RRC Archives

Currently, the Supreme Court is hearing a case challenging D.C.'s laws that place strong limits on the possession of guns within the District, and essentially ban the possession of handguns there.

Basically, the Supreme Court is revisiting the question of whether the Second Amendment actually restricts all levels of government from limiting individuals from having firearms of various sorts. So here's the text of the Amendment:

The Founders wrote: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.

A lot of people today read this as meaning that the government can't restrict you (any given individual) from having in your home and often carrying around a wide variety of firearms, from handguns on up to some "reasonable" limit. After all, "the right of the people to keep and bear Arms, shall not be infringed." Right?

But there are problems - what's with that whole "militia" thing? What did this mean at the time of the writing of the Constitution and the Bill of Rights? First, the US Bill of Rights didn't come out of a vacuum. They were looking at the English Bill of Rights from a hundred years earlier, in 1689. That document had the following:

The English Parliament wrote:That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

So, first they used the words "have arms" (as opposed to "bear arms"), they specified "for their defence" and the Parliament allowed themselves to limit things with their phrase "as allowed by law". It sounds like the English Bill of Rights laid out something closer to how a lot of Americans think of the 2nd Amendment. So why didn't the founders just use that sort of wording, if that's what they meant?

So what about that "militia" phrase - did that mean anything to the Founders? It looks like that was pretty important. Take a look at the first draft of the amendment:

James Madison wrote:The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

There's a clue about what the phrase "keep and bear arms" meant to the Founders. People (like Quakers) who oppose participation in the military should not be forced to do so. (aka "bear arms")

At the time of the US Bill of Rights, there was no Federal standing army, instead, each state had its own "well regulated militia." If there was a foreign threat, the Federal government in Washington would raise an army out of the state militia. But based on English history, the Founders were wary of a national standing army. (In fact, part of the English Bill of Rights took away the power to raise a standing army from the King and gave it to the Parliament. Standing armies were scary things - less like the US Army and more like how China's army is used to suppress dissent internally.)

Historians argue that when Madison wrote "bear arms" everyone at that time interpreted this to mean "participate in a state militia" not "run around with a gun during your normal life." In other words, the Second Amendment was intended to limit the right of Washington to prohibit the states from having their own "well regulated Militia."

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Personally, I think that the Second Amendment as it is worded is a mess and almost impossible to interpret in a useful way. It's the biggest failure of writing in the Constitution. We read into it what we want. While I think that there are far too many guns and way too many morons running around with guns, I also think that broad prohibitions are never effective. (see: Alcohol Prohibition and Drug Prohibition.) I think that the solution is not stricter laws, but rather our society moving to where it's discouraged for most people to have non-hunting guns in their houses. (That said, there clearly needs to be more work done to bust fake dealers and straw purchasing rings that feed guns illegally into big cities.)

After all, any given gun (esp. hand guns) are way, way more likely to be used in a crime, domestic shooting or suicide than it is to be used in some "self defense" scenario. And I'm saying this as someone who lives in a so-so neighborhood in a big city with gang graffiti all around my home and who was burgled a couple of years ago. My experience is that most people are better off without a gun around.

Even if you argue that the right to bear arms is for protection against the govt, it would do no good in this modern day anyway.

They should either change it to say, each person has a right to bear a fighter jet, or just get rid of the amendment altogether.

Why not,

http://www.pcworld.com/article/id,13418 ... ticle.html


Imagine the 4th with real explosives. It would be awesome once.

In every other case where the phrase "the right of the people" is used (freedom of religion, freedom from illegal search and seizure, freedom of the press, freedom of speech, etc.), the phrase has been held to mean these are individual rights.

There is a great deal of historical evidence to indicate that the framers of the constitution saw the second amendment as an individual right as well. That's why they once again used the phrase "the right of the people". I think that the SCOTUS will uphold the lower court ruling on this issue, and the DC handgun ban will be declared unconstitutional.

Larry - I think that the SCOTUS will make exactly that mistake. The bigger problem is that the way things are headed, the current court will not just overturn DCs law, they will create the previously not recognized individual right.

Why did they use those words? The sausage making of negotiating laws. It was a mess, and here we are dealing with it. I think that there are two historical realities that we need to take into account in looking at the Amendment. I mentioned the very real issue of militias vs. a standing national army above. The other issue is the radical difference between what it meant to allow the population to keep/bear very expensive, muzzle loading, flint-lock guns versus the powerful, rapid-fire, highly reliable, highly accurate, multi-shot firearms of today. If the SCOTUS said that everyone has the individual right to walk around in public with a 6' long, 18th century muzzle loader, I'd be more-or-less OK with it.

