Legalities

2nd amendment does give individuals the right to bear arms and makes it a civil right.

Who needs the supreme court when we have fred?

"It instead is proposing a balancing test: The greater a law infringes on a person’s right to own a gun, the more closely the court should look at the regulation.

Under that analysis, handgun bans—as the brief emphasizes a couple of times—may well be unconstitutional. Machine gun bans would not be."

From the example in the second paragraph above, it seems the test is less about how much the law infringes an individuals's right to ownership and more on the potential damage to human life caused by the gun owner of a handgun versus a machine gun. Both handguns and machine guns are guns therefore any law that infringes upon an individuals right to own it, infringes upon an individuals right to own it.

In other words, I wonder if your analysis of the SG's argument may be off center or maybe its just your example.

I have not read Clement's argument. It surely sounds like he's decided to lead the court with a process (a not uncommon process) to yield a "better" gun policy enshrined in the law of the land. Does the SJC mind being led by its nose? Does the SG have the same rules regarding ex parti conversations with SJC judges as other courts? In other words, can Clement meet with an SJC judge to discuss the case - for example on a duck hunting trip? I think the answer is no but I thought I'd ask.

Read these quotes from our founding fathers and then tell me that gun rights are not for individuals, or were never meant to be.

"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms."''

- Federal Gazette, June 18, 1789

As Jefferson puts it:

"No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government."

- Thomas Jefferson, of Virginia, Proposed Virginia Constitution, 1776

Can the intent of the Second Amendment be any clearer?

More quotes:

"Congress shall never disarm any citizen, unless such as are or have been in Actual Rebellion."

- 1 Debates on the Adoption of the Federal Constitution 326 (J. Elliot ed., 1836)

"The right declared [in the Second Amendment] was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation."

- Thomas Cooley, Principles of Constitutional Law 270 (1880)

"The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion."

- James Burgh

The Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation. . . (where) the governments are afraid to trust the people with arms."

- James Madison, of Virginia, The Federalist, No. 46

"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."

- Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power."

- Noah Webster, of Pennsylvania, An Examination of The Leading Principles of the Federal Constitution, Philadelphia, 1787

"If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel nor your arms. Crouch down and lick the hand that feeds you; and may posterity forget that ye were once our countrymen."

- Samuel Adams

"[A] string of amendments were presented to the lower House; these altogether respected personal liberty."

- William Grayson, of Virginia, Letter to Patrick Henry, June 12, 1789, referring to the introduction of what became the Bill of Rights

"the fifth and last auxiliary right of the subject . . . is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law . . . is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

- 1 William Blackstone, Commentaries on the Laws of England 143-144 (1765)

"Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

- Jefferson's "Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

"The Constitution of most of our states (and of the United States) asserts that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed."

- Thomas Jefferson

"Without either the first or second amendment, we would have no liberty; the first allows us to find out what's happening, the second allows us to do something about it! The second will be taken away first, followed by the first and then the rest of our freedoms."

- Andrew Ford

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty, teeth and keystone under independence. The church, the plow, the prairie wagon and citizens' firearms are indelibly related. From the hour the pilgrims landed to the present day, events, occurrences and tendencies prove that, to ensure peace, security and happiness, the rifle and pistol are equally indispensable. Every corner of this land knows firearms, and more than 99 and 99/100 percent of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms anywhere and everywhere restrains evil influence. They deserve a place of honor with all that's good. When firearms go, all goes. We need them every hour."

- George Washington's address to the second session of the First U.S. Congress.

Number one concern of the facist globalists.....It is hard to enforce your will on an armed populace.

The part about our governments secret wiretapping has been turned over the ATF (Alchol Tobacco & Firearms). They have used the database of phone records, telephone calls, ammunition & gun sales and E-mails to track all communications to and from Americas gun and arms dealers & shooting clubs. They now know the addresses of all the customers of these gun dealers and have even went so far as check even the communications to these customers, knowing that these like-minded people are possibly gun owners too. With this method, the ATF has narrowed the amount of houses that possibly contain the vast majority of guns in America from 110/Million households to approximately 34/Million. So if guns are determined to be illegal, the authorities will have less homes to invade and seize all the guns in America, sort of like what happened in New Orleans after Katrina.

