Lawyer-Wearing-Yarmulka
Wednesday, March 14, 2007
Guns, Guns, Guns, Guns
I have been waiting for baited breath for the brilliant legal scholars at the NY Times editorial board to comment on Parker v. District of Columbia, and they finally have. And as expected, it's a laugher:
The key legal precedent is a 1939 decision in which the Supreme Court concluded that the
amendment protects the private ownership of guns only when it has “some reasonable relationship to the preservation of efficiency of a well-regulated militia.” By not viewing the amendment as creating a basic individual right, the decision left room for broad regulation of gun ownership.
The 1939 decision they refer to is US v. Miller, where two bootleggers who were arrested for carrying sawed-off shotguns tried to raise a 2nd Amendment defense. The Supreme Court rejected the argument:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
So, basically, because the weapon in question was not considered a military weapon, not useful being used in a militia, it's not protected by the 2nd Amendment. (Based on the language of the Court, it would seem that heavier weapons such as machine guns and grenade launchers would be protected, but I digress).
Back to what the Times said:
The key legal precedent is a 1939 decision in which the Supreme Court concluded that the amendment protects the private ownership of guns only when it has “some reasonable relationship to the preservation of efficiency of a well-regulated militia.” By not viewing the amendment as creating a basic individual right, the decision left room for broad regulation of gun ownership.
I'm sorry but that's a complete mischaracterization of Miller. Miller only discussed the kind of weapon protected, not the right of the individual to carry a it. The only "broad regulation of gun ownership" that the Supreme Court allowed under Miller, was the regulation of guns that have no use in a military or militia context.
This case is surely going to be reviewed by the Supreme Court, as there is now a conflict between the Circuits. Should be a fascinating case.
Side note- I'm not arguing against gun control. Like every other right in the Bill of Rights, the right to bear arms is not unlimited. But at some point, regulation interferes with the Amendment. A regulation that neuters your 2nd Amendment rights is no different than a regulation that neuters your 1st Amendment rights.
posted by LWY, 9:38 PM
11 Comments:
Great post!
The only "broad regulation of gun ownership" that the Supreme Court allowed under Miller, was the regulation of guns that have no use in a military or militia context.
I don't see how you're disagreeing. The phrase you quote appears consistent with your interpretation of the decision. The decision allowed "broad regulation of gun ownership" in that it allowed regulation of all guns that don't have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." That would seem to include a lot of guns, perhaps including handguns. On the other hand, it would seem to exclude "assault weapons" and the like, so maybe DC residents will be restricted to carrying those. ;-)
I'm surprised you didn't bring up one of the arguments raised by DC officials, which is horrible. They basically said, "Hey, DC's not a state, so the Bill of Rights doesn't apply to us!"
I don't see how you're disagreeing. The phrase you quote appears consistent with your interpretation of the decision. The decision allowed "broad regulation of gun ownership" in that it allowed regulation of all guns that don't have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." That would seem to include a lot of guns, perhaps including handguns. On the other hand, it would seem to exclude "assault weapons" and the like, so maybe DC residents will be restricted to carrying those. ;-)
I'm surprised you didn't bring up one of the arguments raised by DC officials, which is horrible. They basically said, "Hey, DC's not a state, so the Bill of Rights doesn't apply to us!"
I don't see how you're disagreeing.
The Times is trying to use Miller as proof that there is no individual right to own guns. But as I said in the post, Miller says no such thing, as the case only focuses on the particular weapon, not on weapons in general. Had the bootleggers been carrying rifles, odds are they would have won.
The decision allowed "broad regulation of gun ownership" in that it allowed regulation of all guns that don't have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." That would seem to include a lot of guns, perhaps including handguns. On the other hand, it would seem to exclude "assault weapons" and the like, so maybe DC residents will be restricted to carrying those. ;-)
I'd say just the opposite- handguns are standard issue the Army. Except for maybe a Saturday Night Special or a zip gun, I can't think of weapon that doesn't have "some reasonable relationship to the preservation or efficiency of a well-regulated militia".
I'm surprised you didn't bring up one of the arguments raised by DC officials, which is horrible. They basically said, "Hey, DC's not a state, so the Bill of Rights doesn't apply to us!"
I ignored it because it's so awful. I still can't believe the dissent adopted the claim.
The Times is trying to use Miller as proof that there is no individual right to own guns. But as I said in the post, Miller says no such thing, as the case only focuses on the particular weapon, not on weapons in general. Had the bootleggers been carrying rifles, odds are they would have won.
The decision allowed "broad regulation of gun ownership" in that it allowed regulation of all guns that don't have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." That would seem to include a lot of guns, perhaps including handguns. On the other hand, it would seem to exclude "assault weapons" and the like, so maybe DC residents will be restricted to carrying those. ;-)
I'd say just the opposite- handguns are standard issue the Army. Except for maybe a Saturday Night Special or a zip gun, I can't think of weapon that doesn't have "some reasonable relationship to the preservation or efficiency of a well-regulated militia".
I'm surprised you didn't bring up one of the arguments raised by DC officials, which is horrible. They basically said, "Hey, DC's not a state, so the Bill of Rights doesn't apply to us!"
I ignored it because it's so awful. I still can't believe the dissent adopted the claim.
The Times is trying to use Miller as proof that there is no individual right to own guns. But as I said in the post, Miller says no such thing, as the case only focuses on the particular weapon, not on weapons in general.
The Times appears to be saying that the case shows individuals have no right to own guns with no reasonable connection to a well-regulated militia. I don't see how that's different from your stance.
handguns are standard issue the Army.
Good point. I guess I don't understand how sawed-off shotguns can't be used by a militia while handguns can.
