Category Archives: Keep and Bear Arms

District of Columbia v. Heller Gets Its Day In Court

The Supreme Court had allotted 75 mintues for oral argument in D.C. v. Heller today — 30 minutes for each side and 15 minutes for the U.S. Solicitor General — but they actually ended up running nearly half an hour longer as the Justices considered the interpretation and application of an Amendment that has been largely ignored:

A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia’s handgun ban could be considered a reasonable restriction on that right.

Two justices cleanly framed the issue confronting them after about 90 minutes of intense arguments that took a trip back to the English Bill of Rights and the founding of a new nation on this continent.

Justice Stephen G. Breyer noted the number of people killed by handguns and asked if it was unreasonable for a “city with a very high crime rate to say ‘no handguns here.’ ”

From the other side, Chief Justice John G. Roberts Jr. asked: “What’s reasonable about a total ban on possession?”

The justices peppered lawyer Walter Dellinger, who represented the District, about whether the law provided any adequate measure for residents to own and use a firearm for self-defense.

“Is there anything to show the District considered self-defense?” asked Justice Samuel A. Alito Jr. Dellinger said laws that allowed residents to own rifles and shotguns were an adequate provision.

Justice Anthony M. Kennedy, often seen as the deciding vote on the divided court, immediately made it clear he did not accept the District’s arguments — and the views of a vast majority of federal appeals courts — that the Second Amendment provided only a collective right to gun possession in furtherance of military purpose.


Kennedy said he thought the much-debated first clause was simply “reaffirming” the importance of the Constitution’s militia clause and that it clearly stated “there is a right to bear arms” that is separate.

It is often risky to make judgments about where a Judge or Justice stands based upon the questions they ask during oral argument, but in this case there were clearly four Justices who seemed to accept Heller’s argument that the 2nd Amendment provides an individual right to keep and bear arms — Justices Scalia, Alito, Kennedy, and Chief Justice Roberts. Justice Souter asked questions of both sides but also seemed more sympathetic to the individual rights interpretation, and Justice Thomas has previously hinted that he would fall into this camp as well (and given the way Thomas decides cases, it would be shocking if he didn’t.)

If that’s the case, then it would appear that the worst fears that libertarians and gun rights proponents had about this case — that it might result in the Court saying that the 2nd Amendment provided a collective rather than individual right — will be proven to be unwarranted.

One can only hope.

As I noted yesterday, though, that was only one portion of the issue before the Court, and the question of what standard to apply in the case was hotly argued as well:

Solicitor General Paul D. Clement told the justices that too strict a standard would imperil the federal government’s efforts to restrict machine guns or “plastic” guns meant to avoid metal detector screening.

The right to bear arms, Clement argued, “always coexisted with reasonable regulations of firearms.”

Alan Gura, representing those challenging the District law, said he agreed that the “government can ban arms that are not appropriate for civilian use,” but he said handguns clearly are not included in such a restriction.

Walter Dellinger, who represents the District, argued, of course, that the lowest standard of review should be applied and that even the District’s outright ban on handguns, along with the other regulations challenged was entirely reasonable. While I have a bias in this case, I’ve got to say that I don’t think Dellinger defended his position on this, or on the individual vs. collective right issue, all that well under questioning.

Over at ScotusBlog, Lyle Dennison has an extensive analysis of the oral argument:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.
With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

As Dennison goes on to note, one theme that emerged throughout the argument was the question of what the purpose of the Second Amendment was and what role, if any, an individual right to self-defense might play in the case. As the attorney for Heller noted at one point, the District’s ban on handguns and regulations on other weapons, along with a history of prosecuting people who used banned weapons in self-defense, means that District residents are essentially defenseless against an intruder breaking into their home in the middle of the night. What role that might play in the decision is unclear, but it was a powerful point.

So now, we wait, most likely until the very end of June when the Court’s term ends.

A transcript of the oral arguments can be found here.

I’ll post a link to the audio track when it’s available.

CSPAN audio can be found here (Realplayer required)

Gun Rights On The Docket Today At The Supreme Court

Beginning at 10am today and lasting for 75 minutes, the United States Supreme Court will hear argument in the most significant Second Amendment cases ever to come before it.

Today, in the Boston Herald, Robert Levy, one of the lead attorneys for the citizens in the case, gives a preview of the argument he’ll be making in less than an hour.

Meanwhile, in the Wall Street Journal law professor Randy Barnett gives a layman’s guide to the issues before the court today.

First, Barnett notes that, because of the lack of significant Second Amendment case law, the case will revolve around an originalist interpretation of the Constitution:

[B]oth sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be infringed.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

Barnett also argues that the only consistent originalist interpretation of the Second Amendment requiresa finding that the amendment protects an individual right:

In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias — notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons, and the 10th Amendment expressly distinguishes between “the people” and “the states.” Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states.

Finally, Barnett points out that Heller’s impact will be muted by the fact that it will only apply to Federal and D.C. law. The question of whether the Second Amendment applies to the states will have to wait for another day and another case.

I previewed the arguments in this post yesterday.

As for the mechanics, SCOTUS Blog has all the information:

At 10 a.m., the Court is scheduled to hear argument in District of Columbia v. Heller (07-290), involving a Second Amendment challenge to the District’s firearms regulations. Walter Dellinger of Washington, D.C., will argue for the petitioner, Alan Gura of Alexandria, Va., will argue for the respondent, and Solicitor General Paul D. Clement will argue for the United States as amicus curiae.

The argument is scheduled to last 75 minutes, and will be rebroadcast on CSPAN shortly after its conclusion. We will provide a link to the audio feed as soon as it is available.

A momentous day awaits us.

District of Columbia v. Heller Preview

Tomorrow, the Supreme Court will hear oral argument in District of Columber v. Heller, the case challenging the District of Columbia’s decades-old and near-complete ban on gun ownership by city residents. At stake is interpretation of an Amendment that has received almost no judicial scrutiny in 209 years since it was enacted.

One blogger, former Washington area talk-show host Chris Core, makes this point about what we might expect:

I, for one, have wanted a Supreme Court case on this for years. Let’s have the court finally tell us which side has the correct take on what the Founders meant. Both gun control and gun owner advocates have been trying to avoid such a case for fear of losing in the Court. Until now. Finally, probably in June, when the Court hands down its decisions, we will have clarity.

