After Supreme Court Ruling, N.Y. Gun Laws Eyed
New York City, which has some of the most restrictive and perhaps even unconstitutional gun laws in the nation, will become a flash point in the legal battle over gun control, as civil rights proponents turn their attention to enforcing the historic gun rights decision issued yesterday by the Supreme Court.
For the first time in the nation's history, the Supreme Court has recognized that the Second Amendment affords individuals the right to keep a gun at home for protection.
"The movement to end private firearms ownership in America is over," the gun rights attorney who argued the case before the federal high court, Alan Gura, told The New York Sun.
Yesterday's 5-4 ruling, which declared a Washington, D.C., handgun ban to be unconstitutional, will put advocates of municipal gun control on the defensive. Gun proponents say to expect new suits challenging handgun bans and licensing restrictions from New York to Chicago to San Francisco.
Reposted from www.talkleft.com, 10th Circuit: No Individual Right to Bear Arms By Jeralyn, Section Constitution Posted on Wed.
10th Circuit: No Individual Right to Bear Arms
Posted on Wed Mar 24, 2004 at 08:53:00 PM EST
Tags: Second Amendment (all tags)
The Tenth Circuit Court of Appeals joins a growing number of circuits in holding that the Second Amendment does not confer an individual right to bear arms (pdf). For those who haven't read it lately, the Second Amendment says:
“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.”
The court reaffirms prior decisions holding that:
...to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a “well-regulated” “state” “militia.”.... The Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia.
The Court notes that the 5th Circuit (which includes Texas) is the only circuit to hold the Second Amendment conveys an individual rather than collective right to bear arms. In the Emerson case in the 5th Circuit,
The Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.”
Here's where the other circuits stand:
In contrast, the Fourth, Sixth, Seventh, and Ninth Circuits have adopted the most restrictive interpretation (also known as “the collective rights model”) of the Second Amendment. Under “the collective rights model,” the Second Amendment never applies to individuals but merely recognizes the state’s right to arm its militia.
[the] First, Third, Eighth, and Eleventh Circuits have all adopted a "sophisticated collective rights model.." Under this interpretation of the Second Amendment, an individual has a right to bear arms, but only in direct affiliation with a well-organized state-supported militia.
The Tenth Circuit joins the "sophisticated collective rights model" group of circuits. The Court also rejects a claim that authority to regulate the right to bear arms is reserved to the states under the Tenth Amendment. It held that private citizens do not have standing to raise such a claim.
My view is in accord with that of the 5th Circuit, but we're not moving to Texas just to exercise our individual right to bear arms.
Then, in the comments section (a slightly opposing viewpoint that makes a whole heck of a lot of sense):
In the D.C. appellate opinion in Heller upholding the individual rights theory, it links reasonable regulations to public safety. See pages 53, 54.
The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("[G]overnment may impose reasonable restrictions on the time, place, or manner of protected speech . . . ."). Indeed, the right to keep and bear arms--which we have explained pre-existed, and therefore was preserved by, the Second Amendment--was subject to restrictions at common law.We take these to be the sort of reasonable regulations contemplated by the drafters of the Second Amendment. For instance, it is presumably reasonable "to prohibit the carrying of weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror . . . ." State v. Kerner, 107 S.E. 222, 225 (N.C. 1921). And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment. Robertson, 165 U.S. at 281-82.
Similarly, the Court also appears to have held that convicted felons may be deprived of their right to keep and bear arms. See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing Miller,
307 U.S. at 178). These regulations promote the government's interest in public safety consistent with our common law tradition. (my emphasis) Just as importantly, however, they do not impair the core conduct upon which the right was premised.
Another paragraph I like in the Heller opinion, p. 23
When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment's inclusion therein strongly
indicates that it, too, was intended to protect personal liberty.
Reposted from www.guncite.com/journals/kmich.htmlEqually ironic, the legal community's endorsement of the exclusively state's right interpretation has actually aided the gun organizations in one way. By concentrating attention on the state's right position, the gun-owner organizations have been able to avoid the details of their own individual right position, which seems inconsistent with the kinds of gun controls the organizations have themselves endorsed.[23] In almost every state, the basic handgun legislation, including (p.210)both the prohibition on the carrying of concealed weapons and the restrictions on gun ownership by felons, minors, and incompetents,[24] stems from the Uniform Revolver Act,[25] drafted and promoted by the NRA and the now defunct United States Revolver Association in the first three decades of this century.[26] However socially desirable these and other controls may be, they raise problems for the individual right interpretation which its proponents have rarely, if ever, attempted to address. For example:
(1) Since the amendment contains no express limitation on the kind of "arms" guaranteed, why does it only protect possession of ordinary small arms (rifles, shotguns, handguns)? Why not of artillery, flame-throwers, machine guns, and so on, to the prohibition of which gun-owner groups have readily acceded?
(2) Likewise, since the amendment's guarantee does not explicitly limit gun ownership to responsible adults, why does it not proscribe the laws restricting handgun ownership by lunatics, criminals and juveniles?
(3) Since the amendment guarantees an (apparently unqualified) right to "bear" as well as to "keep" arms, how can individual right proponents endorse concealed-carry proscriptions?
(4) Conversely, if all these controls are consistent with the gun-owner groups' position, how can they contend that registration and licensing requirements are not?[27]
No comments:
Post a Comment