The Times appears to be saying that the case shows individuals have no right to own guns with no reasonable connection to a well-regulated militia. I don't see how that's different from your stance.
handguns are standard issue the Army.
Good point. I guess I don't understand how sawed-off shotguns can't be used by a militia while handguns can.
The Times appears to be saying that the case shows individuals have no right to own guns with no reasonable connection to a well-regulated militia. I don't see how that's different from your stance.
That's not what the Times is saying. They're saying that there is not individual right to own any guns. It's a collective right(They wrote an editorial in 2002 denouncing the Justice department for suggesting that 2nd Amdendment protects and individual's right to bear arms)
I'm saying Miller says no such thing, despite the Times' insisting that it does.
Good point. I guess I don't understand how sawed-off shotguns can't be used by a militia while handguns can.
Ironically, the Court got it wrong in Miller, shotguns were actually used in the Military at the time. They just assumed that it wasn't a military weapon. No one raised the issue in the briefs, and there was no oral arguments in the case.
That's not what the Times is saying. They're saying that there is not individual right to own any guns. It's a collective right(They wrote an editorial in 2002 denouncing the Justice department for suggesting that 2nd Amdendment protects and individual's right to bear arms)
I'm saying Miller says no such thing, despite the Times' insisting that it does.
Good point. I guess I don't understand how sawed-off shotguns can't be used by a militia while handguns can.
Ironically, the Court got it wrong in Miller, shotguns were actually used in the Military at the time. They just assumed that it wasn't a military weapon. No one raised the issue in the briefs, and there was no oral arguments in the case.
hey're saying that there is not individual right to own any guns.
I think you're putting the focus differently, but saying the same thing. They interpret Miller to say there is no individual right EXCEPT when it has "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
You interpret Miller to say there is an individual right EXCEPT for guns that don't have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
Personally, I believe the Amendment guarantees the right to individuals to have guns -- I just don't see how you're disagreeing with the Times except in tone.
I think you're putting the focus differently, but saying the same thing. They interpret Miller to say there is no individual right EXCEPT when it has "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
You interpret Miller to say there is an individual right EXCEPT for guns that don't have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
Personally, I believe the Amendment guarantees the right to individuals to have guns -- I just don't see how you're disagreeing with the Times except in tone.
Argh, this is frustrating....
I think you're putting the focus differently, but saying the same thing. They interpret Miller to say there is no individual right EXCEPT when it has "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
That's not what there saying. This is all about the individual rights vs. collective rights interpretation of the 2nd Amendment. The Times editorial board in the past has made it clear that they believe the the collective rights interpretation. They went nuts when the DOJ announced it was adopting the individual rights interpretation back in 2002.
There's no other way to justify DC's gun regulation unless you adopt the collective rights interpretation. For all practical purpose, it's impossible for an individual to own a firearm in DC. Handguns are completly banned and shotguns and rifles have to be dissembled or have a trigger lock. And you can't take off the lock in DC.
You interpret Miller to say there is an individual right EXCEPT for guns that don't have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
Yes, I do.
Personally, I believe the Amendment guarantees the right to individuals to have guns
It's nice to see we agree on something.
I think you're putting the focus differently, but saying the same thing. They interpret Miller to say there is no individual right EXCEPT when it has "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
That's not what there saying. This is all about the individual rights vs. collective rights interpretation of the 2nd Amendment. The Times editorial board in the past has made it clear that they believe the the collective rights interpretation. They went nuts when the DOJ announced it was adopting the individual rights interpretation back in 2002.
There's no other way to justify DC's gun regulation unless you adopt the collective rights interpretation. For all practical purpose, it's impossible for an individual to own a firearm in DC. Handguns are completly banned and shotguns and rifles have to be dissembled or have a trigger lock. And you can't take off the lock in DC.
You interpret Miller to say there is an individual right EXCEPT for guns that don't have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
Yes, I do.
Personally, I believe the Amendment guarantees the right to individuals to have guns
It's nice to see we agree on something.
I think you're putting the focus differently, but saying the same thing. They interpret Miller to say there is no individual right EXCEPT when it has "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
That's not what there saying. This is all about the individual rights vs. collective rights...
They said that word for word! Maybe elsewhere they say something else; I'm going by this article.
It's nice to see we agree on something.
Yes, it is. :-) So when are you going to come on my side of the aisle on an issue?
That's not what there saying. This is all about the individual rights vs. collective rights...
They said that word for word! Maybe elsewhere they say something else; I'm going by this article.
It's nice to see we agree on something.
Yes, it is. :-) So when are you going to come on my side of the aisle on an issue?
I think it's a bit ironic that this post was written the day after NYC has erupted in street shootings, where two NYPD Auxiliary cops were shot dead by illegal guns, and two days after an NYPD cop was wounded by one.
NJG - Ironic in that there was a shooting?
Or ironic that the legality of the guns is irrelevant to the criminals using them?
Or ironic that the legality of the guns is irrelevant to the criminals using them?
They said that word for word! Maybe elsewhere they say something else; I'm going by this article.
I'm gonna dig up the 2002 editorial- it will help explain things...
I think it's a bit ironic that this post was written the day after NYC has erupted in street shootings, where two NYPD Auxiliary cops were shot dead by illegal guns, and two days after an NYPD cop was wounded by one.
I don't see any irony.
I'm gonna dig up the 2002 editorial- it will help explain things...
I think it's a bit ironic that this post was written the day after NYC has erupted in street shootings, where two NYPD Auxiliary cops were shot dead by illegal guns, and two days after an NYPD cop was wounded by one.
I don't see any irony.