At the time the Constitution was written, 'arms' were muzzle-loading muskets which fired a round every 20 seconds with an accurate range of about 100 yards (assuming the person wielding it was competent), knives and swords. It seems to me a pistol capable of firing off fifteen rounds in five seconds isn't exactly what they had in mind, let alone assault rifles with 45 round clips. The times have changed. The need to review how the second amendment applies to today is high. I'm not for repealing it, but I think if a particular region is so crime-ridden that a ban is needed, as long as it doesn't apply to the whole state (Washington DC isn't a state) or country, I don't have a problem with bans or other limitations on the ownership of firearms.

Did you know that guns have been used for self defense over 100,000 times since January 1st this year for self defense? If those people didn't have those guns to protect themselves, at least 10% (10,000) of those people would now be dead!

According to the part of the logic Steve espouses, the 1st Ammendment is now valid only for spoken or handwritten communications since modern electronics were not available back when these pre-existing rights were confirmed (not granted as is often assumed).

Besides we all know that all those bad guys fully complied with DC's gun ban, and that all those firearms they did have were all legally registered and licensed, right?

The main difference between the anti-gun folks and the pro-gun folks is that the antis are trying to force everyone to not own firearms for any reason, but the pro side is not trying to force everyone to have one. It's the right to choose that is in question here. Don't like them, don't have one. Just don't force others to have to rely on dialing "911" (also known as government sponsered dial a prayer).

I don't buy Jan's implied argument that adopting intermediate scrutiny will yield less litigation than adopting strict scrutiny. That's just ridiculous. Intermediate scrutiny it lends itself to manipulation, to judges' simply loading the dice in favor of whatever outcome they desire. Under intermediate scrutiny, every individual law must be examined afresh, because each law, with its own unique features, presents its own unique balancing. By contrast, strict scrutiny yields much more predictable results, and therefore requires less litigation to sort out.

I can imagine how the Framers would have reacted to having a pure balancing test for a right as important as this. We don't employ pure balancing and intermediate scrutiny for political speech, or for various other crucial rights that we admit are subject to reasonable limitations; why apply that standard to the right created to protect all those rights?

The Bush administration has once again betrayed the cause of constitutionalism. Nothing new here.

Faterider:"At the time the Constitution was written, 'arms' were muzzle-loading muskets which fired a round every 20 seconds with an accurate range of about 100 yards (assuming the person wielding it was competent), knives and swords. It seems to me a pistol capable of firing off fifteen rounds in five seconds isn't exactly what they had in mind, let alone assault rifles with 45 round clips. The times have changed." Indeed times have changed but basically the civilian population has had the equivalent firepower as the average soldier in the army...if not more. As it should be.
During the revolutionary war the troops had muzzle loading smooth bore weapons....there were many civilains with rifled weapons. During the civil war the average troop had a rifled musket but the general population had cartridge weapons and often bought them to send to family members under arms. Custer's last stand: Custer's men were using 45/70 trap door carbines (single shot rifles)...the indians...many had repeating rifles taken from raids with settlers. I have no problem being on an equal footing with people having similar weapons.

This is clearly a violation of the 2nd ammendment. The right to bear arms was designed so we could have guns to defend ourselves. If a city has a right to override a federal constitional right, then what's the purpose of having a constituition?

What I find disturbing is how the government blatently tramples the Constituition for the "greater good." Resonable gun control, I agree with. Outlawing firearms that are specifically designed for self-defense us unacceptable.

It's a sad day for America when the government, who swore to protect and defend the constituition are the very people who are waging a war against it.

Ms. Greenburg:

I want to add one caveat to your well-reasoned piece here. Machine guns are not banned, they are licensced. I think the question of whether non-discriminatory licenses are allowed under the 2d amendment is a question regardless of how the Court comes out on this case. After all I need a license to use the public square to hold a large protest (especially in D.C.)but my right to such protest or rally are not constitutionally infringed thereby.

For someone who allegedly graduated from the University of Chicago school of law and is a member of the New York bar, this is astonishingly poor analysis.

It's true that the administration's brief is significantly different than what would have emanated from Janet Reno's DOJ. It's true that the administration's brief "basically" recognizes an individual right to own firearms.

The problem is that the administration's brief leaves that right effectively toothless by advocating for intermediate, rather than strict, scrutiny vis-a-vis that right. The "balancing test" that the DOJ counsels essentially creates a presumption of validity with respect to gun control laws. Under the intermediate scrutiny standard, the government must merely show a state interest that outweighs the burden on individual liberties, and as we're all aware federal judges give tremendous deference to the "state interests" pulled out of the ether by legislators.

