The Court Disregarded Nearly 70 Years of Legal Precedent
In District of Columbia v. Heller, No. 07-290 (June 26, 2008), the United States Supreme Court considered the meaning and scope of the Second Amendment for the first time since 1939. In a 5-4 decision authored by Justice Scalia (and joined by Chief Justice Roberts and Justices Alito, Kennedy and Thomas) the Court held that the District of Columbia’s ban on handgun possession, as well as the District’s requirement that firearms in the home be stored “unloaded and disassembled or bound by a trigger lock or similar device,” violate the Second Amendment. The Court interpreted the Second Amendment to confer an individual right to possess firearms unrelated to service in a well-regulated state militia. The Court made clear that this right has limits, but, as explained below, the contours of those limits remain unclear.
The majority opinion dismissed the Court’s principal precedent concerning the interpretation of the Second Amendment, United States v. Miller, 307 U.S. 174 (1939), as not “a thorough examination” of the Amendment. Heller, slip op. at 50. The Court limited Miller to the proposition that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at 53.
In United States v. Miller, the Court, in a unanimous decision, rejected a Second Amendment challenge to a federal law prohibiting the interstate transportation of sawed-off shotguns. The Court held that the “obvious purpose” of the Second Amendment is to “assure the continuation and render possible the effectiveness” of the state militia, and the amendment “must be interpreted and applied with that end in view.”
Following Miller, over 200 federal and state appellate courts rejected Second Amendment challenges to a variety of gun laws, such as those banning certain classes of firearms (including handguns), requiring the registration of guns and licensing of gun owners, and prohibiting firearm possession by convicted felons. The Supreme Court had repeated opportunities to review these decisions prior to D.C. v. Heller and consistently declined to do so.
Our federal, state and local governments have relied on this well-established precedent in passing hundreds of gun regulations over the years. These regulations are, in turn, relied on by law enforcement agencies across the country in their efforts to protect public safety. The Supreme Court’s ruling that the Second Amendment enshrines a private “right to bear arms” unrelated to militia service, calls into question this well-settled body of statutory, regulatory and case law. As Justice Stevens pointed out in his dissenting opinion, “even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of …[past Courts], and for the rule of law itself…would prevent most jurists from endorsing such a dramatic upheaval in the law.” Heller, slip op. at 4 (Stevens, J., dissenting).
This upheaval is made worse by the fact that the Court failed to establish a standard of review for evaluating firearms laws. The majority opinion stated that the handgun ban would fail any standard of scrutiny that the Court has previously applied in evaluating the constitutionality of legislation, but did not articulate a standard that should be applied in evaluating other laws under the Second Amendment. Id. at 56-57. In a footnote, however, the opinion strongly suggested that application of the rational basis test would be nonsensical. Id. at 56 n.27. The majority also rejected an “interest-balancing” analysis suggested in Justice Breyer’s dissent – stating that, whatever the Second Amendment leaves for future evaluation, “it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.” Id. at 63.
The many questions left unanswered by the Court prompted Justice Breyer to conclude, in his dissent, that “[t]he decision will encourage legal challenges to gun regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. . . And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time.” Heller, slip op. at 40 (Breyer, J., dissenting).
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Because a well armed, equipped and practiced armed populace is the best guarantee of freedom at the individual, village, town, city, state and federal level, the right of all the people to buy, own and carry firearms and other weapons shall not be monitored, rationed, regulated or taxed.
The Second Amendment in modern English.
All else is manipulation and lies, the incremental destruction of human rights.
“[t]he decision will encourage legal challenges to gun regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. . . And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time.”
The court has no authority to legislate a "clear standard" - this is a job for legislators, from federal to local levels. Cities already have "effective protection against gun violence and accidents" in that violent acts and criminal negligence are already illegal. Even without *any* gun control laws, these activities are already criminalized.
Per federal code, (and for purposes of gun rights) the terms "militia" and "citizen" are nearly synonymous. USC Title 10 § 311 defines the militia: "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."
While Title 10 makes a distinction between male and female, between age groups, and based on handicap status, equal rights provisions would extend civil protections to all citizens.
Given this, the question of whether the second amendment protects individual rights or militia rights is irrelevant as these two entities are, for civil rights purposes, one and the same.