Or will we? I am betting we won’t. As often happens, I think the court will parse this one too finely to please either side. My thinking focuses on two of the words: “bear” and “arms”. There is a lot of wiggle room here. Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? And “arms”–does that mean you can have absolutely any kind of weapon you want and can afford, or does the state have the right to say which arms are permitted and which are not? As much as I, and probably you, would love a definitive answer, I doubt we will get one. Nonetheless, this is the most interesting Supreme Court case to watch since Roe v. Wade.

Chris is right that we are unlikely to see complete resolution of the gun control issue from this case, and part of that has to do with the fact I noted above — since the Second Amendment was ratified in 1791, there have only been a handful of cases that addressed it and none of them have dealt with one of the central issues in Heller.

The other reason is because Heller isn’t just a simple question of whether or not the Second Amendment protects an individual or collective right to gun ownership. To make a complex case simple, Heller really comes down to two questions:

  1. Does the Second Amendment create an individual right to keep and bear arms, or does it merely mean that the states can maintain militias made up of members of the citizenry ?
  2. Assuming that the right is an individual one, what constitutes an infringement of that right ?

On the first question, I think there’s a good chance that the Court will find that the Second Amendment right is an individual one. From an historical perspective, which is really the only guide that the Justices will have, the argument that the drafters of the Bill of Rights did not intend to protect the right of individual citizens to keep and bear arms is simply absurd. Yes, it’s possible that they will reverse the Court of Appeals — and, if they do, that is essentially the end of the day and, I think, the end of individual gun rights in the United States.

The second question, though, is much more nuanced and, as SCOTUSBlog’s Wiki on the case notes, the two sides disagree significantly on the answer:

Even if the Court should opt for an individual, private right to have guns, the two main briefs divide on how to judge when such a right were violated by a gun control law. The city government backs a reasonableness standard, the gun rights challengers favor “strict scrutiny.” And, it is no surprise, applying the standards that each advances would determine the fate of the handgun ban in the District.

In previous cases, the Supreme Court has held that nearly all of the other rights guaranteed by the Bill of Rights are subject to a “strict scrutiny” standard; meaning that any law that would abrogate those rights would have to pass the following test:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Under that standard, obviously, almost no restriction on a constitutionally protected right can pass muster.

There are lesser basis of review, though; under “rational basis review” all that the government needs to show is that there is some rational basis for the law, and, under so-called “intermediate scrutiny” where the government only needs to show that the law or regulation involves important governmental interests that are furthered by substantially related means.

The Court could decide that the regulations that impact Second Amendment rights only need to pass one of these lesser standards of review, meaning that some forms of gun control legislation would be acceptable.

Finally, it’s important to note that whatever happens in D.C. v. Heller may not have the widespread impact that some believe because the Supreme Court has never ruled that the Second Amendment applies to the states:

It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

The most likely outcome of the Court’s decision in Heller, whatever it might be, is that it will merely be the beginning of an entirely new area of Constitutional jurisprudence. Ten years from now, Second Amendment cases may be as common in the Supreme Court as First Amendment cases once were, and that will continue until the Court hammers out a coherent Second Amendment case law.

D.C. v. Heller Comes To The Supreme Court

On Tuesday, the United States Supreme Court will hear argument in what is clearly the most important Second Amendment case in decades:

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District’s handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment’s meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

“This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,” said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. “And that’s why there’s so much discussion on the original meaning of the Second Amendment.”

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

“The case has been structured so that they have to confront the threshold question,” said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. “I think they have to come to grips with that.”

Perhaps recognizing the importance of the case, the Supreme Court Clerk will make complete audio of Tuesday’s hearing available at the Court’s website almost immediately after argument is concluded on Tuesday morning. The decision itself, of course, won’t come until some time late in the Court’s term, which ends in June.

Complete background on the case, including links to all of the briefs filed by the parties and various other organizations can be found at ScotusBlog’s wiki for the Heller case.

When is Armed Rebellion Appropriate?

Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason.


One interesting question within political theory is the question of when armed rebellion against a government is justified. Most people that tackle this subject try to find some set of moral lines that a government must cross before it becomes illegitimate and thus armed rebellion becomes morally OK.

Being an anarchist I take a different tack. To me, since there is no such thing as a legitimate government and any organization that steals or commits acts of aggression against innocent people is behaving immorally, the question is one more of practicality than morality. The tax-man is another thief come to pick my pocket, and may morally be repelled with the same degree of violence directed toward any other thief. However, such violence may be unwise.

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

Sun-tzu – The Art of War

Anti-anarchist Political CartoonIn the late 19th century, as anarchism was coming into full flower, a significant faction of anarchists came to the conclusion that any government official, just like any extortionist or serial thief, could be attacked and even killed. They even encouraged such assassinations, reasoning that if government officials faced a high likelihood of death, they would quit their jobs, replacements would be hard to find and that the state would become paralyzed. They assassinated presidents and policemen, nobles and commoners. The “bomb throwing” anarchist had a major influence on history in the late 19th and early 20th centuries.

Far from weakening the state, their attacks strengthened it. Why? Because they did not consider the effect of their attacks on society as a whole. The vast majority of people didn’t think President McKinley was a gangster who needed killing. Rather they were horrified by the nihilistic abandon of the anarchists and terrified that such violence would be visited upon them. Rather than seeing the assassins’ targets as villains, the vast majority of people saw them as victims and the laws proposed to check the depredations of these anarchists were greeted with wide popular support.

The Palmer crackdowns of World War I, the laws suppressing political speech opposed to the war and government’s assumption of control over the economy were all justified as being necessary tools for government to protect the citizenry against the ‘anarchist threat’.

If fate means you to lose, give him a good fight anyhow.

William McFee

Soldier Shoots MotherOf course, just because a rebellion is doomed to failure does not mean that it should not be attempted. Take the brave Poles who fought heroically against the Germans in the Warsaw Ghetto. They had no chance of succeeding; the Germans had more artillery pieces than the Poles had bullets, yet with the exception of a handful of people like Mahatma Ghandi, most human beings would consider their rebellion and fight to the death to be honorable and praiseworthy.

