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| Supreme Court to address limits of gun control |
| 2010-03-02 |
| I snipped all the CNN-y, touchy, feely stuff. Otis McDonald and Diane Latiker share much in common as residents of Chicago's South Side. Longtime community activists, they both have seen the good and bad their neighborhoods have to offer. They are each fighting for change, especially to stem the growing murder rates among African-American and Hispanic youths, who are dying at the hands of one another. Their solutions to the problem put them at odds, however; and their struggles -- part of larger crisis striking cities nationwide -- will be the backdrop for one of the biggest cases to come before the Supreme Court in years. At issue is one the justices have been timid over the decades at confronting: Just how far does the Second Amendment give citizens the right to protect themselves? The court will ultimately decide two fundamental questions: Do strict state and local gun control laws violate the constitutional "right to keep and bear arms"? And can an individual's right to own a weapon extend beyond federal jurisdiction? The basic questions have remained largely unanswered and give the conservative majority on the high court another chance to allow Americans expanded rights to own weapons. The amendment states: "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 specific case deals with Chicago's longstanding ban on handguns. Latiker supports the law; McDonald is fighting it in court. Gun control is one of those hot-button social issues that stirs energies on competing sides. The ruling's impact will be felt across the country as local communities wrestle with whether banning the cheapest, most commonly available firearm will reduce violent crime or leave honest citizens vulnerable. Chicago passed its ban on handguns in 1982, one of the most restrictive in the U.S. It is that law that is being challenged in the Supreme Court. A study last year by economist Carl Moody of William & Mary College found that after the ban was imposed, city crime rates rose significantly, almost immediately. The city is more dangerous now than it was before the ban, the study concluded, relative to the 24 largest American cities. Officials here point to a 10 percent reduction in the murder rate in the past two years as proof that the handgun ban is beginning to work. Figures show that 81 percent of the murders in the city were gun-related; nearly 60 percent were gang-related. But another statistic has police and parents deeply disturbed. Chicago has surpassed Los Angeles with the highest youth homicide rate in the nation. In the 2008-09 school year, a record 36 city public school students were murdered, mostly by underage gang members, according to police data. It was the third straight year the numbers had risen. The larger constitutional issue is one that has polarized judges, politicians and the public for decades: Do the Second Amendment's 27 words bestow gun ownership as an individual right or as a collective one, aimed at the civic responsibilities of state militias and therefore subject, perhaps, to strict government regulation? The justices said that such an individual right applies in Washington two years ago, when they tossed out a then-restrictive handgun ban. But that city is a federal enclave, and now the court is poised to address a far larger question: Is that regulation limited to federal laws, or can it be applied to local communities like Chicago? "The Supreme Court has told us one of two important things, and that is that there is an individual right to bear arms. Now we are poised to find out whether that applies to state and local regulation," said Thomas Goldstein, a prominent Washington appellate attorney and co-founder of scotusblog.com. "That's really where the rubber hits the road, because there are all kinds of state rules about when you can have and carry a gun." Forty-four state constitutions protect their residents' right to keep weapons, according to a brief filed by 32 state attorneys general in support of the individual weapon owners in the current appeals. Some constitutional experts have noted that the Bill of Rights traditionally was applied only to the federal government, not to local entities. It was not until the past half-century that the Supreme Court has viewed free speech, assembly and the press -- among other rights -- as individual in nature, fundamental to liberty and superseding, in many cases, the power of states. There have been limits. The high court has repeatedly refused to extend to states the Fifth Amendment requirement that persons can be charged with serious crimes only by "indictment of a grand jury." And courts have affirmed the right of states to place restrictions on who may possess guns (such as certain convicted felons), types of weapons (machine guns, sawed-off shotguns) and where they may be carried (post offices, near schools). A CNN/Opinion Research Corp. poll of adult Americans in June 2008 -- the month the Washington ruling was issued -- found 67 percent of those surveyed thought the Second Amendment gave individuals the right to own guns. Thirty-three percent said it only provided citizens the right to form a militia. The poll had a sampling error of plus or minus 3 percentage points. |
| Posted by:gorb |
