Unclear on the concept...

I've posted (or at least thought about posting; I can't be bothered to actually find the post) about a welcome mat with the words "Come back with a warrant" on it.  As someone who values my own rights and privacy, that would be my natural and instinctive response to a police officer making inquiries about a search of my home -- because consenting to a search when you are under suspicion is never a good idea.

But Patterico, who actually works as a prosecutor in California in addition to blogging, thinks such a welcome mat would constitute probable cause for a warrant in and of itself.

That's why I'm a Libertarian, not a Republican.  Asserting one's constitutional rights should never be grounds for suspicion.  If the government didn't have probable cause for a search before being denied permission, the fact that it was denied doesn't give any additional evidentiary weight in favor of a warrant. 

To disregard this is to render Constitutional rights meaningless.  If any refusal can be considered evidence for a compulsory search, then there is no right to refuse a search.

Wed Aug 23 05:21:39 CDT 2006 by TriggerFinger. Comments [Tweet]

Talk about a chilling effect...

Earlier, I posted about an organization that did an investigation of complaint policies for police departments in Florida.  They sent in an undercover investigator who requested a complaint form.  All the investigator wants is a form -- not to "talk to" an officer about the complaint or otherwise be subjected to pressure not to file one.  He just wants the form.

Responses were mixed.  None of the officers he interacted with were willing to just let him leave with a form.  Some threatened the investigator with arrest.

Following the release of a short video documenting what they had done, the same organization tried it in Independence, Missouri.  Their investigator was arrested, violently enough to need medical care afterwards, and charges are being filed against him.  What those charges are is not specified, but watching this video should be enough to open the eyes of anyone who is still under the delusion that police officers are there to "protect and serve" the people. 

With some exceptions, they are there to keep us in line.

Hat tip to The Agitator.

Wed Aug 23 04:27:19 CDT 2006 by TriggerFinger. Comments [Tweet]

Courtesy of Judicial Watch...

... we have documents from the Clinton administration describing their strategy for attacking the 2nd Amendment and firearms in general.  In case you haven't noticed, the rash of gun liability lawsuits we've seen are the outcome of those plans.  So was the Smith & Wesson "settlement".  The Clintons were unable to implement their gun control fantasies legislatively, so they turned to other means.  This is the paper trail.

The Geek with a .45 has a take on the documents, as does Smoke on the Water.

I've read through the documents posted so far, and every single one of the points mentioned has later come up in various lawsuits. 

Mon Aug 21 08:39:13 CDT 2006 by TriggerFinger. Comments [Tweet]

Weird, but amusing.

I admit that it will probably be mostly programmers that get the laugh from this Algorithm March video.  But it has to do with coordinated action.  Notice how all the actors, even the ninjas, are performing the same sequence of steps.

Still, whoever dreamed up this particular video has a very strange mind.

Sat Aug 19 21:37:24 CDT 2006 by TriggerFinger. Comments [Tweet]

Boot the BATFE

The JPFO are asking for donations to help them boot the BATFE

Wed Aug 16 04:09:42 CDT 2006 by TriggerFinger. Comments [Tweet]

The UN gun control summit

Wondered what the fuss was all about?  Find out here.

It should come as no surprise that an association of dictators, kleptocracies, monarchies, and communist "republics" tends to dislike the idea of ordinary people with firearms.  What surprises me is the way that so very many democracies seem willing to go along with them.

Wed Aug 16 03:49:17 CDT 2006 by TriggerFinger. Comments [Tweet]

The thing about the two major parties...

... is that they deal with Libertarians in the same way: they don't want our policies, just our votes.  The Hammer of Truth brings it home.

Wed Aug 16 03:10:29 CDT 2006 by TriggerFinger. Comments [Tweet]

From the mouth of the Enemy...

American farmers were the standing militia of the day. There were no police or National Guard, and only the beginnings of an army. These were the minutemen - brave, tough men and women ready to fight at a moment's notice.

The historical context of this part of the Bill of Rights - the recurring nightmare of Redcoat soldiers - shows that every American family needed a musket standing against the wall, ready to load and ready to kill.

Not so today. The premise of the Second Amendment, the need for minutemen, no longer exists. In a free society we must rely on the police. We have more important rights to fight for than the right to bear arms.