So where do we draw the line? Why was President McKinley’s assassin wrong and Adolf Hitler’s would-be assassin right? Remember, the U.S. Army was happily slaughtering Philipinos and committing atrocities against civilian populations during the McKinley administration.

Photo of race riotTo me, the criterion that establishes the appropriateness of armed rebellion is the question of what impact the rebellion will have on society as a whole. Armed rebellion is rarely a good idea because it is very destructive to civil society. The violence expands as innocent people are harmed. People are forced to choose sides and choose reactively – driven to pick a side out of revenge or fear. Neighbor turns against neighbor, brother against brother, and the wounds of war are not easily healed. Often the victors establish a new more oppressive government to suppress their enemies than the one that was overthrown.

If we wish to live in a free society, then we must choose the actions that help bring about a free society. A free society is only possible when a preponderance of the people choose freedom, choosing not only to live peaceably with their fellows, but to leap to their neighbors’ defense when their neighbors are threatened. A free society is only possible if, when someone like Ron Reiner proposes to force people to send their children to his indoctrination centers and to force 1% of the population to pay for this operation, the idea is greeted with widespread derision and rejected out of hand. It means that people choose to respect their neighbors and they resist the impulse to loot their neighbors.

War is not its own end, except in some catastrophic slide into absolute damnation. It’s peace that’s wanted. Some better peace than the one you started with.

Lois McMaster Bujold, The Vor Game

Therefore, to muster an effective resistance, a person must choose a set of actions that help bring about a more peaceful society. Grabbing a rifle and shooting at those who oppress us as Carl Drega purported to do, no matter how tempting, is ultimately futile and counterproductive. Not only does it not attract people to one’s cause, but it provides the government with a opportunity to send out very persuasive propaganda to the effect that those who oppose the government are a menace to their neighbors and that the draconian measures that government officials take are needed to protect the citizenry from these dangerous non-conformists.

But we must also stand up against those who say that somehow this is all right, this is somehow a political act — people who say, I love my country, but I hate my government. These people, who do they think they are saying that their government has stamped out human freedom?

U.S. President Bill Clinton, Remarks at Emily’s List Event, May 1 1995


To create a free society, we must persuade our neighbors to seek freedom. We must persuade them to adopt our aims as their own. This is done through speech and writing, by setting a public example through acts of civil disobedience. Examples of these forms of resistance includes such steps as

  • Videotaping police operations and publishing them on youtube.
  • Inventing new technologies that make bad laws impossible to enforce.
  • Befriending law enforcement officers and persuading them to question the bad laws they enforce.
  • Organizing mass movements that publicize the pro-freedom cause.
  • Flouting unjust laws in a manner that elicits public contempt for them.

The Revolution was effected before the War commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations. This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.

John Adams

What is needed is a propaganda war, and these are the tools of the effective propagandist. Most people do have a rudimentary emotional sense of justice and the most effective forms of resistance are ones that evoke it. The goal is to have everyone, including government officials, rally to one’s cause.

Is violence never appropriate? Hardly. Violence is appropriate when both of the following conditions are met:

  1. Child killed in the bombing of the Alfred Murrah Federal BuildingThe violence must be proportionate to the aggression being resisted. The violence cannot be overly destructive or murderous. It must rather be at the minimum level to end whatever aggression one is defending against. Should the aggressor end his aggression and withdraw, the violence must end. This latter point is very important, since the only way a peaceful and freer society is going to happen is if the rebellion ends with the survivors willing to live peaceably with each other. And, of course, the violence cannot be aimed at innocent individuals. The picture to the right is not ‘collateral damage’ – it is murder!
  2. The violence will not make things worse. This requires that one of the following two conditions are met,
    1. The majority, or a sizeable minority of the populace supports the rebels’ aims but refuses to act out of fear. In the early 1920’s, as the Bolsheviks sought to establish control over the Russian empire, the GRU prosecuted a terror campaign against the citizenry. At any time of day there could be a knock on the door, or an agent seizing hold of a victim on the street or in their workplace. The victims would be bundled off to be tortured and, all to frequently, shot without even the pretense of a show trial to justify their murder. One Russian writer who witnessed this reign of terror commented that had one in ten households met the GRU agents with clubs and knives, it would have stopped the organization in its tracks. The GRU counted on fear and its ability to prevent its victims from acting in concert to enable their murderous campaign.
    2. When one faces certain death like the Poles facing deportation to Treblinka. In this case one has absolutely nothing to lose.

But if those criteria are not met, then violent rebellion is probably counterproductive and should be avoided. In the vast majority of cases, these criteria are simply not met.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

More on Obama’s Doublespeak

Last week I wrote a post about how Barack Obama was trying to have it both ways on the Second Amendment. Ken Blackwell at, however, believes that Obama’s doublespeak about the Second Amendment (among some of Obama’s other statements) reveals a disturbing pattern in his attitudes about individual rights and a host of other issues:

Yet while Mr. Obama says he supports your Second Amendment rights, he also says he supports that gun ban. He went on to say that local governments should be able to enact any gun control laws they consider necessary to end gun violence, and that any such measures are constitutional.
What kind of gun rights does he supposedly support? What kind of “right” do you have, when the government can completely rob you of 100% of the exercise of that right, anytime they decide they have a good reason?

That’s like saying you have the right to worship as you choose, but the government has the power to ban attending church. Or that you have the right to free speech, but that government has the power to stop you from speaking about any subject it wants. Or that you have the right against unreasonable searches and seizures, but that anything the government wants to search at your house is automatically reasonable.

A right that the government can completely take away at any time is no right at all.

So to say that the Second Amendment means you can own guns, but that the city where you live can ban all gun ownership, then you have no Second Amendment rights at all.

I truly hope that someone will have an opportunity to ask Obama if he really believes that local governments can toss aside the Constitution whenever convenient (though I have a hard time believing that Obama would restrict federal agents to the Constitution while giving local law enforcement carte blanche to violate basic civil liberties of citizens). As if doublespeak on the Constitution wasn’t enough, we can expect doublespeak on many other issues which concern such issues as the economy, terrorism, and growing government.