Two points:
1) as others have pointed out, Miller's value as precedent should be extremely limited, if not discarded completely. Miller prevailed in the lower courts, and the SCOTUS heard the case on the government 's appeal. When Miller died, the case should have been dismissed as moot. Even ignoring that, the fact that Miller's attorney didn't appear for the oral arguments means that the entire proceeding was prejudiced in the government's favor.
2) More importantly, and more disturbingly, this is a legal professional group advocating that precedent should override the plain meaning of the Constitution. They are essentially proposing that precedent should never be overturned, even when it is clearly wrong , simply to avoid "a dramatic upheaval in the law ." It is a well accepted judicial standard that precedent is overridden by statute, and that the Constitution overrides both precedent and statute. They propose to overturn hundreds of years of judicial standards to preserve 70 years of precedent? There seems to be some hypocrisy in that stance.
Wrong is wrong, and if we do not respect the clear meaning of the Constitution above precedent then the Constitution becomes meaningless and protects nothing.
The dissenting jurists based their opinions on a vast ignorance of, or worse yet, ignoring of the Constitution and the Bill of Rights. I was educated in the public and private school system in the 1950s and 1960s. I was taught the Second Amendment was meant to overthrow tyrants, if it ever came to that. The petulant whining of Nancy Pelosi et al, only serves to display their true agenda. To rule. It's not about guns, it's about control. I have never seen a bigger bunch of freedom-hating clowns in one place than we have in Washington today. They are a bigger threat to freedom than al qaeda and the taliban combined. Why are murders with guns always highest in places with the strictest gun control? The brady bunch always has to lie to get their message out. They know the light of truth ALWAYS cancels out their lies. Here is what some of the men who wrote our Founding Documents had to say about guns.
James Madison wrote, "Americans have the right and advantage of being armed; unlike the citizens of other countries whose governments are afraid to trust the people with arms." (The Federalist, No. 46 at 243- 244)
Thomas Jefferson wrote, "No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal to Virginia Constitution, 1 T. Jefferson Papers, 334, [C.J. Boyd, Ed., 1950] )
George Washington wrote, "A free people ought ... to be armed ...." (George Washington, speech of Jan. 7, 1790, in the Boston Independent Chronicle, Jan. 14, 1790)
Samuel Adams wrote, "The Constitution shall never be construed ... to prevent the people of the United States who are peaceable citizens from keeping their own arms." (Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)
Finally, Thomas Paine wrote, "Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property ... Horrid mischief would ensue were the law-abiding deprived of the use of them." (Thomas Paine, Thoughts On Defensive War, 1775)
These dissenting jurors obviously have an anti-freedom agenda and the only thing that stands between the wannabe tyrants and their goal is "WE THE PEOPLE", you know, the ones mentioned throughout those sacred documents. In 1967, I took an oath to 'protect and defend the Constitution from all enemies, foreign and DOMESTIC' and I intend to honor that sacred oath.
The Court limited Miller to the proposition that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
Miller doesn't mention "law-abiding citizens for lawful purposes." It says weapons "not typically possesed or use by militia". In other words, if there was testimony that sawed off shotguns were used by the military, (which they are)then they would be covered by the Second Ammendment.
The reason that there was no testimony in this regard is that there was no testimony from the defence at all. Only the government attended the trial. No one from the other side was there!
1. The fact that the Miller Decision was based a one sided argument is rarely mentioned.
2. The fact (as you pointed out) that “weapons not typically possessed or used by militia” is often omitted in their argument.
3. The term "sensible" gun control laws is vague at best. My definition of sensible “gun-control laws) as compared to Senator Schumer's definition are probably quite stark.
4. Justice Berger speaks of fraud. I wonder what the good judge thoughts are that the right to have/own/possess firearms was a "pre-existing" right?
5. The Gun Control advocates, are complaining that 70 years of president have been set aside (of course its already been mentioned that Miller really wasn't all it's been made up to be). Well, what about the previous 160?
6. I find it very baffling to place blame on a mechanical device that “must” have human interface/manipulation to operate.
7. What I find very troubling is the media’s part in the gun control debate. Every time some one goes on a shooting spree (and they are sad) the vast majority of them (stations, reporters, film crews etc…) are right there filming all the action, leading news story and so on… On the other hand, when a firearm is lawfully used to defend oneself, rarely is it reported (unless it sells newspapers or raises ratings) do you hear about it. It’s definitely one sided, IMO.