So, aside from the question of what the Second Amendment actually, originally meant, there's the question of what limits, if any, are acceptable on who can "keep and bear arms" and what "arms" may be kept and borne. Mentally ill people are part of "the people", as are convicted felons. If it is not acceptable to ban hand guns because they are easily concealed and are highly effective for close quarters killing of people, then is it also not acceptable to ban machine guns because they are highly effective for killing lots of people? Nuclear weapons are a type of "arms", and thus, the right of any person in the US to drive around with one "shall not be infringed"?

Are age limitations on gun ownership allowed under the probable new reading of the Second Amendment? Are "common sense" laws like requirements for trigger locks allowed? What about limitations on "cop killer" equipment?

All these questions will be opened up, making work for countless lawyers. The consequence of the decision that everyone is expecting is that these questions will only be able to be answered by the "unelected, unaccountable" judges, rather than by the elected legislatures at the state, county and city levels. (Yes, irony intended...)

Imagine the next university shooting: You're a cop and you show up to a classroom building where there are one or more shooters. It sounds like there's some serious firepower being used inside. The shooting is ongoing and heavy. Because the limits on concealed carry have been removed, as have the University's power to ban guns on campus, you can assume that there are armed students in there in addition to the gunman/men. Do you rush in and shoot everyone with a gun? Or do you wait for the gunfight inside to die down, knowing that more people will die as a result?

tomdarch wrote:......the current court will not just overturn DCs law, they will create the previously not recognized individual right.

Correct! well, nearly correct. I'd alter what you said slightly to read "the current court will not just overturn DC's law, they will finally recognize the individual right."

[quote="tomdarch" If the SCOTUS said that everyone has the individual right to walk around in public with a 6' long, 18th century muzzle loader, I'd be more-or-less OK with it.[/quote]

So I take it you be more-or-less OK with freedom of speech as well, as long as that speech wasn't spread by any unanticipated technologies like TV, Radio, CDs, or the Internet?

tomdarch wrote:
So, aside from the question of what the Second Amendment actually, originally meant, there's the question of what limits, if any, are acceptable

You're sure enough right, there. So, as soon as we get this question of whether the right to bear arms exists, out of the way, we can move on to ask the question "what are reasonable limits?" After all we have the right to free speech, but not the right to shout Fire! in a crowded theater. I think we'd all agree that a ban on private ownership of nuclear weapons is quite reasonable, but what about a handgun kept for personal protection in the home? Currently that's illegal in DC.

tomdarch wrote:
Imagine the next university shooting: You're a cop and you show up to a classroom building where there are one or more shooters. It sounds like there's some serious firepower being used inside. The shooting is ongoing and heavy. Because the limits on concealed carry have been removed, as have the University's power to ban guns on campus, you can assume that there are armed students in there in addition to the gunman/men. Do you rush in and shoot everyone with a gun? Or do you wait for the gunfight inside to die down, knowing that more people will die as a result?

Well, we all know what happens now, murder and mayhem on a massive scale. I'd suggest the scenario you envision is actually the least likely way that something like that would play out. If only two our three students in a large lecture hall were carrying weapons when something like this started, the whole thing would probably be over in seconds, with no protracted shootout. By the time the cops arrive, the assailant would be wounded, dead, or in flight, and the good samaritans would be busy tending to the wounded.

My biggest concern with legal concealed carry on campus would be the over all cost/benefit ratio. That is what if mass murder was virtually eliminated, but there were more armed encounters among the student body as a whole, with the overall murder rate going up, but by ones and twos, not in mass slaughter?

My biggest concern with legal concealed carry on campus would be the over all cost/benefit ratio. That is what if mass murder was virtually eliminated, but there were more armed encounters among the student body as a whole, with the overall murder rate going up, but by ones and twos, not in mass slaughter?

That's exactly what is happening in areas with a high concentration of concealed/carried handguns like East LA, spanish Harlem and the ghetto's of Chicago. You won't likely hear about some idiot going on some insane shooting spree at a mall or restuarant in one of these areas. Even the insane are smart enough to know they'd meet a quick death if the pulled a gun in close proximity to a bunch of bangers. But all those guns surely aren't keeping the murder rate down in those areas.