Comments on: High Noon For The 2nd Amendment?

Andrew Cohen: Expect A Showdown During U.S. Supreme Court's Landmark Gun Case

[brianbwb-2009]

Another thought, the definition of the word "arms" has also not been set, thus it is technically legal for a civilian to own a nuclear weapon, or a biological toxin, such as ricin, unless we have all agreed to accept limitations on the type of arms owned.

The word "arms", short for "armaments" is

"A weapon, or a tool employed to gain a tactical advantage over an adversary, usually by injury, defeat, or destruction.[1][2] Weapons may be used to attack and defend, and consequently also to threaten or protect. Metaphorically, anything used to damage (even psychologically) can be referred to as a weapon. A weapon can be as simple as a club or as complex as an intercontinental ballistic missile."

So since we already accept limitations on the right to bear arms, because we accept limitations on the type of arms that are legal for civilians to own, the question of regulation is already moot, the issue is now what types of arms are allowed, and where.

[gunownerdan]

"Today we need a nation of minute men; citizens who are not only prepared to take up arms, but citizens who regard the preservation of freedom as a basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.
The cause of liberty, the cause of American, cannot succeed with any lesser effort."
- President John F. Kennedy, January 29, 1961

A-HUMAN-RIGHT.com

[brianbwb-2009]

The Second Amendment, as passed by the House and Senate, reads:

%u201C 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.%u201D

The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:

%u201CA 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.%u201D

It is clear that the phrase; "shall not be infringed%u201D is moot, as the meaning is self evident.

More important however, is the phrase no one seems to remember; %u201CA well regulated Militia", whose wording clearly gives the government the power to regulate militias, which is described as the civilian population apart from those serving in the military.

Thus it is clearly constitutional to regulate gun ownership, and there is no specified limit to the scope of regulation, but it is not constitutional to ban it.

[commentator8]

I firmly believe that the indisputably learned members of the court can be relied upon to make a reasonable - though not necessarily earthshaking - decision on this matter. It is unlikely that they will try "to settle this once and for all" but rather make an interim decision much like the court has made on this and many similarly unclear issues many times in the past. "High noon"? I think not. Neither extreme will have their fondly held but thoroughly unrealistic dreams come true.

[ranger1948]

I think the government knows the only way they are going to disarm this country is when they pry the weapons out of our dead hands.

[cfin5]

Unhappily, the Bush brief makes it more likely than not that the Second Amendment will be gutted (unconstitutionally) by the Supreme Court. No wonder Rep. Virgil Goode (R-VA) is seeking to get his colleagues to co-sign his letter urging Bush to pull the brief.-------by Larry Pratt, Gun Owners of America

[cfin5]

The Bush brief submitted by the Solicitor General was co-authored by Stephen Rubenstein, the head lawyer for the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Not surprisingly, the brief expresses alarm that federal gun bans, licensing requirements, registration laws, import restrictions and other unconstitutional federal laws and regulations might topple if a literal interpretation of the Amendment becomes the required level of scrutiny.

In the Clement-Bush brief, the phrase "shall not be infringed" is never used -- the game would be over if they did. It is hard to say gun ban or licensing requirement in the same breath with "shall not be infringed."

D.C. v. Heller would not immediately result in such a happy situation. The case was designed to ease weak-kneed judges into a slow walk back to the Constitution. All that would happen if the decision of the DCCA were simply left standing is that DC would return to its pre-1976 law. And that law is about as bad as what one finds in New York City today. Heller does not present the judges with the choice of keeping a gun ban or erasing all the unconstitutional gun laws on the books. Of course, the Court could do that, but such an outcome is unlikely in view of the strong constitutional stance that would be necessary for any kind of a favorable decision.

[cfin5]

Clement, and most judges, have bought into an illegitimate way of interpreting the Constitution that permits judges to consider whatever level of scrutiny they deem appropriate. Thus, they might decide (for reasons best known to themselves) that a higher level of scrutiny is required for interpreting a particular section of the Constitution. Conversely, they might decide that a lesser standard of scrutiny is all that is needed.

When we hear judges talk about which level of scrutiny is appropriate in a particular case, the proper translation of their legal jargon is: "How far from the meaning of the Constitution can we get away with this time?"

It is worth noting that the Second Amendment was written with the level of scrutiny appropriate for its own interpretation, i.e., the words "shall not be infringed." The Bush brief, and all other anti-gun briefs like it, have ignored these important four words in the Amendment. And for all the talk about a "level of scrutiny," the Bush brief is simply engaging in a coded discussion of what''s really happening -- their desire to get away with as much as possible.

[cfin5]

In some thirty pages of flip-flopping arguments, the Justice Department brief never once considered what the founders of the American republic might have meant by the phrase "shall not be infringed." But the Clement brief did criticize the idea that the Second Amendment was a categorical prohibition on banning guns.

The opinion of the DC Court of Appeals (DCCA) overthrew the DC handgun ban on the grounds that the Second Amendment protects the individual right to keep and bear arms. But this historical view of the Amendment should be sent back to the Appeals Court for another look, according to Bush''s brief. The Justice Department wants the Appeals Court to look at the District''s gun ban in terms of what is "reasonable."

Nary a thought about what the founders meant, and thus what the Second Amendment requires. The law should be "developed incrementally" according to Clement -- the living Constitution assertion that has been put forth by liberals for years to justify legislation by activist judges.

Clement''s language is the language of tyrants throughout history. He claims for the government the right to change the meaning of the law and the Constitution on a continuing basis -- on a whim. This avoids the messy business of proposing and debating constitutional amendments. It is much tidier to have a small group of rulers emerge from behind closed doors to announce what the law is today... and to declare what was legal a few minutes ago to be illegal now.

[cfin5]

The Solicitor General of the United States, Paul D. Clement, is the chief lawyer for the Justice Department. On January 11, Clement dropped a bomb designed to destroy the Second Amendment.

The bomb was a friend of the court brief that is a marvelous work of Newspeak as described by George Orwell in his novel of a horrifying future where words mean the opposite of their original definitions.

On the one hand, the brief argues that the Second Amendment protects an individual right to keep and bear arms that predated the creation of the U.S. government by the people. On the other hand, it concludes that any and all guns can be controlled or banned if a federal court finds that to be reasonable.

The brief asserts, with no proof whatsoever, that there is an "unquestionable threat to public safety that unrestricted private firearm possession would entail...." It is somewhat amazing that a brief in defense of the DC gun ban would say such a preposterous thing. It is the District of Columbia, with its gun ban, that usually has the highest murder rate of all U.S. jurisdictions. In high-gun-ownership jurisdictions such as neighboring Fairfax County, VA (with nearly twice the D.C. population), the murder rates are much lower. Fairfax County has a rate that is more than 100 times lower than the D.C. murder rate......continued