The article continues:

This is what Americans could expect from a President Obama. He’ll wax eloquent about your rights, but then say government can take away whatever part of them—or all of them—that it wants.

It’s the disturbing pattern that’s starting to emerge of Mr. Obama announcing a principle or a goal, then endorsing policies that are the exact opposite of what would promote that principle or goal. It’s political-doublespeak. It’s Orwellian. In fact, it’s Clintonian.

Look for this pattern across the board. This is how he’ll empower private markets, by increasing government control. He’ll preserve our private-market healthcare system, by having government take it over. He’ll lower taxes, by raising them. He’ll cut government, by increasing government spending. He’ll create jobs, by raising taxes and fees on business […]

I’m sure there will be even more Obama doublespeak as the campaign wears on. I wouldn’t be too surprised if he proposed a new cabinet level position such as The Ministry Department of Truth.

Obama Tries to Have it Both Ways on the Second Amendment

MILWAUKEE (AP) — Barack Obama said Friday that the country must do “whatever it takes” to eradicate gun violence following a campus shooting in his home state, but he believes in an individual’s right to bear arms.

Obama said he spoke to Northern Illinois University’s president Friday morning by phone and offered whatever help his Senate office could provide in the investigation and improving campus security. The Democratic presidential candidate spoke about the Illinois shooting to reporters while campaigning in neighboring Wisconsin.

The senator, a former constitutional law instructor, said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

When I ran across the headline’s article “Obama supports individual gun rights” in The Rocky Mountain News, I knew I had to read further. So far, so good…so what:

“I think there is an individual right to bear arms, but it’s subject to commonsense regulation” like background checks, [Obama] said during a news conference.”

He said he would support federal legislation based on a California law that would facilitate immediate tracing of bullets used in a crime. He said even though the California law was passed over the strong objection of the National Rifle Association, he thinks it’s the type of law that gun owners and crime victims can get behind.

To be honest, I don’t know anything about this particular policy [if anyone can give me a Cliff’s Notes version, please fill me in]. Being able to trace bullets used in a crime back to a particular firearm…I thought this was already an accepted, common practice? I must be missing something; clearly if the NRA is opposed to this policy maybe we should look at it.

So Obama believes that the right to bear arms is an individual right (more than we can say about most Democrats) but also believes in “common sense regulation.” Surely, Obama would not consider the D.C. gun ban to be common sense…or would he?

Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people’s guns.

At his news conference, he voiced support for the District of Columbia’s ban on handguns, which is scheduled to be heard by the Supreme Court next month.

“The notion that somehow local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born [sic] out by our Constitution,” Obama said.

Now I’m really confused! The only thing I can figure is that Obama’s views on gun rights are based on what he thinks his supporters want to hear at any given moment (in other words, he’s being a politician). Obama’s comments also reveal a fundamental misunderstanding about the Constitution on his part. The right to bear arms, or any of the other rights found in the Constitution for that matter, are not “born out” of the Constitution; the Constitution merely recognizes individual rights which already exist.

Given these seemingly contradictory statements, one wonders what policies an Obama administration would support and what sort of judicial appointments Obama would make with regard to the 2nd Amendment.


Brad pointed out that the journalist likely misinterpreted Obama’s statement:

The notion that somehow local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born [sic] out by our Constitution.

What Obama likely meant was “borne out by our Constitution” meaning “supported by our Constitution” rather than “born of our Constitution.” While Brad and I both disagree with Obama on this point even as he likely intended it, I think it’s important that we try to represent the senator’s remarks accurately.

Elsewhere in the article there was this:

The senator, a former constitutional law instructor, said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

Here again, it’s the journalist’s interpretation (Nedra Pickler in this case) of what she thought Obama said. Hopefully, Obama knows better since he is a former constitutional law instructor (though I’m sure that there are many constitutional law instructors who actually do believe the Constitution grants rights rather than recognizes their existence). The only way to determine if the journalist correctly interpreted Obama’s speech would be to find a transcript of the speech. So far, I have been unable to find one but when I do I will link the transcript to this post so readers can decide for themselves whether Pickler’s interpretation of Obama’s speech is correct or not.

The Media’s Latest Hoplophobia-mongering

Internet Broadcasting Systems has a new breathless article warning of the latest danger to government space travelers making the rounds of the internet:

Astronauts aboard the International Space Station apparently have access to a gun.

Oh the horror! Then comes the letdown:

Russian Cosmonauts carry a gun on their Soyuz space capsule, which is attached to the space station.

Every spacecraft carries survival gear for crash landings, and the Russian Soyuz has a kit that includes the gun.

The weapon they are referring to is a gun designed for the Soviet space program that can fire a shotgun shell, a solid round and a flare, and which can be converted into a shovel and a machete. The Soviets included this weapon in the inventory for the Soyuz because the capsule lands in the wilderness of south-western Russia and could be out of reach of rescue crews for hours or even days. The Soviets began including the guns after wolves were seen in the vicinity of a capsule during one recovery effort.

Of course, this is too substantive for this authors, who decided to stick to their core competency of yellow journalism:

Experts said the idea of an astronaut losing control was unthinkable until one year ago, when Lisa Nowak shattered the myth.
Her own attorney said she was insane when arrested for hunting down another woman, and prosecutors said she was heavily armed.
Nowak had flown in space just seven months earlier.

The article is substantially lifted1 from an article written by journalist James Oberg who is primarily focused on writing about space travel. His much more substantive article may be found here:

In fact, Moscow’s latest diplomatic offensive to get a treaty banning weapons in space may be shot down by one of the proposed pact’s little-noticed provisions: Nobody else should get to put weapons in space, but Russia gets to keep the ones it already has.

Cosmonauts regularly carry handguns on their Soyuz spacecraft — and actually, that’s not unreasonable. There are practical and historical justifications.

But wait! Apparently the survival gun is being phased out and replaced with conventional side-arms

Just before last October’s Soyuz launch, a British news report said that the gun, manufactured by a factory that is now in an independent country, was being phased out because all the in-stock ammunition had exceeded its certified shelf life. In its place, a standard Russian army sidearm was now to be carried.

