The 2nd Amendment Right is Not Unlimited
Although the Heller decision establishes a new individual right to “keep and bear arms,” the opinion makes clear that the right is not unlimited, and should not be understood as “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, slip op. at 54. The Court provides examples of gun laws that it deems “presumptively lawful” under the Second Amendment, including those which:
* Prohibit the possession of firearms by felons and the mentally ill.
* Forbid firearm possession in sensitive places such as schools and government buildings.
* Impose conditions on the commercial sale of firearms.
The Court makes clear that this list is not exhaustive. Id. at 55. The Court also concludes that the Second Amendment is consistent with laws banning “dangerous and unusual weapons” not “in common use at the time,” such as M-16 rifles and other firearms that are most useful in military service. Id. Finally, the Court declares that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.” Id. at 60.
In addition, the Court left open the question of whether the Second Amendment applies to state and local governments other than the District of Columbia, through the legal doctrine of incorporation. Because the District is a federal enclave, the Court had no occasion to decide the issue in this case. The Court noted that its pre-Miller precedents found that the Second Amendment does not apply against the states, but raised a question concerning the continued vitality of those holdings. Heller, slip op. at 48 n.23.
Post-D.C. v. Heller challenges to state and local firearms laws will necessarily address this issue. Therefore, it is important to note that state and local laws are not subject to challenge under the Second Amendment. In general, the first ten amendments, or the Bill of Rights, only constrain acts of Congress, not state or local governments. However, under the doctrine of "incorporation," the Supreme Court has held that certain amendments contained in the Bill of Rights are "incorporated" by the Fourteenth Amendment as a constraint on state and local action. The Supreme Court has held that the Second Amendment is not incorporated, and therefore is not a constraint on state or local regulation. See Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542, 553 (1876). Numerous lower courts have reached the same conclusion. See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982); Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995) (“The Second Amendment does not apply to the states.”); Bach v. Pataki, 408 F.3d 75, 84 (2d Cir. 2005) (“join[ing] five of our sister circuits” in holding that “the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts”).
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The author writes:
Although the Heller decision establishes a new individual right to “keep and bear arms,”...
The writer transparently attempts to advance the position that the Bill of Rights "established" - rather than recognized - rights that preexisted the Constitution, while arguing that SCOTUS "established" a "right," via case law . Neither is the case. There is ample evidence, based upon the writings of the Founding Fathers, that the Bill of Rights simply enumerated preexisting rights. Several quotations from Thomas Jefferson pretty much sum up the intent:
"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." Thomas Jefferson, letter to William Johnson, June 12, 1823
"No free man shall ever be debarred the use of arms. 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 ."
"..the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. When all government... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." (1821)
"...judges should be withdrawn from the bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or fortune; but it saves the Republic..."
"It has long, however, been my opinion, and I have never shrunk from its expression... that the germ of dissolution of our federal government is in the constitution of the federal Judiciary;... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."
The state legislatures - especially in states whose own constitutions recognize the right to bear arms - cannot " ban guns " - any more than they can choose to invoke cruel and unusual punishment, deny the right to counsel, or house military personnel in citizen's homes.
It's interesting how people do what Jefferson warned against, and pervert language within the Bill of Rights - especially the Second Amendment. The same people would likely throw a fit if their state legislature decided that citizens could be drawn and quartered as punishment for a crime against the state.
In sum, the Bill of Rights simply enumerates preexisting rights. Any other position is puerile.
It was the constitutionally questionable National Firearms Act of 1934 that made full auto capable weapons uncommon among firearms sold to the civilian market. So are we to assume that if the state is successful in banning a given type of weapon, thereby making it's use uncommon, it can them be said that the 2nd Amendment doesn't apply to those weapons? That is assinine.
As to Presser v Illinois, the dicta plainly says that a state cannot create outright bans of arms as that would deprive the federal government of it's armed civilian militia. As usual though, people in power hear what they want to hear and disregard the rest.
In the same way, trying to say that the Heller v DC dicta saying that the right to arms is not unlimited, is not the same as saying that the states are free to regulate this right any willy-nilly way they wish.
It is unlikely that SCOTUS won't incorporate the 2nd against the states. the 14th amendment was adopted in direct response to the violations of basic rights by the southern states of the freedmen and speaks most plainly to the right to arms. At the very least due process will be hte vehicle used by the court, though there is a good chance that the Slaughterhouse ruling will be overturned outright, as the overwhelming perception of the legal community over the last 50 years is that Slaughterhouse was wrongly decided.
The Heller v DC decision makes it plain that the right to arms is a "hallmark" of anglo-saxon law and as such is a basic right the government cannot infringe on. As the right to arms is a basic right, it is nonsensical to suggest that a state must regognise basic rights and freedoms such as free speech , religion , assembly, petition of greviences, freedom of unwarrented search and seizure, right to jury trial etc, yet is free to trample at will the right to arms.
Heller also plainly says that in respect to gun control as a method of controlling crime , the state must look to other means.
So don't be smug. It is plain from reading the full test of the Heller v DC decision that outright bans of any weapon type in common use is off the table. This includes handguns, particularly semiautomatic and the dreaded "assault rifles" that are commonly sold, possessed and used which are semiautomatic as well. Heller also makes plain that "may issue" ccw laws will not stand scrutinty. So kiss the California and New York, Mass. RI and a few other stataes "need based" licensing systems good bye.
It is also plain from reading the full text, that the rights of the people are just that, rights of the people protected agaisnt government infringement and those who would use the power of the government to force their personal agenda's on the people.
Until then...
You state:
"The Court also concludes that the Second Amendment is consistent with laws banning “dangerous and unusual weapons” not “in common use at the time,” such as M-16 rifles and other firearms that are most useful in military service."
Your attempt to spin the opinion has failed here. It is common knowledge that the 2nd Amendment was specifically designed to include militaristic rifles, for the express purpose of ensuring the ability of the citizenry of throwing the shackles of oppressive Government. This was the case when the federal government ratified the amendment and also when each state wrote their own constitutions, insofar as similar rights were included.
In claiming that the 2nd Amendment pertains to hunting, the shooting sports , and collecting, the anti-gun lobby misframes the entire concept of the amendment and thought-process of the framers when it was ratified.
The plural of 'anecdote' is not 'data'.
Please, Please show me where in the 2nd amendment to the United States Constitution it has any limitations on the bearing of arms....
Personally I feel that everybody should enjoy the freedom to protect themselves, be they felons or even mentally ill people, and the way I feel about it is backed up by the Constitution, as it says we have the freedom to pursue "life, liberty and the pursuit of happiness"
Prohibiting people from owning guns just takes the RKBA from law abiding citizens it does nothing to keep guns out of the hands of those who will use them for evil purposes.
If it is felt that a person is too dangerous to own a firearm then that person should not be free in our society he should either be commitment for a mental illness that keeps him from functioning as a member of society or he should be in prison as he is too violent to be among the citizens that are allowed all their freedoms as enumerated in the constitution.