... comes a certain refreshing honesty.  When the 2nd Amendment is considered fairly, even its opponents must recognize that it protects an absolute right for ordinary Americans to own firearms.  They deny this, and write whole treatises on the fiction of a "collective right", because their policies are wholly foreclosed by the 2nd Amendment.  No form of gun control is permissable under the correct reading... and they have so much invested in the policies of gun control that they are willing to invent elaborate and transparent fictions in order to allow for them.

Until very recently, the courts and the legislatures were willing to go along with this fiction.  That seems to be changing, and none to soon.

What the forces of gun control do not understand is that the rights we have today are ours because our ancestors fought and died for them -- fought and died with arms, in a revolution against the lawful authority of their time.  The Founders gave us the 2nd Amendment because they wanted to ensure we could protect the other rights they had bought with blood.  To say now that we should rely upon the police would be to tell the Founders that the Redcoats would keep them safe. 

So when someone asks us to give up the 2nd Amendment in favor of protecting other, "more important" rights, ask them how those other rights will be protected?  As Mao once said, political power flows from the barrel of a gun.  The disarmed cannot even protect their lives, much less their rights.

Wed Aug 16 03:08:40 CDT 2006 by TriggerFinger. Comments [Tweet]

Open government...

There are so many different ways that our government could modernize itself in order to better use technology to communicate with the people.  The problem is, our "leaders" usually see communicating with the people to be a one-way sort of thing: they talk, we listen.  That's why we need ideas like this one to shake things up a little.  It's impossible for politicians to keep track of this stuff even with dedicated full-time staffers.  How can ordinary citizens be expected to form an opinion of how their representatives are managing the nation's budget without the tools to do so in a reasonable amount of time and effort?  

Wed Aug 16 01:42:54 CDT 2006 by TriggerFinger. Comments [Tweet]

Victory in San Francisco

Some time back, San Francisco passed a ban on firearms.  The NRA and the Second Amendment Foundation challenged the law as contrary to a California preemption statute.  Word is now coming in that the law has been struck down by the court on those grounds.  This is fairly old news, too.  What can I say, I've been busy on lawsuits that actually deal with the 2nd Amendment...

Wed Aug 16 01:18:03 CDT 2006 by TriggerFinger. Comments [Tweet]

Castle Doctrine in Texas...

It seems one of our state senators wants to introduce a Castle Doctrine bill.  This is pretty old news, and it may well have already passed, but what I would like to know (and don't have time to research myself) is what the specific changes are.  Does anyone have the text of the proposed legislation handy?

Hat tip to Blogonomicon.

Wed Aug 16 01:09:23 CDT 2006 by TriggerFinger. Comments [Tweet]

Appellant's brief in Parker v DC

Jurisdictional Statement
  1. Statement of Issues
  2. Statement of the Case
  3. Statement of Facts
  4. Summary of Argument
    1. FOP I
    2. FOP II
  5. Argument
    1. Standing
      1. Failure to assert until prompted
      2. Specific and Personal Threats of Prosecution
    2. 2nd Amendment
      1. The Supreme Court has repeatedly suggested an individual right
        1. Printz v United States
        2. Lewis v United States
      2. Implicit Adoption within this Circuit
      3. The Clear Intent of the Framers
      4. Textual Analysis
        1. The Preamble does not limit the Right
        2. The Militia is synonymous with The People
        3. Consistent usage throughout the Bill of Rights
        4. The Right to Privately Possess and Carry Ordinary Firearms
        5. The District Court Failed To Address Plaintiffs' Arguments
    3. The Possession of Ordinary Handguns is Protected
    4. The Right to Keep and Bear functional Arms
  6. Conclusion
  7. Footnotes

Wed Aug 16 00:52:49 CDT 2006 by TriggerFinger. Comments [Tweet]

The Bloomberg cases...

Of Arms and the Law writes that the BATFE is looking into the "stings" that form the basis of this lawsuit.  This newspaper article has more details on exactly how those stings work; it seems they sent two "investigators", one a retired cop, trying to buy a gun without the right paperwork, then sent them back the next day with the right paperwork but two numbers transposed when the dealer refused to sell, and then tried to talk the dealer into completing the sale with the wrong numbers.  The dealer called into the office that issued the paperwork and got permission to update the numbers and sell the gun.  End result: no crime committed, but Bloomberg gets a very public raid.

Later, of course, the dealer gets a very private "Here are all your guns back, sorry," and a warning of "heightened scrutiny".  Typical.  This is about intimidation more than anything else.