Guns were never carried aboard U.S. spacecraft. Instead, a sharp machete served as the most serious armament for a jungle landing. Besides, with a worldwide U.S. network of bases and existing air-sea rescue forces, odds were that any downed astronauts would be found and rescued pretty quickly. The same now goes for Soyuz spacecraft supporting the international space station and usually carrying an U.S. crewmember at launch and landing — any off-course vehicle would have the entire U.S. rescue team at their disposal almost immediately. But the legend of the hungry wolves trumps current realities, so the guns have remained.

Then Oberg too engages in some hoplophobic advocacy of his own:

And here’s the safety issue that nobody seems to want to talk about. As the space station crew size increases, with a much wider range of crew members (including paying passengers, either tourists or representatives of national research groups from Malaysia, Chile, Venezuela or elsewhere), everyone on board will have access to the gun in the Soyuz. By 2009 there will always be two Soyuzes attached, so two guns will be available.

The next Soyuz launch is set for April 8. The handgun is probably already packed. If Moscow wants to show it is really serious about keeping space “weapons-free,” and keeping orbiting astronauts and cosmonauts free of too-easy access to lethal weapons, the gun ought to be removed. Carry a machete, carry a Taser — but stop carrying guns into space.

Mr Oberg’s point is quite interesting. It isn’t weapons per se that are dangerous, but guns themselves. Why a crazed crewmember with a pellet shooting gun is unacceptably dangerous while a crazed crewmember armed with a stun-gun is not, I am not sure, since any thing that can be done with a gun – incapacitate humans, wreck equipment, open the pressure hull to space – can also be done by a malevolent crewman armed with a stun-gun.

The fact is, prohibition never works. It never will work, even in space. Where humans go, conflict follows. Even in prisons, which should be a hoplophobe’s dream since the guards work diligently to keep anything that can be used as a weapon out of the inmates’ hands, stabbings and shootings with improvised weapons are quite common.

If prison guards can’t keep prisoners from smuggling weapons or constructing them, how do the administrators of government space programs propose to keep arms out of the hands of intelligent, free people who have a knack for engineering?

Twenty years ago, a fellow named Grant Callin penned a wonderful pair of books, Saturnalia and its sequel A Lion on Tharthree. I highly recommend them since it is some of the best ‘hard’ science ficition written in the 1980’s. Both books are focused on the discovery of alien artifacts on Saturn and the conflict between various consortia as they vie to control access to the alien technology.

In A Lion on Tharthree, the Captain of humanity’s first interstellar spacecraft takes Mr Oberg’s precautions. Getting wind of a potential mutinous act on the part of one unstable crewmember, he locks the only weapon in his safe. When the mutiny does occur, spearheaded by the executive officer and the representative of one of the consortia, the captain finds himself facing mutineers armed with guns constructed from the kinetic sculptures they had brought on board quite openly. The price the Captain and his crew pay for this willful disarmament are the life-threatening bullet wounds they suffer as they are forced to make a human wave assault in a desperate attempt to preserve their lives.

Mr Oberg’s recommendations, if adopted, would ensure that the first time a weapon is used in space it will be a disaster.


1 I find the warning at the bottom of the IBS article, “This material may not be published, broadcast, rewritten or redistributed,” kind of funny in that what they really did was rewrite Mr Oberg’s article, and that badly.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

More Amicus Briefs In D.C. v. Heller

There have been several more amicus briefs filed with the Supreme Court in support of the effort to overturn the District of Columbia’s gun ban, but the one that raises the most eyebrows is signed by the Vice-President himself:

Vice President Cheney signed on to a brief filed by a majority of Congress yesterday that urged the Supreme Court to uphold a ruling that the District of Columbia’s handgun ban is unconstitutional, breaking with his own administration’s official position.

Cheney joined 55 senators and 250 House members in asking the court to find that the Second Amendment protects an individual’s right to possess firearms and to uphold a lower court’s ruling that the D.C. ban violates that right. That position is at odds with the one put forward by the administration, which angered gun rights advocates when it suggested that the justices return the case to lower courts for further review.

In order to make his dramatic break with the administration, Cheney invoked his rarely used status as part of Congress, joining the brief as “President of the United States Senate, Richard B. Cheney.” It is a position he has used at times to make the point that he is sometimes part of the legislative branch and sometimes part of the executive.

A copy of the brief can be found here.

In addition to what will no doubt come to be called the Cheney brief, the Congress of Racial Equality has filed a pro-Respondent brief that asks the court to look at the racist history of gun control laws, a pertinent argument given the racial makeup of the District of Columbia. That brief can be found here.

Respondents File Brief In D.C. v. Heller

Earlier this week, the Respondents filed their opposition brief to the District of Columbia’s appeal in District of Columbia v. Heller:

If the Constitution protects an individual’s right to possess a handgun, then the District’s ban on such arms must be declared unconstitutional, lawyers for the man challenging the “nation’s most draconian gun laws” told the Supreme Court yesterday.

Lawyers for Dick Anthony Heller, a security guard, filed a brief saying that the District’s categorical restrictions are so broad that they cannot comply with the Second Amendment’s protection of the right to bear arms.

“However else [the District] might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional,” wrote Alan Gura, one of three lawyers representing those who challenged the District’s 1976 ban.

District of Columbia v. Heller, to be argued before the justices March 18, promises a historic examination of the Second Amendment, which holds that “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.”

As Jason noted earlier today, there was also an amicus brief filed by members of Congress in addition to several other amicus briefs in support of Heller’s position:

Additionally amicus briefs are expected to be filed before Monday’s deadline.

Members of Congress file brief in Heller case

Here is some good news concerning District of Columbia v. Heller. US Senators Kay Bailey Hutchison (R-TX) and Jon Tester (D-MT) are filing a brief with signatures of 250 House members and 55 Senators, urging that the DC gun law be overturned by the Supreme Court:

“All of the congressional legislative history is assuming that the Second Amendment, which is in the Bill of Rights, is an individual right and for a city or state to thwart this by taking a person’s right in their home to have a loaded gun, just seemed to be a perfect opportunity for the Supreme Court to affirm this individual right that Congress has acknowledged throughout its history,” Hutchison said.

Tester said the writers of the Constitution did not intend for laws to be applied to some people and not others or to be applied some times and not others.

