District of Columbia v. Heller

[Rising Star]

At 10 AM on March 18 the US Supreme Court will hear oral arguments on this case. For those unfamiliar with it, the nutshell version is whether or not DC's handgun ban violates the 2nd Amendment. Of course, the bigger issue is how the Court will inerpret the rights conveyed by said Amendment. About 50 or 60 amicus briefs have been filed. I will be able to access the transcripts of the oral arguments later that day and will either post a link or get them on here for rumination and discussion.

John

[Norm Abrahamson]

John:

I checked out the briefs of the Petitioner (Washington, D.C.) and Respondent (Heller), and they're pretty interesting. I don't recall reading appellate briefs that had so much space devoted to giving a historical perspective to the underlying question. For those of you interested in personal right to firearms, my take on the impact of the case is this; if the circuit court decision is upheld, then states will not have the authority to limit a person's right to keep firearms in their homes. This could have a huge impact on scores of state and federal firearm statutes.

The Second 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."

I will be curious to see how the Justices question the attorneys. If the Justices seem to believe the first two clauses of the amendment are merely a "preamble" to a personal right, then the circuit court decision will likely be upheld. IF the Justices believe that none of the amendment is a preamble to a personal right, but that the right to bear arms is predicated on membership in a state militia, then the circuit court will be reversed, at least in part.

Stay tuned folks.

Sincerely,

Norm Abrahamson

[f.Channell]

See now I'm not a lawyer, but to me that means if your in a militia (now National Guard) you should have a gun. But not in a militia you shouldn't.

I'm not anti gun. But that's how that reads to me.

F.

[Gene DeMambro]

What I want to know is why the 2nd Amendment has a Preamble, as it were, but the others in the original Bill of Rights do not.

Cheers,
Gene

[Rising Star]

"The People" - if you look at the interpretation of all of the other articles in the Bill of Rights, the term "the People" has been determined to construe an individual right. Why would the founding fathers have intended a different meaning for the same term in the 2nd amendment?

Fred - you need to look at the historical context for militia. We have a different understanding now than they did when this wonderful document was created.

John

[Gene DeMambro]

But, again, John, I am troubled by the fact the 2nd Amendment has a statement defining its purpose, while the others do not.

Cheers,
Gene

[Norm Abrahamson]

Gene:

That’s a good question, but there are in fact other instances where clauses in the Constitution are defined as preambles. In Article I, Section 8, Clause 8, one of the powers of congress is stated as: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The power granted to congress is to grant patents and copywrites. The words, “[T]o promote the Progress of Science and useful Arts” is seen as a preamble. There are other ways to promote the sciences and useful arts aside from copywrites and patents, yet those are the specific rights granted. There are also other benefits to copywrites and patents, such as securing personal property rights to the inventor or writer.

If you look at the 4th amendment, it states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The first part of the amendment states a general principle or arguabley, a preamble. It is the second part of the amendment which actually supports that objective: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” You could argue that everything before “no warrants” is unnecessary preamble.

Fred,

If you are between the ages of 17 and 45, you are in fact part of the “unorganized” Massachusetts militia, and subject to call up to aid in putting down insurrection or riot. (See M.G.L. c 33 secs. 2 and 3) Upon your call up, you are deemed part of the organized militia.

By the way, I am far from an expert in this area, and have no idea how the Court will rule, but I do enjoy the arguments being made on both sides. This is certainly an opportunity for the Roberts Court to shake things up.

Sincerely,
Norm Abrahamson

[Norm Abrahamson]

I read the transcript of the oral argument in the Heller case and it was quite interesting. Eight of the nine Justices asked questions of the attorneys. As usual, Justice Thomas was as noisy as a doorstop. While it is probably foolish to read too much into the ultimate vote of a Justice based on his or her questions to counsel, I’m going to do it anyway. Take this with an enormous grain of salt. It appears to me that Justices Roberts, Scalia, Kennedy and Alito would vote that the second amendment guarantees a personal right to keep and bear arms that is unrelated to a well organized militia. Justices Breyer and Stevens are likely to vote the other way, and find the Washington, D.C. statute to be reasonable and constitutional. Justices Souter and Ginsberg could go either way. Justice Thomas, although silent, is a consistent conservative vote, so I think he would vote with the first group and find an personal right to keep and bear arms to be conferred by the second amendment. In short, I think the gun owners on the list will like the decision.

As always, all predictions are for discussion purposes only and should not be used for gambling purposes.

Any of you interested in reading the transcript or briefs may find them at the home page of the U.S. Supreme Court, found on line at: http://www.supremecourtus.gov/index.html.

Sincerely,
Norm Abrahamson

[f.Channell]

Actually I've read a lot about period Militia Training.
Frankly I think most people don't know what it was about. I've read many local period history pieces on it.

It was a day when a keg or two was opened, they bet money on who was the best shot, competed and got drunk. Their wives brought some food and sobered them up. This ocurred on the town green usually.

I think John if we all got together and opened a keg of rum or ale at summer camp and started shooting, we might be in for a bit of trouble.


F.

[Rising Star]

Norm, et al

This might be a quicker link:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

110 pages - Norm- you must have too much free time on your hands to have already read it! LOL

I will digest it tonight.

John

[Rising Star]

I have heard that the Court's opinion in this case may be released today! Will keep my eye out from my hospital bed.

John

[Gene DeMambro]

Nothing on their website as of yet. Big news about the Gitmo case, though.

Cheers,
Gene

[Norm Abrahamson]

The U.S. Supreme Court has spoken. The second amendment protects an individual's right to bear arms, regardless of membership in a militia. I will now take my bow for my prediction in March. The opinions (majority and dissent) are about 157 pages long, so I haven't had a chance to read them yet. To those of you who do own and carry firearms; How do you think the Heller decision affects your local gun laws?

Sincerely,

Norm Abrahamson

[Rising Star]

Norm,

For those of us in Massachusetts, it should be interesting - looking forward to reading all the Court's opinions and then dissecting/discussing them here.

John

[Rising Star]

The opinion is now on line and I will only have the chance to read the syllabus and first few paragraphs before heading to the Dojo but the Court has stepped up to the plate, although only 5-4, and affirmed what myself and many others have always said - How can the phrase "the people" mean one thing in one amendment and something completely aposite in another?

The intent of the founding fathers was and is clear and unabiguous.

Here Here!

More to come!

John