Tue Aug 15 01:02:49 CDT 2006 by TriggerFinger. Comments [Tweet]


The District Court correctly concluded that Defendants? belated standing defense lacks merit. In addition to the other threats, Defendants referred to the intent to prosecute Plaintiffs as ?fact.? It is pointless to argue the finer nuances of what those various statements intended to convey. If these statements did not communicate the sort of direct and specific threats of prosecution that, under Seegars, qualify as a ?polar extreme? where ?clarity prevails,? they are certainly threatening enough. To deny as much is to deny the very possibility of preenforcement challenges to unconstitutional statutes.
Here the difference between Parker and Seegars is clear.  The Parker counsel put a lot of effort into establishing standing, and were able to benefit from a lot of mistakes the District's counsel and defendents made.  That makes standing in this case almost a given for an honest judge, absent menuvering about whether or not the plaintiffs are actually militia members or not. 
Yet the District Court erred, as a matter of law, in upholding the regulations.  Logic, history, the Constitutional text?s plain meaning, and the weight of Supreme Court and circuit precedent all establish that the Second Amendment secures fundamental individual rights. At the absolute minimum, such rights guarantee a law-abiding citizen?s ability to possess a functional firearm, including a basic handgun, within the home.
That right there is a large part of why this case is such a good one.  The District's gun laws are so draconian that they are vulnerable to a direct challenge without needing to weight issues of public safety against Constitutional interests.  It is a lot easier to fudge the law when you start assigning weights to policies and trying to handwaving about compelling state interests than when measuring an absolute Constitutional right against an absolute prohibition.  In a way, it's shocking the laws lasted as long as they have.  It shows how far we have fallen, in some ways.
The opinion below should be reversed, with instructions to enter judgment for Plaintiffs on their motion for summary judgment.
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Mon Aug 14 02:25:18 CDT 2006 by TriggerFinger. Comments [Tweet]



Plaintiffs submit that to the extent the Second Amendment guarantees the right to keep and bear arms, the right must extend to functional guns within their own homes. Just as the First Amendment guarantees more than the possession of blank newsprint and ink, the Second Amendment guarantees more than a right to possess metal and springs. And just as the First Amendment would not sanction an act mandating the capping of pens at all times, neither does the Second Amendment tolerate laws requiring, without meaningful exception, the disabling, locking, or disassembly of all guns. The right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary.

D.C. Code 7-2507.02 requires that all guns must be kept unloaded and either disassembled or bound by trigger lock at all times unless they are located in one?s business or while a person is engaged in recreational shooting. Yet the District?s self-defense law extends with equal force to a person?s home. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991) (?imminent danger? would have supported deadly force in self-defense inside home); Cooper v.United States, 512 A.2d 1002 (D.C. 1986) (assuming no duty to retreat when attacked inside home by strangers, no ?castle doctrine? against co-occupants). Clearly, a person?s interest in defending against a home invasion far exceeds the interest in securing a business or recreation. ?Surely nothing could be more fundamental to the ?concept of ordered liberty? than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions.? Quilici, 695 F.2d at 278 (Coffey, J., dissenting) (emphasis original).15

Plaintiffs would not object to properly tailored laws requiring the safe storage of firearms, provided the law permits the lawful use of the firearm within the home. But even the federal law barring felons from possessing firearms is understood to carry a justification exception. United States v. Gomez, supra, 92 F.3d 770; see also United States v. Mason, 233 F.3d 619, 622-23 (D.C. Cir. 2000). Certainly Plaintiffs have at least an equal interest in their fundamental constitutional rights as felons have in a necessity or justification defense.
Safe storage laws are generally not objectionable on principle, even within the bounds of the 2nd Amendment, assuming they are crafted narrowly.  The objections arise from the impossibility of enforcement and the use of such laws as a vehicle to prohibit self-defense use (as is happening here). 

The "necessity or justification" defense covers a few situations where felons have possessed firearms in the course of defending their lives from a violent attack.  While going out to deliberately obtain a gun would not be a defense, using one that was available on the scene would be acceptable.  Taking a gun from one of the attackers is one example.