“We cannot restrict the right to bear arms just like we can’t restrict the right to practice religion or the right of a free and independent press,” Tester said.

The Bush Administration has filed a brief on behalf of the District of Columbia. However, the administration says that it supports the individual rights view of the Second Amendment.

Heller could settle the question as to whether the Second Amendment is an individual right (which is my belief) or a collective right. To learn more about the case, visit DC Gun Case or read this article by Robert Levy. You can also listen this event podcast from the Cato Institute that explains some of the details of the case and why the challenge to the ban was presented.

Oral arguments for Heller begin on March 18th.

H/T: Of Arms and the Law

[UPDATE] Here is the brief signed by Vice-President Dick Cheney, 55 members of the Senate and 250 members of the House.

When Gun Rights and Property Rights Collide

THE ATLANTA JOUNAL-CONSTITIUTION - Calling it “a core fundamental issue” for his group this year, the head of the National Rifle Association lobbied hard Monday for a bill that would allow employees to keep handguns in their cars at work.

NRA Executive President Wayne LaPierre made a rare appearance under the Gold Dome Monday, a week before the Legislature convenes, to push the bill with key lawmakers.

My first instinct was to be on the side of the NRA. “What right does an employer have to prohibit me from having a firearm in my vehicle?” and “What right does my employer have in even asking and/or searching the contents of my car?” were my first thoughts. But then it occurred to me that we are dealing with a voluntary relationship between private citizens (an employer and an employee) that can be ended at any time for any reason by either party (assuming we are operating on the principle of life, liberty, and property). An employee of a company has a choice to either honor his employer’s wishes or find another job because the employer has obligation to allow employees to park on his or her property at all.

As Ayn Rand once said:

Contradictions do not exist. Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.

My false initial premise was that the right to bear arms was otherwise being infringed by the government but in fact this is not the case. In fact, this proposed legislation would be a violation of private property rights. McQ at QandO blog made a couple of very good points on this issue:

If you come to the door of my house wearing a pistol on your belt, I have every right to bar your entry and tell you that isn’t allowed in my home. It’s my property and I have the right to control who enters it and what goes on within its boundaries. Why wouldn’t that extend, as well, to the driveway?


And for the same reason I object to legislation which bans smoking on private property such as bars or restaurants. It is none of the state’s business. They’re welcome to ban smoking in every public venue they control, but stay away from private property. Camel’s nose, slippery slope and all that. Why do you suppose they feel empowered to go from banning smoking on private property to now dictating that private property owners must allow guns on their property?

Because we let them get away with the smoking ban, that’s why. While I don’t smoke and prefer a smoke free environment, I don’t agree that government has a role in deciding that for owners of private property, any more than I’d agree they could dictate whether anyone could smoke in my house.

There are plenty of causes the NRA is and should be leading when it comes to the Second Amendment. This is not one of them.

DoJ and DC Gun Ban

The Department of Justice has filed an amicus brief on behalf the District of Columbia. Yes, you read that right. The Bush Administration is supporting DC in the upcoming case on that will have a major impact on gun owner’s rights.

Here is the analysis from David Hardy:

As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.

There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.

The DoJ brief is here. You can view other case filings here. You can read more about the Heller case here.

This is bad news. The lower court decision to overturn the ban was very well written and address the heart of the issue head on:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

I don’t see what part of the right of people to keep and bear arms shall not be infringed is so damned hard to understand.

Federal Driver’s Licenses: The Government’s New Plan To Screw Up Your Life

The brainiacs who’ve made air travel almost as fun as a 10-hour Coca-Cola enema have unveiled their new master plan for creating an efficient security system…federally mandated drivers licenses for everybody under the age of 50, which all states will be forced to comply with by 2011, whether they’re capable or doing so or not, if the Department of Homeland Security gets its way.  The rationalization for this plan, of course, is the same as that for any authoritarian program…a centrally mandated, controlled, and issued driver’s license will make it more difficult for con artists, drug traffickers, illegal immigrants, or terrorists to gain access to identification that could compromise our security. 

What goes unsaid, of course, is that such a program will inevitably make it more difficult for everyone else to get a driver’s license as well.  Do you like the two-hour wait at your state DMV every time you have to renew your driver’s license?  You can bet it’s going to be longer once every application has to run through a federal database that’s responsible for processing 50 times as many applications which will need to be cross-checked against watchlists of known terrorists, criminals, or illegal aliens.  Considering how flawlessly this approach has worked for the FAA with their no-fly lists, I’m finding it a little hard to believe that the process will run more efficiently or effectively than it does now, or that you’ll be getting your new driver’s license back on the same day that you’ve applied for it (as you can now).  Especially since the systems and processes the feds use to cross-reference are notoriously buggy.

Of course now if you go to the DMV and the computers are down, the inconveniences are relatively minimal.  You may have to come back the next day and endure another two hour wait, and you have to be a bit more careful about any traffic violations lest you get busted for driving on an expired license but you’ll generally be able to go about your life relatively freely.  Under the feds’ new program, however, if you aren’t able to procure your license for reasons beyond your control, or if you’re actually denied a license you won’t be able to enter a federal building, board an airplane, open a bank account, buy a gun, vote, verify your identity when using a credit or debit card, or do anything else that’s significantly affiliated with the federal government.  Basically, the Real ID program will effectively strip anyone who doesn’t have a federally-issued ID card of their citizenship or ability to even function in everyday society.

Perhaps the people who oppose Real ID are being unfair and overly paranoid, but considering that the Bush’s new Czar of Homeland Security, Michael Chertoff, issues absolute gibberish like this…

“We worked very closely with the states in terms of developing a plan that I think will be inexpensive, reasonable to implement and produce the results,” he said. “This is a win-win. As long as people use driver’s licenses to identify themselves for whatever reason there’s no reason for those licenses to be easily counterfeited or tampered with.”

…to explain his position, somehow I don’t think that their fears are that insane, especially since the creation of an identification card that cannot be forged is about as likely as the ability to corporeally exist without occupying space.  And spending the better part of ten years watching my own little section of the federal government (the U.S. Army) screw up even the most basic of background checks has led me to believe that the feds are generally incapable of handling and should rarely, if ever, be entrusted with this sort of authority.

