Tag Archives: District of Columbia v. Heller

Nearly half of all Democrats want to ban hand guns

The right of Americans to arm themselves is enshrined in the Second Amendment to the United States Constitution.
In 2008 in District of Columbia v. Heller, by a razor-thin margin of 5-4, the Supreme Court ruled that the Second Amendment protects the individual‘s right to possess a firearm unconnected with service in a militia.
SCOTUS made clear that the Second Amendment is a safeguard against a tyrannical government via citizens owning arms to defend themselves. What those arms are depend on the circumstances, specifically, arms technology. In the 18th century, those arms were rifles. But in the 21st century, handguns and rifles are insufficient against the vastly superior armament of  the government. And so, in District of Columbia v. Heller, the Supreme Court left open the possibility of the individual’s right to military-grade weapons as a means to defend ourselves against government tyranny.

See “Supreme Court ruled in 2008 that Second Amendment applies to individuals, not militias, and may include military weapons

A recent public opinion survey, however, shows that more than 4 of every 10 Democrats favor the banning of all handguns and, in so doing, stand against nothing other than the U.S. Constitution itself.

Becket Adams reports for the Washington Examiner, March 2, 2018, that according to a just-released YouGov statistically-representative survey of 1,500 registered voters, conducted on February 25-27, with a margin of error of ±2.9%:

  • In response to the question, “Do you favor or oppose … [banning] the sale of all handguns, except those that are issued to law enforcement officers?”,  44% of self-identified Democrats said they would support such a ban, while 46% said they would oppose it. In contrast, 81% of Republican respondents said they oppose the ban.
  • 82% of Democrats favor banning semi-automatic firearms — 73% “strongly” and 9% “somewhat” favor — such as AR-15 rifles like the one alleged to be used on February 14 by Nikolas Cruz in M.S. Douglas High School in Parkland, Florida. In contrast, 53% of Republican respondents said they’d oppose such a ban.
  • 41% of Democrats favor a repeal of the Second Amendment, while 39% said they’d oppose it. In contrast, 60% of the broader population overwhelmingly oppose repealing the Second Amendment, while 21% support it.
  • The majority of both Democrats (86%) and Republicans (81%) support prohibiting people with a “history of mental illness” from owning firearms. Of course, what constitutes “mental illness” or a “history” of mental illness is left to the authorities to define.

Hillary Clinton on Democrat useful idiots
See also:

~Eowyn

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Supreme Court ruled in 2008 that Second Amendment applies to individuals, not militias, and may include military weapons

On February 23, 2018, during a radio interview with Hugh Hewitt, Stanford U. political science professor and President George W. Bush’s secretary of state Condoleezza Rice said:

“I think it is time to have a conversation about what the right to bear arms means in the modern world. I don’t understand why civilians need to have access to military weapons. We wouldn’t say you can go out and buy a tank.”

By “military weapons,” Rice means the semi-automatic AR-15 rifle that confessed Parkland school shooter Nikolas Cruz allegedly used to kill 17 students and teachers on Feb. 14 in Parkland, Florida.

It is astonishing that a political science professor doesn’t seem to know that ten years ago in 2008, the Supreme Court had ruled 5-4 that:

  1. The Second Amendment’s guarantee of the “right to bear arms” pertains to individuals and not, as some insist, to militia.
  2. The Second Amendment’s prefatory clause [a “well regulated Militia, being necessary to the security of a free State“] may include citizens’ right to bear military weapons because today’s military has sophisticated weapons that government didn’t have in the 18th century. To ban individual right to such weapons would effectively render meaningless the prefatory clause’s “well regulated Militia, being necessary to the security of a free State”.

District of Columbia v. Heller, 554 U.S. 570, was the first Supreme Court case to decide whether the Second Amendment protects an individual’s right to keep and bear arms for self-defense. Prior to the Court’s ruling, the Firearms Control Regulations Act of 1975 had restricted District of Columbia residents from owning handguns except for those registered prior to 1975.

But the Court, in District of Columbia v. Heller, struck down the Regulations Act’s ban on handguns as unconstitutional, as well as the Act’s requirement that all firearms — including rifles and shotguns — be kept “unloaded and disassembled or bound by a trigger lock”.