The DC laws in question do not contain self-defense exceptions in the text, and they do not contain self-defense exceptions in the case law either.  In one of the earlier briefs in this case specific instances of individuals prosecuted for using a firearm in self-defense were cited.
Thus, while Section 7-2507.02 addresses an arguably appropriate area of regulation, it is unconstitutionally overbroad in its reach. The overbreadth is especially troubling considering Defendants? aggressive prosecution of gun owners in cases of admittedly lawful self-defense. Chief Judge Ginsburg suggested that the risk of prosecution in such cases is ?speculative,? Seegars v. Gonzales , 413 F.3d 1, 2 (D.C. Cir. 2005) (Ginsburg, C.J, concurring), while Judge Williams suggested the risk was real. Seegars, 413 F.3d at 2-3 (Williams, J.). The Court ordered the instant Plaintiffs to file additional briefs in light of the outcome of the Seegars rehearing petition. As Plaintiffs demonstrated with reference to specific cases, Judge Williams?s intuition is sadly correct: victims of home invasions who defend themselves with firearms are prosecuted for gun violations, even where the government does not question the legitimacy of using the firearm against the intruder. (Pl. Second Mot. To Issue Br. Schedule & Set Arg. on Merits, pp. 13-15).

The right to possess a non-functioning firearm within one?s home is no right at all. Defendants must be enjoined from enforcing D.C. Code 7-2507.02 in a manner inconsistent with Plaintiffs? Second Amendment rights.
And there you have it.  The District's gun laws permitting possession of a long gun in the home if it is rendered inoperable are no more acceptable than one allowing possession of a printing press so long as it never printed anything.  Possession is meaningless without the right to use the object as intended.

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Mon Aug 14 02:12:46 CDT 2006 by TriggerFinger. Comments [Tweet]



In theory, some sub-set of handguns might be designed that would fail the Miller test and be subject to prohibition. But in barring Plaintiffs from possessing all handguns, Defendants impermissibly infringe upon the constitutional right to keep and bear weapons in common use that are plainly suitable for lawful behavior. If any outright weapons prohibition fails the Miller test, it is D.C. Code 7-2502.02(a)(4), barring Plaintiffs from possessing ordinary handguns within their homes, and its close cousin, D.C. Code 22-4504, barring the unlicensed movement of handguns within a home.
One obvious candidate for a handgun that fails the Miller test is a single-shot .22 caliber target pistol.  Since Olympic-class shooters are rarely found holding up the local convenience store, this type of gun is rarely considered for bans. 
No court has seriously questioned whether a handgun, generally, is a Miller protected arm ?of the kind in common use? by the public, being either ?ordinary military equipment or [such] that its use could contribute to the common defense.? Miller, 307 U.S. at 178. Nor has any court applied Miller in the manner suggested by FOP II, yet concluded that an outright prohibition of handguns is compatible with an effective militia. FOP II, 173 F.3d at 906. Such a prohibition would quite clearly ?materially impair? the efforts of civilians otherwise capable of bearing arms from maintaining order.
Although it is not mentioned here, Miller dealt with a sawed-off shotgun and made no ruling on whether or not the firearm could contribute to the common defense.  Handguns are obviously part of the common military equipment, being standard issue for some members of the military.  They are also useful for maintaining public order generally, as evidenced by their use by police.

The Miller case failed because Miller's counsel did not introduce any evidence showing the weapon in question was useful for a militia.  Keep an eye out below for how the Parker attorneys avoid that same mistake.
To the extent such questions were raised in Emerson, the Fifth Circuit had no difficulty disposing of them in a footnote. Concerned primarily with the question of whether the Second Amendment conferred an individual or ?collective? right, the Miller analysis of the handgun in Emerson merited only the following observation:

There is no contention here that the Beretta pistol possessed is a kind or type of weapon that is neither ?any part of the ordinary military equipment? nor such ?that its use could contribute to the common defense? within thelanguage of Miller (nor that it is otherwise within the kind or type of weapon embraced in the government's second Miller argument, e.g., ?weapons which can have no legitimate use in the hands of private individuals? so as to be categorically excluded from the scope of the Second Amendment under Miller's holding).

Emerson, 270 F.3d at 227 n.22.