| #17 And Flash91, you may want to familiarize yourself with "infringement" as a legal concept. It allows for regulation, so long as it does not preclude ownership for self defense by a citizen. It is not carte blanche as you mistakenly suppose. Please if you do not understand the terms, do not misuse them. litigation-essentials.lexisnexis.com |
| Posted by: OldSpook 2010-03-02 23:58 |
| #16 Do you really think the writers of the Constitution believed People meant everyone from the 20th/21st Century perspective. You are reading something written in the 18th Century with an 18th Century perspective. "All men are created equal..." did not apply to slaves, native Americans or wo-man. The discrepancy was pointed out during the period, but no adjustment was made, till the 14th Amendment. What the 14th does is incorporate everyone else with the same rights and privileges that had been reserved to the political class basically white males, to include the 2nd Amendment. |
| Posted by: Procopius2k 2010-03-02 23:58 |
| #15 And FYI, your argument about slaves, etc is irrelevant in the face of Natural Law -- and similarly he 14th and other amendments. Notice your point about slaves even further narrows the right and expands the government's ability to infringe the right against whole classes of persons, making the right a group issue, not an individual one. Fundamental rights are meant to be maintained as broadly as possible. Your argument does quite the opposite - meaning in your viewpoint, RKBA is not a fundamental one, legally speaking, since it can be so readily parceled out and curtailed based on group membership instead of individual. All in all, that's pretty damning for your use of the milita as an enabler for right to keep and bear arms - you tie it to groups, and obliterate it a natural law artifect, and provide a framework by which the rihgt cna be regularly infringed against certain classes of individfuals that may not fit any narrowing of the "militia". In history, your argument has been used to limit the RKBA, not help it. So please, consider that with "help" like yours we need no enemies. |
| Posted by: OldSpook 2010-03-02 23:54 |
| #14 Beldar hit one of my pet peeves. Go to the US government's site. All those extra commas are NOT in there. There is only one comma, and the phrase "the right of the people" is not chopped up like it is in a quote here in comments. Beldar (Conehead?) has it right Proc. The militia is irrelevant to the argument over the right. The amendment is "the right of the people to keep and bear arms shall not be infringed." No Comma. No separation. "The right of the people" syntactically and legally has nothing to do with militias. No BS. Very simple. And to argue that it does is simply wrong. All the stuff about the militia is irrelevant when it comes to the rights, and to bring them up makes the case for those who would restrict the right based on that basis. I think despite your attempt to help, using the milita to make your case diminishes the right and helps those who would eliminate it. Its not the right of the militia, organized or unorganized. Its "the people" to whom that right is reserved, legally speaking, the same as "the people" in all the other amendments (as he attempts to show I think). Not a specific or limited class of them (the militia) like you argue. Your argument is the equivalent for saying that freedom of print belongs only to the press, not the people since only the press is mentioned in that clause, and the people are entitled only to assemble if we were to interpret the 1st the way you propose interpreting the second - only members of the press have full freedom of speech. The People. Its legally quite distinct and clear. And that's not from emotion, its from clarity about the law and the 2nd Amendment. The real underpinning is: Self defense is a fundamental right under natural law, and from that descend the right of individuals as a whole ("the people") to arm themselves. Not being a member of "the militia", nor anything else in the Constitution grants that right -- its God-given. The right exists as a result of natural law, not a fiat grant from some incidental regulatory verbiage about militias. You may want to reconsider your argument Proc, its badly flawed, misleading and flat out wrong in its assumed basis (that the militia has anything to do at all with who holds the right that should not be infringed). Think it over, you'll see he was right (or alternatively that his argument is the more fundamentally correct one), and you are wrong although perhaps right in your intent. |
| Posted by: OldSpook 2010-03-02 23:43 |
| #13 The founders were the ones who wrote it. To them women and slaves were not The People with the same political rights as the "free white males". For them the People and the Militia were one and the same. There's no way around it other than wanna, coulda, shoulda. What has evolved is the incorporation of 'others' into the body The People as an expanded whole. |
| Posted by: Procopius2k 2010-03-02 21:36 |
| #12 Procopius, if the Amendment meant to talk about the rights of militia men it could have said so. BUT it says the right of the PEOPLE shall not be infringed. |
| Posted by: European Conservative 2010-03-02 21:24 |