The majority opinion, written by the late Justice Antonin Scalia, is considered an example of constitutional originalism — interpreting the meaning of the U.S. Constitution in accordance with the original intent of our Founders. According to the Court’s ruling:

  1. The Second Amendment protects the individual‘s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. (Pg. 2–53 of District of Columbia v. Heller)
  2. The “people” to whom the Second Amendment right is accorded are the same “people” who enjoy First and Fourth Amendment protection. In the words of Justice Scalia: “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”

The Court’s interpretation is confirmed by:

  1. Analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. The Second Amendment’s drafting history reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. (Pg. 28–32 of District of Columbia v. Heller)
  2. Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century. (Pg. 32–47)

But the Supreme Court also ruled that the Second Amendment right, like most rights, is not unlimited:

(1) The right to bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

(2) On the matter of “military weapons,” the Supreme Court ruled that:

“We also recognize another important limitation on the right to keep and carry arms. Miller [United States v. Miller, 307 U. S. 174] said . . . that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradi­tion of prohibiting the carrying of ‘dangerous and unusual weapons.’ […] It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [a “well regulated Militia, being necessary to the security of a free State”]. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim­ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” (pp. 58-59)

Clearly, SCOTUS’ 2008 ruling understood the 2nd Amendment as a safeguard against a tyrannical government via citizens owning arms to defend themselves. What those arms are depend on the circumstances, specifically, arms technology. In the 18th century, those arms were rifles. But in the 21st century, handguns and rifles are insufficient against the vastly superior armament of  the government’s military. And so, in District of Columbia v. Heller, the Supreme Court left open the possibility of individual right to military-grade weapons as a means to defend against a tyrannical government.

If we are to go by Condoleezza Rice’s assertion — “I don’t understand why civilians need to have access to military weapons” — we might just as well junk the Second Amendment entirely.

UPDATE (Feb. 28):

I just took an online survey, the language of which is skewed in favor of gun control. Please go take it and register your views! Click here.

~Eowyn

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US appeals court upholds Maryland assault weapons ban

debbie ar15

Me shooting a “weapon of war.” Molṑn Labé.

Next stop: SCOTUS.
From Fox News: Maryland’s ban on 45 kinds of assault weapons and its 10-round limit on gun magazines were upheld Tuesday by a federal appeals court in a decision that met with a strongly worded dissent.
In a 10-4 ruling, the 4th U.S. Circuit Court of Appeals in Richmond, Va., said the guns banned under Maryland’s law aren’t protected by the Second Amendment.
“Put simply, we have no power to extend Second Amendment protections to weapons of war,” Judge Robert King wrote for the court, adding that the Supreme Court’s decision in District of Columbia v. Heller explicitly excluded such coverage.
Maryland Attorney General Brian Frosh, who led the push for the law in 2013 as a state senator, said it’s “unthinkable that these weapons of war, weapons that caused the carnage in Newtown and in other communities across the country, would be protected by the Second Amendment.”
“It’s a very strong opinion, and it has national significance, both because it’s en-banc and for the strength of its decision,” Frosh said, noting that all of the court’s judges participated.
Judge William Traxler issued a dissent. By concluding the Second Amendment doesn’t even apply, Traxler wrote, the majority “has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.” He also wrote that the court did not apply a strict enough review on the constitutionality of the law.
“For a law-abiding citizen who, for whatever reason, chooses to protect his home with a semi-automatic rifle instead of a semi-automatic handgun, Maryland’s law clearly imposes a significant burden on the exercise of the right to arm oneself at home, and it should at least be subject to strict scrutiny review before it is allowed to stand,” Traxler wrote.
National Rifle Association spokeswoman Jennifer Baker said, “It is absurd to hold that the most popular rifle in America is not a protected arm' under the Second Amendment."</strong> She added that the majority opinion "clearly ignores the Supreme Court's guidance from District of Columbia v. Heller that the Second Amendment protects arms that arein common use at the time for lawful purposes like self-defense.”‘
The NRA estimates there are 5 million to 10 million AR-15s — one of the weapons banned under Maryland’s law — in circulation in the United States for lawful purposes. Asked about an appeal, Baker said the NRA is exploring all options.
But Elizabeth Banach, executive director of Marylanders to Prevent Gun Violence, said the decision is
“overwhelming proof that reasonable measures to prevent gun violence are constitutional.”
“Maryland’s law needs to become a national model of evidence-based policies that will reduce gun violence,” Banach wrote in a statement.
U.S. District Judge Catherine Blake upheld the ban in 2015, but a divided three-judge panel of the 4th U.S. Circuit Court of Appeals ruled last year that she didn’t apply the proper legal standard. The panel sent the case back to Blake and ordered her to apply “strict scrutiny,” a more rigorous test of a law’s constitutionality. The state appealed to the full appeals court.
Maryland passed the sweeping gun-control measure after the 2012 Sandy Hook Elementary School massacre that killed 20 children and six educators in Connecticut. King mentioned the massacre at the start of the ruling.
“Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there,” King wrote. He listed the 2012 shootings at a movie theater in Aurora, Colorado; the December 2015 shootings in San Bernardino, California; and the shootings last year at an Orlando, Florida, nightclub, where 49 people were killed and 53 injured.
King also noted that enacting the law is “precisely the type of judgment that legislatures are allowed to make without second-guessing by a court.”
“Simply put, the State has shown all that is required: a reasonable, if not perfect, fit between the (Firearms Safety Act) and Maryland’s interest in protecting public safety,” King wrote.
DCG