Likewise, in adopting the collective rights theory ?without further analysis or citation of authority,? Emerson, 270 F.3d at 224, the First Circuit conceded that a .38 caliber revolver would not be proscribed under the Miller test, as such a handgun ?may be capable of military use . . . at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber.? Cases v. United States, 131 F.2d at 922-23;13 see also Quilici v. Village of Morton Grove, 695 F.2d 261, 266 (7th Cir. 1982) (?Handguns are undisputedly the type of arms commonly used for recreation or the protection of person and property?) (internal citations omitted).14
Remember the Miller test: capable of contributing to the common defense, in common use at the time, has a legitimate use, and part of the common military equipment.
The District Court recognized the social utility of handguns. Delahanty v. Hinckley, 686 F. Supp. 920 (D.D.C. 1986), question certified, 845 F.2d 1069 (D.C. Cir. 1988), certified question answered, 564 A.2d 758 (D.C. 1989), aff?d, 900 F.2d 368 (D.C. Cir. 1990). In Delahanty, plaintiff police officer, injured in the assassination attempt on President Reagan, sued the manufacturer of Hinckley?s handgun on a products liability theory, reasoning that the gun?s inexpensive nature made it particularly attractive for criminal misuse.
I sometimes wonder if the Hinckley case was the one that kicked off the whole product-liability angle on gun control.  I should do some research on it and see who was behind it sometime.
The District Court rejected the argument as a matter of tort law, since the gun functioned properly. However, the District Court also observed that ?the theory raises concerns which reach constitutional dimensions.? Delahanty, 686 F. Supp. at 928. Apart from the irrational result of privileging plaintiffs shot by cheaper weapons, the Court recognized that many law-abiding citizens ?must resort to the purchase of a cheap handgun? for legitimate self-defense. Id. The District Court was especially troubled by the implication of banning cheaper handguns as ?ghetto guns,? which would suggest acceptance of an unlawful disparate impact upon the rights of low-income and minority individuals. Delahanty, 686 F. Supp. at 929.
You can't ban cheap handguns, since you would be violating the 2nd Amendment rights of the poor.  This would be an excellent follow-up argument to use against the ban on post-1986 machineguns; by raising the price of permitted weapons to insane levels, only the rich can fully exercise their 2nd Amendment rights.  Of course, it would probably be easier to attack the ban on the basis of greatest congruence to military weapons.
Defendants cannot carry their burden of establishing that a generic handgun is not in common use, has no legitimate use in the hands of individuals, cannot be used to provide for the common defense, and is not ordinary military equipment. It is within judicial notice that Defendants provide their police officers handguns; clearly, Defendants recognize that handguns are useful for lawful self-defense and maintaining public order. Indeed, Defendants see to it that plaintiff Heller is allowed a handgun, at least to maintain order within the confines of his workplace.
There it is: we do not need to rely on judicial notice for whether a handgun is useful for maintaining public order and contributing to the common defense: one of the plaintiffs is a security guard and is allowed to possess and use a handgun for that purpose!
Handguns plainly pass the Miller test as weapons protected by the Second Amendment, the rights to which ?shall not be infringed.? U.S. Const. amend. II. D.C. Code 7-2502.02(a)(4), barring Plaintiffs from obtaining handguns by forbidding the registration of such weapons, violates Plaintiffs? rights under the Second Amendment. It necessarily follows that D.C. Code 22-4504 also violates the Second Amendment, at least to the extent it requires an unavailable license to move handguns within one?s home.  That restriction frustrates the keeping and bearing of constitutionally protected arms, equivalent to imposing an independent ban on such weapons. While Plaintiffs do not here challenge the application of Section 22-4504 to public areas, it is notable that even obscene materials not otherwise protected by the First Amendment may be viewed in the privacy of one?s home. Stanley v. Georgia, 394 U.S. 557 (1969). The exercise of Second Amendment rights within the home is entitled to no less protection. ?The government bears a heavy burden when attempting to justify an expansion, as in gun control, of the ?limited circumstances? in which intrusion into the privacy of  a home is permitted.? Quilici, 695 F.2d at 280 (Coffey, J., dissenting).

Defendants? handgun ban also fails the D.C. Circuit?s alternative Miller test set forth in FOP II, 173 F.3d at 906, in that it materially impairs the effectiveness of the militia. Shelly Parker and Tracey Ambeau require handguns to act in concert with others for the common defense. JA 21, 29. Dick Heller is more effective with a handgun than he might be with another type of firearm, JA 23; why else would Defendants supply him (and others) with a handgun for his policing duties? JA 22. Tom Palmer and George Lyon would also be more effective militia members had they the option of using handguns. JA 25, 31.  None of this should be surprising; handguns are extremely practical for many lawful defensive uses.
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Sun Aug 13 22:50:49 CDT 2006 by TriggerFinger. Comments [Tweet]

Gilmore v Gonzales...

