Tuesday, November 20, 2007

Historical Event Updated

It appears to have gone unnoticed for the most part both in the mainstream media as well as the blogosphere but an historical event occurred today. The Supreme Court of the U.S. today granted certiorari in the case of the D.C. Circuit Court of of Appeals decision in District of Columbia vs Heller wherein the appellate court declared the DC government's effective ban on the ownership of operative firearms and especially hand guns by private citizens unconstitutional under the Second Amendment to the Constitution.

The DC government appealed the decision to SCOTUS and arguments will begin next month.

The Second Amendment consists of a single sentence which reads as follows:

"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 arguments in the case are likely to revolve around which of the two clauses in the sentence are definitive, the prefatory clause: "A well regulated militia being necessary to the security of a free State..." or the declarative one: "...the right of the people to keep and bear arms shall not be infringed."

This issue has as yet to be definitively decided by SCOTUS except obliquely in the Miller decision of 1939 which only addressed the type of firearms traditionally not utilized by state militias i.e. sawed off shotguns.

The gun controllers which ΛΕΟΝΙΔΑΣ has discussed this issue with invariably hang their hats on the prevalence of the prefatory clause of the Amendment by positing that it guarantees the right of the various states to raise and regulate militias (this would be one of the few instances wherein those of the left would support "states rights") whereas the individual rights adherents aver that all other Amendments in the Bill of Rights refer to individual rights, therefore the Amendment must be interpreted as protecting individual citizens.

There are other sub arguments on both sides which are partially discussed here and elsewhere.

You all get three guesses as to ΛΕΟΝΙΔΑΣ' position on the issue and the first two do not count.


Update 21 Nov 2007 @ 13:09 EST: Academics for the Second Amendment ("A2A") will be filing an amicus brief in the US Supreme Court in support of Mr. Heller (and urging the Supreme Court to affirm the Court of Appeals decision that the DC gun laws are unconstitutional). Our brief will be written by attorneys David Hardy and Joseph Olson with historical assistance from Clayton Cramer.

cross posted at: Eternity Road

Update II 22 Nov 2007 @ 09:11 EST

The following is a comment on this posting left by an anonymous commenter at Eternity Road identifying himself as Matt Burchett:

If the Founders were formulating the 2nd Amendment today, their sentiments might be better understood:

“A strong citizenry being necessary to the security of a free country, the right of the people to own and carry firearms shall not be infringed.”

I’m weary of lawmakers mentioning “hunting and sporting purposes” when trying to explain why their infringements aren’t infringements. The Founders were not recognizing the citizenry’s right to bag squirrels for dinner, but rather enshrining the right of free men—when justly aroused—to use deadly force against tyrants (foreign AND DOMESTIC). Lest we forget, the Framers had almost been bled white doing that very thing a few years before penning the immortal words of the Bill of Rights. Skeet shooting was not on their minds.

The definition of “militia” has been the subject of much ignorance and mischief, but simply refers to able-bodied citizens of fighting age without regard to their being past or present members of any of the Armed Services, or the National Guard, or even the Baptist Ladies Sewing Circle. Even the current Federal Code (Title 10 somewhere) defines “militia” as including male citizens who are NOT in the organized services or guard.

And “well-regulated” was not a reference to having a cool handbook or being subject to tons of rules or doing lots of drills on the parade ground. It simply meant “vigorous” or “strong” ... as in capable of self-defense. This usage is born out by the contemporaneous writings of Hamilton and Washington (and many others).

Also, “arms” were understood in the Founders’ time to be weapons capable of being carried on one’s person—pistols, rifles, knives, etc— as opposed to “ordnance”, which would have included big bangers like cannon then and nukes now.

Anyhow, I agree the 2nd Amendment is awkwardly crafted for our modern eyes, especially those not thoroughly familiar with law or history. But the 2nd Amendment has not been the subject of so many attacks because it is inscrutable. On the contrary. It is as clear as holy water to the legal vampires brooding in our legislative halls.

1 comment:

Wollf Howlsatmoon said...

Very good. I trust you had a pleasant Thanksgiving.