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Et tu, Scalia?

Scalia opens door for gun-control legislation, extends slow burning debate

FoxNews.com – July 29, 2012

Supreme Court Justice Antonin Scalia said Sunday, the Second Amendment leaves open the possibility of gun-control legislation, adding to what has become a slow-boiling debate on the issue since the Colorado movie theater massacre earlier this month.
Scalia, one of the high court’s most conservative justices, said on “Fox News Sunday” that the majority opinion in the landmark 2008 case of District of Columbia v. Heller stated the extent of gun ownership “will have to be decided in future cases.”
“We’ll see,” he said.
Scalia’s  comments follow the July 20 massacre at the Aurora, Colo., movie theater in which the alleged gunman, with the help of a semi-automatic weapon and an ammunition clip that could hold as many as 100 rounds, killed 12 and wounded 59 others.
His comments also follow those of lawmakers who have called for tougher gun-related laws in the wake of the shootings – most recently New Jersey Sen. Frank Lautenberg and New York Rep. Carolyn McCarthy, Democrats who said Sunday they will introduce legislation this week to “make it harder for criminals to anonymously stockpile ammunition through the Internet, as was done before the recent tragic shooting in Aurora, Colorado.”
They are scheduled to announce the bill to the public Monday outside City Hall in New York City.
New York City Mayor Michael Bloomberg, a Republican turned independent, has been among the most vocal on the issue since the mass shooting. …
Congress passed a 10-year ban on assault-style weapons that expired in 2004, but there has since been no real interest among Capitol Hill lawmakers to reinstitute a ban.
On Wednesday, Obama talked about possible changes, but the following day Senate Majority Leader Harry Reid said he couldn’t fit the gun control debate into the schedule.
Asked if the Senate might debate the issue next year, Reid said, “Nice try.”
The president was not specific about what measures he’d like to see enacted when he touched on the issue in a speech to the National Urban League. He affirmed his belief in Americans’ right to own guns, but he singled out assault rifles as better suited for the battlefield.
“I believe the Second Amendment guarantees an individual the right to bear arms,” he said. “But I also believe that a lot of gun owners would agree that AK-47s belong in the hands of soldiers, not on the streets of our cities.”
Obama also called for stepped-up background checks for people who want to purchase guns and said he would also seek a national consensus on combating violence.
White House Press Secretary Jay Carney clarified Thursday that the president is not necessarily talking about new laws.
Scalia said exceptions to gun rights were recognized when the Second Amendment was written, including a tort that prohibited people from carrying a “really horrible weapon just to scare people like a head ax or something.”
Republicans have largely said new laws are not the answer. Romney, pressed on the gun control issue in an NBC News interview during his visit in London, said changing laws won’t “make all bad things go away.” “I don’t happen to believe that America needs new gun laws,” he said.
Romney said a lot of what alleged shooter James Holmes did was clearly against the law. “But the fact that it was against the law did not prevent it from happening,” he said.
According to a Gallup poll in 1990, 78 percent of those surveyed said laws covering the sale of firearms should be stricter, while 19 percent said they should remain the same or be loosened.
By the fall of 2004 support for tougher laws had dropped to 54 percent. In last year’s sounding, 43 percent said they should be stricter, and 55 percent said they should stay the same or be made more lenient.
Scalia, in his wide-ranging interview with Fox News also repeated his criticism of Chief Justice John Roberts and the majority opinion this summer that largely upheld President Obama’s Affordable Care Act, particularly the part that called the consequence for non-compliance a tax, not a penalty. “You don’t interpret a penalty to be a pig,” he said. “It can’t be a pig. … There is no way to regard this penalty as a tax.”
~Eowyn

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