Papers, Please has the scoop on Gilmore v Gonzales.  Gilmore is one of the founders of Sun Microsystems, who has used his fortune to do good deeds (such as his involvement with the Electronic Frontier Foundation) and fight crime.  Gonzales is the Attorney General of the United States, and his job is to fight crime.  Unfortunately, they are both working on slightly different definitions of what a crime is.

Specifically, Gonzales thinks that it's a crime to allow someone to board an airplane without identifying themselves with some form of government-issued identification.  Gilmore thinks forcing someone to present government-issued identification to travel is a crime.  There's an obvious conflict here, and the Supreme Court may be the one to decide who's right.   A petition for certiorari [PDF] has been filed.

The last case we saw addressing this issue was Hiibel.  That didn't turn out so well -- the Supreme Court upheld the conviction for failure to identify to a police officer.  Hopefully we'll get a better result this time, but frankly, I have slim hopes for a major change so soon after the earlier ruling.

Sun Aug 13 22:15:47 CDT 2006 by TriggerFinger. Comments [Tweet]

The District Court Failed To Address Plaintiffs? Arguments.

The District Court Failed To Address Plaintiffs? Arguments.

The District Court conceded that ?plaintiffs? arguments [concerning the meaning of Miller] are not without merit.? JA 52. Yet without engaging their substance, it dismissed Plaintiffs? arguments because if the Supreme Court truly thought that Miller was being read to stand for a proposition much greater than the Court intended, it surely would have taken one of the opportunities it has had in the last sixty five years to grant certiorari and correct the misunderstanding. This Court is thus reluctant to accept plaintiffs? reading of Miller.
JA 52.

Respectfully, parties are entitled to have their arguments considered, even if the Supreme Court has not taken an opportunity to endorse their positions. Nor may denial of certiorari be construed as an endorsement of the lower court?s opinion.

Indeed, Miller carries more precedential weight than any number of certiorari denials. Notably the District Court did not extend its logic to the denial of certiorari in Emerson, a missed opportunity to reject Plaintiffs? claims.11 Emerson v. United States, 536 U.S. 907 (2002).
This is a brilliant piece of lawyering between the Emerson judges and the Parker counsel.  (Not that this was planned, but I remember commenting on what the Emerson decision set up when the appeals court decision was published, and the Parker counsel has made brilliant use of it).

Consider: The Emerson decision in the appeals court upheld the Lautenberg restrictions on firearms possession as having the minimal amount of due process required to validate the infringement of a 2nd Amendment right to possess arms.  In the course of deciding this, they reached the merits of the 2nd Amendment claims and found in favor of an individual right with extensive and detailed analysis.

This means the government won't be inclined to appeal; after all, they won the case and got their conviction.  The plaintiff appealed, but the Supreme Court was free to deny certiorari.  Doing so leaves the original decision in place.  The original decision is a 5th-circuit appellate-level ruling (en banc if I recall correctly) that has extensive analysis of the 2nd Amendment claim and finds for an individual right, all of which was necessary in order to examine and eventually reject Emerson's claim.  Because of this, the entire 5th Circuit now has an individual right precedent on the books that lower courts are bound by.

That sets up a long-term circuit split (with the 9th Circuit, which has ruled for a collective right in a number of cases) that can only be resolved by the Supreme Court.  In the meantime, it gives us a pro-individual-right precedent to cite in other cases like this one.  One of those followup cases will presumably be accepted by the Supreme Court eventually, and that case will likely be a well-crafted civil rights case like Parker rather than a criminal defense (with apologies to Emerson, who most likely does not deserve what he got).

In addition, the way Emerson was decided allowed for a delay in resolving the 2nd Amendment issue at the Supreme Court.  When the decision was handed down, remember, we didn't have either Roberts or Alito on the court.  Those two judges are presumed to be good votes on the gun issue.

And here we have the Parker attorneys making use of that setup.  They are citing Emerson extensively as precedent (admittedly out of circuit precedent, but still valid in the absence of conflicting in-circuit precedent) in the context of a cleanly-crafted case before a circuit that has had 5 years of a (relatively) conservative President and Senate to appoint judges.
Having rejected Plaintiffs? admittedly meritorious arguments regarding Miller ? principally because the Supreme Court had not reviewed collective rights interpretations of that case ? the District Court did little more than cite those interpretations as a basis for its holding. It did not analyze Miller itself, or those cases upon which it relied, most of which, in turn, contain virtually no discussion of Miller either.12

Similarly, the District Court approvingly cited Lewis, supra, 445 U.S. at 65 n.8, for the proposition ?that a statute that criminalizes possession of a firearm by a convicted felon "?[did not] trench on any constitutionally protected liberties.?" JA 51-52. Lewis does not elaborate, but Plaintiffs would not quarrel with the notions that felons may be disarmed without impairing the Militia?s effectiveness, and that felons, by their criminal activities, forfeit any number of constitutional rights available to the law-abiding.

