link starts off wrong, it’s not the first case in 70 years, that’s just media spin.
Juice readers. To clarify the “first time since 1939” dispute I quote the following court action:
“Congress passed the National Firearms Act of 1934. The act, which provided for taxation and registration of automatic weapons and sawed‐off shotguns, generated the principal Second Amendment case, United States v. Miller (1939). The unanimous opinion, authored by Justice James C. McReynolds, noted that the Second Amendment did not protect the right of citizens to own firearms that were not ordinary militia weapons. As the defendant in Miller had been charged with possession of an unregistered sawed‐off shotgun, the Court noted that it had no evidence that such a weapon constituted ordinary militia equipment.
Since Miller, the Supreme Court has not directly addressed the issue.”
Stephen.
Thanks for the update. I had a feeling that we would not hear from the court today as I checked numerous news sources. It is appropriate to mention the Supreme Court as I joined other founding members of the Susette Kelo Liberty Club.
The right to bear arms is right up there with the right to own property that cannot be taken by any government agency for “private” use when you have no desire to sell. Today is the third anniversary of the Supreme Court’s Kelo decision as stated in the post.
I uploaded two pretty good overviews of the 2nd Amendment and the Miller case on my website. Just click the links to download the pdf files. Eugene Volokh also has a webpage with some great information on the 2nd Amendment. http://www.law.ucla.edu/volokh/2amteach/sources.htm
Carl, I agree with you up to a point. “shall not infringe” is pretty clear, but nobody disagrees that there can be reasonable restrictions on the press, free speech, assembly, etc. without actually violating the 1st amendment, and those rights are far more culturally ingrained. Creating regulatory restrictions on firearms to criminals, minors, mentally ill persons, etc. are all seen as reasonable regulations. We must all show identification, prove citizenship,etc. when registering to vote and the right to vote is quite clearly protected in the Constitution. Also, registration laws are not technically an infringement, neither is probably background checks, and other regulations.
I hope Heller rightfully incorporates the 2nd Amendment into the 14th, but even if it does, I wouldn’t expect many of the draconian gun laws to go away overnight.
cheers
s
oops.. here is the link to my website with the pdf files… sorry
http://www.stephenanuno.com/second_amendment.html
From Scotusblog.com I found the following text which those interested in peeking under the covers of this Second Amendment case can speculate as to which direction the Nine Justices might lean:
“After a hiatus of 68 years, the Supreme Court agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?
The city of Washington’s appeal (District of Columbia v. Heller, 07-290) seeking to revive its flat ban on private possession of handguns is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the Second Amendment right is a personal one, at least to have a gun for self-defense in one’s own home. (The Court took no action on Tuesday on a conditional cross-petition, Parker, et al., v. District of Columbia, 07-335, an appeal by five District residents seeking to join in the case. The absence of any action may mean that the Court has decided not to hear that case. If that is so, it will be indicated in an order next Monday. The Court also may simply be holding the case until it decides the Heller case.)
The Justices chose to write out for themselves the constitutional question they will undertake to answer in Heller. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.
Here is the way the Court phrased the granted issue:
“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 first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident — have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.
The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states.
Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.
One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that….So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.”
The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.”
Looks like I am going to have to retract my claim above about the ABC start, all of the ones I was thinking of are circuit court rulings…sorry. Larry you’re correct about the direct ruling part.
more on the way shortly…
Much has been made lately about the phrase “shall not be infringed.” I don’t believe that this should be the immediate inquiry at bar. The proper inquiry should focus on “the right of the people.” Talk about plain English interpretations, when did “the people” ever mean the State, or the Militia. While the State and Militia are groups composed of people, it’s is not meant for the group to claim any right not expressly given.
A small sampling from the Bill of Rights perhaps . . . The First Amendment, the people’s right of speech, assembly, and petition. The only group right is that given specifically to the Press. The Third, requires the consent of the individual owner, prior to the quartering of troops in one’s home. The Forth, a persons protections re: search and seizure.
The Fifth Amendment, the requirement of a Grand Jury before charging an individual with capital crimes. A specific exemption is given for Naval Forces and the Militia, in time of actual war. As to the remainder of the Fifth’s many protections, they also reside with the individual. There is of course my notable disgust with the Kelo decision re: Eminent Domain.
The Sixth, a delineation of an individual’s right in a criminal prosecution. The Seventh and Eighth do not mention the individual, but clearly deal with their rights during court proceedings.
The Ninth and Tenth Amendments both clearly express the belief that all constitutional rights belong to the individual, unless specifically reserved to the Federal Government or to the States.
Not to belabor the point, but the Founder’s were explicit in their use of language when writing the Bill of Rights. This was clear up the vagaries left behind in the Constitution, to appease the many States bothered by the lack of a list of specific rights. These amendments allowed for the ratification to happen and the laying of a stable foundation for our new country. Of course the Kelo decision, and others, have been chipping away at that foundation ever since . . . but that’s another thread.
I can’t imagine that SCOTUS wouldn’t both recognize the individual Right as well as incorporation. However logic is always a weak tool when trying to guess what courts will do. Especially when the potential social stakes are so high.
This case is not the perfect storm kind of case that I would have liked to have seen go to the courts, but it’s the one we have. I hope it goes well. As Tanya Metaksa once said to me, “So are you’re willing to bet your Rights they will decide the way you see it? You could lose for any number of reasons. So you want the best case you can get, that way you at least minimize the risk of loosing.” Those words stuck with me!
So as we wait for the magic musings of the robed ones to be “handed down” to the rest of us mere mortals. We can only hope that The Constitution is upheld as law of the land. We need rules that are, in form and function clear for all of us to play the game of life by. Something we can count on.
Micheal and Carl.
As we follow the rulings of those nine powerful men in long black robes, and their Kelo decision in which the long established word “use” is changed to public “purpose” I take nothing for granted.
Looking ahead, with a new commander in-chief who potentially can appoint upwards of three Justices in the next eight years, is very troubling.
You’re very correct Vern. It’s the highest issue in my mind this time around.
lol…vern…I ment Larry, sorry Larry!
thinking about vern’s comments on George.