| #11 Procopius, arguments about the militia are bullshit, from either side. The militia is irrelevant when dealing with a fundamental right that springs from natural law: the right and duty of self defense. Arguing from emotion? In the context of the time of the writing of the Constitution, the status of women and slaves was something outside the definition of the political body. They had no universal 'rights'. The political body was as the militia is itself defined as every able body male. The original enrollment reads from the second portion of the Militia Act of 1792, providing federal standards for the organization of the Militia. was passed on May 8, 1792, and signed into law on February 28, 1795. The second portion clarified who the militia consists of and what duties, and penalties were placed upon the militia forces. "That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.." Now the life expectancy at the time meant that 45 was pretty much the upper limit of a functional male given that both disease and infirmities that hammered the body. This means the politically incorporated population as a whole had for all practical considerations the right to access and to bear arms. What has changed is that the political body has been expanded to women and, with the end to slavery and the implementation of the 14th Amendment, anyone regardless of color, race or creed. The universe became bigger. |
| Posted by: Procopius2k 2010-03-02 19:31 |
| #10 I may have an unprejudiced interpretation: "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." First comes the right to keep and bear arms. The reason for that universal right is to be able to have a well regulated Militia. A cause-effect thing. If people do not have that universal right applying to everyone, a well-regulated Militia is not possible. Otherwise it would have been pretty easy to say "the right of militia members to bear arms..." It doesn't say that only the Militia should have that right. This simply distorts ANY intention of that amendment. My German two cents. |
| Posted by: European Conservative 2010-03-02 17:31 |
| #9 First off, The People means the same thing it does in the other amendments. That means individuals, regardless of State they live in. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... he right of the people peaceably to assemble ... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. etc Procopius, arguments about the militia are bullshit, from either side. The militia is irrelevant when dealing with a fundamental right that springs from natural law: the right and duty of self defense. The mention of the militia is a supporting clause to show one of many reasons why they put this in. It is not there as part of the operation of the law. Look at the punctuation specifically the placement of the comma, whihc is accurate for once. There is only ONE comma, and its between the supporting clause and the main sentence. It clearly demarcates the operational portion of the amendment. "the right of the people to keep and bear arms shall not be infringed." That is the law. Militias be damned. This is for The People. |
| Posted by: Beldar Threreling9726 2010-03-02 17:19 |
| #8 Common sense says there should be restrictions. The problem with the 2nd amendment, is there is no room for common sense - "shall not be infringed" is pretty much absolute. Maybe where such freedoms impact other peoples rights? That would imply open carry might be a problem, but I so no arguement against concealed carry. Just a gunowner's opinion. |
| Posted by: flash91 2010-03-02 14:12 |
| #7 being necessary to the security of a state of freedom An alternative way of reading it that I kind of like. |
| Posted by: Glenmore 2010-03-02 12:58 |
| #6 limits of gun control Don't use more than two hands? |
| Posted by: g(r)omgoru 2010-03-02 12:38 |
| #5 ..it does so by Title 10 United States Code, the cited paragraph, the implementing legislation. |
| Posted by: Procopius2k 2010-03-02 11:51 |
| #4 Read it again John. Congress by its powers per Article I Section 8 - "..To provide for organizing, arming, and disciplining the Militia, and for governing such..." defines the militia. |
| Posted by: Procopius2k 2010-03-02 11:47 |
| #3 No where that I'm aware of is "militia" defined in the Constitution. What is the source of the definition you cited? It sounds like militia is restricted to those 17-45 years in age. Is this only the organized militia? Does that apply also to the "unorganized militia?" It would seem that if the 2nd amendment is an individual right as a part of the Bill of Rights, that it applies to everyone without age restriction. |
| Posted by: JohnQC 2010-03-02 11:40 |
| #2 Perhaps Otis and Diane should first address the trash talking that leads to the gun play. |
| Posted by: ed 2010-03-02 09:38 |
| #1 Article I, Section 8 - United States Constituion Section 8 - Powers of Congress The Congress shall have Power...To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; Amendment 2 - Right to Bear Arms. Ratified 12/15/1791. 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. Title 10 United States Code - Subtitle A, Part 1, Section 13, paragraph 311 311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. Now explain to me how 'educated' men and women of the legal caste are unable to comprehend these three 'dots' let alone connect them? The simple answer is that they don't want to. It's all about POWER. |
| Posted by: Procopius2k 2010-03-02 08:22 |