Update:  A commenter who expanded on this on his own site raised one very valid point that I think merits highlighting: 

It’s funny.  They keep calling it a “driver’s license,” but they never mention anything about driving.

Update 2:  Apparently 17 states have already objected to the Real ID plan. 

I Can’t Think Of A Catchy Title

I suppose the best way to describe myself would be to say that I have a problem with authority. I’ve always disliked when people told me what to do, even as a young child, and I’ve always preferred to find my own path through life and make my own decisions, even if it occasionally went against the conventional wisdom and sometimes worked to my short-term disadvantage. My dad said I inherited it from him, but that I’ve taken it to a whole new level. When I was young I wanted to be a journalist, until I got to college and realized that journalism was less about the search for objective truth than it was about writing the stories that best suited your employer’s interests, whether they were true or not (which didn’t sit well with me at all). So I drifted aimlessly through a couple of years of college as an indifferent (often drunk) student, unsure of what to do with myself until one of my fraternity brothers gave me a copy of “The Fountainhead” and I got hooked on the ideas that success and a refusal to conform to societal standards were not mutally exclusive, and that the greatest evil in the world was society and government’s failure to recognize or accept individuality and individual freedom as a strength, not a weakness. So I threw myself into studying politics and history, worked in a few political campaigns after college, had some success, and thought about doing a career in politics until I realized that most of the people I knew who had never had a career outside of politics had no comprehension of how the real world actually worked and tended to make a lot of bad, self-absorbed decisions that rarely helped the people they claimed to be representing.

That didn’t sit well with me either, so I decided to put any thoughts of going into politics on hold until I’d actually had a life and possibly a real career, and I spent the next couple of years drifting between a series of random yet educational jobs (debt collector, deliveryman, computer salesman, repo man, dairy worker) that taught me the value of hard work, personal responsibility and the financial benefits of dining at Taco John’s on Tuesday nights (2 tacos for a buck) when money got tight.

After awhile, however, the desire to see the world (and the need for a more consistent and slightly larger paycheck) convinced me to join the Army, where I spent ten years traveling around the world on the government dime working as an intelligence analyst. I generally enjoyed my time in the military, despite the aforementioned problem with authority (which wasn’t as much of an issue in the military as many people might think it would be), and I got to see that the decisions our political leaders make were sometimes frivolous, often ill-informed, and always had unforeseen repercussions down the road…especially on the soldiers tasked with implementing those decisions. I was fortunate enough to spend most of my 10 years in the military doing jobs I enjoyed, traveling to countries that I always wanted to see (Scotland is the greatest place in the world to hang out, Afghanistan is very underrated) and working with people I liked and respected, until I finally decided that at 35 it was time to move into a job where I didn’t have the threat of relocation lying over my head every two or three years, where I didn’t have to worry about my friends being blown up, and where I didn’t have to work in any capacity for George W. Bush.

I work now for a financial company in Kansas where I’m responsible for overseeing, pricing and maintaining farms, commercial and residential properties, mineral assets, insurance policies, annuities, etc. In my spare time I like to read books on economics, history, and politics (I’m preparing to tackle Murray Rothbard’s “Man, Economy & State” and Von Mises’ “Human Action”…should take me about a year at the rate I’m currently finishing books), watch movies, and destroy posers on “Halo 3″ (where I’m signed in under “UCrawford” for anyone interested in taking a shot at me some time). I used to play rugby until age, inconsistent conditioning, and a string of gradually worsening injuries finally convinced me to quit. I’m a rabid fan of the Kansas Jayhawks in general and their basketball and football programs in particular and I’m also a devoted fan of the Kansas City Chiefs and Royals. I’m also fond of going online and debating/picking fights with people on the merits of the philosophy of individual freedom…sometimes to the point of being an asshole (but hopefully a reasonably well-informed asshole). I’ve been a big fan of The Liberty Papers ever since finding it online, I respect the body of work they’ve put out, and I’m honored that Brad Warbiany invited me to join his jolly band of freedom fighters. So cheers, Brad, and to everyone else I look forward to reaching consensus or locking horns with you in the near future.

What’s At Stake In Parker v. D.C.

Mike Cox writes in the Wall Street Journal about what’s at stake in the D.C. gun control case now before the U.S. Supreme Court. At issue in the case is whether the Second Amendment protects an individual right to keep and bear arms, or whether the right is a “collective” one referring to the states’ right to form militias. With the exception of one Federal Circuit Court of Appeal, the consensus since the 1930s has been that the right is a collective one, thus justifying on a constitutional basis nearly any gun control measure you can think of.

As Cox notes, the language and history of the Bill of Rights clearly indicates otherwise:

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Here, “the people” are separate from “the states”; thus, the Second Amendment must be about more than simply a “state” militia when it uses the term “the people.”

Consider the grammar. The Second Amendment is about the right to “keep and bear arms.” Before the conjunction “and” there is a right to “keep,” meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Colonial history and politics are also instructive. James Madison wrote the Bill of Rights to provide a political compromise between the Federalists, who favored a strong central government, and the Anti-Federalists, who feared a strong central government as an inherent danger to individual rights. In June 1789, then-Rep. Madison introduced 12 amendments, a “bill of rights,” to the Constitution to convince the remaining two of the original 13 colonies to ratify the document.

Madison’s draft borrowed liberally from the English Bill of Rights of 1689 and Virginia’s Declaration of Rights. Both granted individual rights, not collective rights. As a result, Madison proposed a bill of rights that reflected, as Stanford University historian Jack Rakove notes, his belief that the “greatest dangers to liberty would continue to arise within the states, rather than from a reconstituted national government.” Accordingly, Mr. Rakove writes that “Madison justified all of these proposals (Bill of Rights) in terms of the protection they would extend to individual and minority rights.”

One of the earliest scholars of the Constitution and the Bill of Rights, Justice Joseph Story, confirmed this focus on individuals in his famous “Commentaries on the Constitution of the United States” in 1833. “The right of the citizens to keep and bear arms,” Story wrote, “has justly been considered, as the palladium of the liberties of republics, since it offers a strong moral check against the usurpation and arbitrary power of rulers . . .”

Based on the evidence, arguing that the Second Amendment right is somehow collective, when every other right protected by the Bill of Rights is clearly individual, is not only nonsensical, it is a perversion of history.