Contrast with the strict scrutiny standard: laws are presumptively invalid, and government must show that the law is narrowly tailored to achieve a compelling interest which cannot be reached through less-restrictive means.

The administration's brief is essentially an argument that the Second Amendment is a poor cousin of the First; that it protects an individual right, but only nominally, and that the scope of this right must be circumscribed so as to avoid casting doubt on the constitutionality of the vast edifice of federal gun control laws which are not before the Court.

Students considering a legal education at the University of Chicago school of law would be well advised to seek some kind of correspondence course.

In an excellent essay yesterday, Mike O’Shea put it this way:

"In other words, Mr. Heller will ask the Supreme Court to bring to the Second Amendment a fraction of the interpretive breadth that it has bestowed on the other provisions of the Bill of Rights:

• The First Amendment’s Establishment Clause appears merely to bar Congress from interfering with state religious establishments. However, it has been interpreted to confer a (fully incorporated) individual constitutional right to be free from religious establishment, complete with a custom-tailored exception to the taxpayer standing doctrine to encourage Establishment Clause challenges to legislative action.

• The First Amendment’s Free Speech Clause protects the “freedom of speech, [and] of the press.” It has been interpreted to protect the private possession of works of obscene pornography and at least some forms of virtual child pornography.

• The Fourth Amendment simply states that search warrants shall be subject to requirements of probable cause and particularity. It has been interpreted to presumptively require a warrant for any search or seizure, unless a specific exception applies.

• The Fifth Amendment: Miranda. Enough said."

If Mr. Heller loses, or the case is sent back for review, SCOTUS will have a very hard time explaining why it refuses to extend and enhance coverage of the Second Amendment the way it has for the other provisions of the Bill of Rights.

what part of "shall not be infringed" needs explained? The muskets employed at the time of writing were state of the art. assualt weapons. and as explained by Geo. Washington as quoted in the other comment section, are needed by the hour. With further explanation by Jefferson owner ship is a right and a duty.

I have read all the comments that are posted here on this blog and others. What I find interesting is that each and everyone of these posts basically say is you can have my gun when I cold and dead. I personally will not give up my gun to congress or any government agency when the Constitution gives me that right. I am not a criminal. I have the legal right to keep and bear arms, as long as I follow the rules that were set forth by my city and state. I don't like some of those rules. I still follow them. Hopefully I will be able to someday own a hand gun in the city I live in. Until then, I'll be owning the legal ones. The SCOTUS will do what it thinks is right. even tho their decision will effect every gun carrying person in the US. If by chance it is decided that the 2nd amendment is of no more use. then we, as a nation have become what this nation was first created for. A country ruled by tyrants. Ruling just like all the rest of the nations that are ancestors fled from. If and when that day comes, Which by God i hope doesn't. I will still keep my gun.

The Founding Fathers made it abundantly clear what the Second Amendment really means. Why do we need SCOTUS to muddy the waters even more? I'm sure glad I live in a "shall issue" state. The six years following the enactment of shall issue in 2001, crime went down when compared to the preceeding six years. All the predictions from the gun-ban crowd about "blood in the streets" fizzled. It was the biggest non-event I've ever seen. Over 160,000 ccw permits have been issued here in Michigan and less than 1% have been revoked for a crime or infraction. Even the cops say it's a good law.

I am reminded of my little old friend who lived by herself and at nite, kept her gun under her pillow for protection, loaded. She lived in not too good a neighborhood. When I went to visit, she sat and told me her story. She had no time to call the police and on that side of town, police help was slow, so she kept her gun. That nite, as she lay sleeping, she suddenly awoke with a man on top of her, she felt him jump on her. Now, this being a very smart and not afraid lady, quickly slipped her hand under her pillow shot at him and he ran off, she cussed him out and said next time, he'd be dead. Thank goodness, after this episode, the whole neighborhood must have known she had a gun because she was never ever bothered with this type of intruder again. Sad to say, my neighbor got so old, she finally had to go to a nursing home. I wander what happened to her gun? Maybe, she gave it away who knows or maybe she buried it, I quess the secret lies with her. Anyway, please let folks keep their guns for protection, Congress, some folks are going to keep them anyway, no matter what you folks say. They have no choice living alone at home. Many many gun owners are very responsible like my friend, but when push comes to shove, she said her life came first and at 80 years old, she's earned that right and her gun!