Update: As I’ve been reminded, the correct style of the case now before the Supreme Court is District of Columbia v. Heller.

Update #2: I should also note that the article of the Wall Street Journal article excerpted above is the Attorney General for the State of Michigan.

The Best Explanation of the Second Amendment I Have Ever Heard

“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.”- Amendment II, U.S. Constitution

As Doug reported yesterday, the U.S. Supreme Court is going to take its first case on the Second Amendment in almost 70 years. During this period, legal scholars have debated whether the right to bear arms as described in the Second Amendment refers to an individual right or a collective right. For those of us who are certain that the right to bear arms is an individual right, it seems curious that of the ten amendments in the Bill of Rights that only this amendment was intended to be a collective right and a restriction on the individual’s rights rather than a restriction on the federal government.

Still I have found the construction of the Second Amendment to be problematic. Language evolves over time; this gives opponents of the Constitution an opening to make the words mean what they wish them to mean. What exactly did the framers mean by “militia” ? My understanding has always been that the framers preferred a citizen’s militia (not part of the government) to a permanent standing army as the first line of defense (the government would reinstate the army in times of war). If this was their intent, then it would make sense that the framers would want citizens to be armed to form militias in the event that the country came under attack from foreign threats or be ready in the event that the government became to oppressive.

My other problem with the construction of the Second Amendment is that I find the first part “A well regulated Militia, being necessary to the security of a free State” completely unnecessary. To me “the right of the people to keep and bear Arms, shall not be infringed” is short, sweet, and to the point. Individuals need to have the right to defend themselves, not only from the government but also from other individuals who threaten their lives, liberties, and property. A store owner should have every right to protect his store, his customers, his merchandise and himself from a hoodlum attempting to rob his store. A woman should have every right to carry a handgun to protect herself from the rapist hiding in the shadows. In both of these scenarios, the police (the government) are likely to not be of immediate assistance to these individuals.

Be that as it may, the Second Amendment says what it says and I still believe the authors of the amendment intended the right to bear arms as an individual right. Penn Jillette of Penn & Teller gave the best explanation of the meaning of the Second Amendment I have ever heard in an episode from their 3rd Season of their Showtime show Bullshit!

“A well regulated militia, being necessary to the security of a free state,” sure we need an organized military force to defend your country BUT “the right of the people to keep and bear arms shall not be infringed.”

This is the people in contrast with the militia. It doesn’t say “the right of the militia to keep and bear arms shall not be infringed” it says “the right of the people.”

Now why the word “people” ? Because the people who wrote this just fought a war for two years against a tyrannical state militia. They knew the time might come when they would have to do that again so they made the possession of weapons a right that the militia could never take away.

I have never heard this explanation before but it makes perfect sense. Penn goes on to say that the purpose of the Second Amendment was to make certain that the citizens could violently overthrow the government if the citizens found it necessary. It’s only natural that the government would try to disarm the citizen if it was under constant threat of an armed revolution. Moa, Lenin, and Stalin understood this perfectly well and said much the same thing.

Quote of the Day: Rudy’s Latest Bullshit

“I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean.”

– Rudy Giuliani in a statement supporting the Supreme Court’s decision to take up Parker vs DC.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ and Rare. You can also find me over at the R Street Institute.

Supreme Court Agrees To Hear D.C. Gun Ban Case

As expected, the Supreme Court announced today that it would hear the appeal of the District of Columbia in the twin cases that resulted in the District’s ban on handguns being declared unconstitutional earlier this year:

The Supreme Court announced today that it will decide whether the District of Columbia’s ban on handguns violates the Constitution, a choice that will put the justices at the center of the controversy over the meaning of the Second Amendment for the first time in nearly 70 years.

The court’s decision could have broad implications for gun-control measures locally and across the country, and will raise a hotly contested political issue just in time for the 2008 elections.

The court will hear the case after the first of the year. A decision likely would come before it adjourns at the end of June.

Now the battle begins.

Boston Police Encourage Parents To Waive Their Children’s Fourth Amendment Rights

The Boston Police Department is hoping that it will be able to encourage parents to waive their childrens’ rights under the Fourth Amendment:

Boston police are launching a program that will call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children’s bedrooms.

The program, which is already raising questions about civil liberties, is based on the premise that parents are so fearful of gun violence and the possibility that their own teenagers will be caught up in it that they will turn to police for help, even in their own households.

In the next two weeks, Boston police officers who are assigned to schools will begin going to homes where they believe teenagers might have guns. The officers will travel in groups of three, dress in plainclothes to avoid attracting negative attention, and ask the teenager’s parent or legal guardian for permission to search. If the parents say no, police said, the officers will leave.

If officers find a gun, police said, they will not charge the teenager with unlawful gun possession, unless the firearm is linked to a shooting or homicide.

The searches, of course, would be perfectly valid because parents have the authority to allow the police to search their homes, including their childrens’ bedrooms. Moreover, since it appears that the aim of the program would be to confiscate weapons rather than prosecute teenagers, any Fourth Amendment violation would be largely moot since there would be no criminal prosecution that the Exclusionary Rule could be applied to.

The big question, though, isn’t why the police would do this. That’s rather obvious.

The big question is what parent in their right mind would allow this to happen ?

Supreme Court Punts On D.C. Gun Ban Case, For Now

It was widely expected that the Supreme Court would announce today whether it would accept the appeal filed by the District of Columbia in the lawsuit challenging it’s handgun ban. As Lyle Denniston reports at ScotusBlog, that wasn’t the case:

The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to come after the Court’s pre-Thanksgiving Conference — either on the day of the Conference, Nov. 20, or the following Monday, Nov. 26.

Figuring out what might be going on with this case at the Supreme Court is a bit like reading tea leaves, but Denniston offers several possible explanations:

[A]mong the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial. The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a handgun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer as to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.

There is, of course, the possibility that the Court could decide not to accept either appeal. However, given the fact that both cases present issues that haven’t been ruled on at the Supreme Court level in quite some time and the fact that there is presently a split among the Circuit Courts of Appeal on the meaning and proper interpretation of the Second Amendment, that outcome seems highly unlikely

So, stay tuned.

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