As for Emerson, the court below refused to engage the Fifth Circuit?s reasoning, preferring to side with the concurring opinion?s assertion that the majority opinion is largely dicta. Yet the District Court?s opinion in Emerson held that the Second Amendment secures an individual right to keep and bear arms and dismissed the government?s indictment on those grounds. Emerson v. United States, 46 F. Supp. 2d 598 (N.D. Tex. 1999), rev?d, 270 F.3d 203 (5th Cir. 2001).

The Fifth Circuit, in reversing that outcome, necessarily reviewed the District Court?s individual rights analysis. See Emerson, 270 F.3d at 265 n. 66.
Dicta is a term of art for the sections of a legal opinion not necessary to decide the case; those sections don't have value as precedent.  It's sometimes difficult to distinguish dicta from the important parts of a decision, especially since most judges try to avoid writing it.  The district court refused to consider Emerson as precedent, saying that the individual rights analysis is dicta; yet both 5th circuit courts in Emerson found for an individual right.  It cannot be dicta in the lower court because that court overturned the Lautenberg law; the appellate court opinion on an individual right cannot be dicta because it overturned the lower court's decision after reviewing the individual right finding. 

Even if the District Court wishes to argue that the individual rights findings in Emerson at the appellate court were dicta because they did not overturn the lower court's findings, that leaves the lower court's findings in place -- and they are equally strong for the individual rights perspective.  There's no way for the collective-rights view to effectively neutralize Emerson's individual rights precedent when used to support a carefully crafted civil rights case.  The whole thing is a brilliant piece of legal strategy.

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Sun Aug 13 16:37:02 CDT 2006 by TriggerFinger. Comments [Tweet]

The Right to Privately Possess and Carry Ordinary Firearms

The Right To Keep And Bear Arms? Is The Right To Privately Possess And Carry Ordinary Firearms.

As discussed above, Miller set forth a test for determining which ?arms? are protected by the Second Amendment: ?ordinary military equipment? that could ?contribute to the common defense,? Miller, 307 U.S. at 178, and is of a type in
common use that people may be expected to own. Miller, 307 U.S. at 179. That test cannot sensibly mean that the Second Amendment merely guarantees individuals sent to battle the right to carry a gun. Such an interpretation would

either (1) contemplate actual military service . . . other than that which is ordered or directed by the government; or (2) construe the constitutional provision as saying no more than that the citizen has a right to do that which the state orders him to do and thus neither grants the citizen any right nor in any way restricts the power of the state.

Emerson, 270 F.3d at 232 n.30 (emphasis original). One may also imagine instances where military personnel are ordered to refrain from having weapons; surely the Second Amendment would not guarantee a right to carry arms in derogation of contrary orders.

The questions thus naturally arise ? what are the meanings of ?keep? and ?bear?? ?Bearing? simply means carrying, without any necessary military connotation:

Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment (?keep and bear Arms?) (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.? Emerson, 270 F.3d at 232 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)).

Neither does the verb ?keep? necessarily carry a military connotation. ?Though the terms are related, the distinct right to ?keep? arms is individual and a helpful antecedent to bearing arms in a militia.? Nordyke, 319 F.3d at 1195 (Gould, J., specially concurring). ?Keep? as used in the Second Amendment can relate only to an individual right. Emerson, 270 F.3d at 232 (considering ?keep? separately from ?bear?). After all, if citizens cannot ?keep? guns, they cannot be ?expected to appear bearing arms supplied by themselves and of the kind in common use at the time? if called for duty. Miller, 307 U.S. at 179. If a gun is kept, but not borne upon the person, the gun is possessed in the sense that it is the subject of a person?s dominion and control. Ordinarily, an object would be ?kept? in the home or on possessed land.
There's not much for me to add, here.  We're establishing that the right protects the right to own and carry ordinary firearms. In that process the two terms need to be understood separately.  To "bear arms" is sometimes considered a term of art referring to military service, but evidence from the time indicates that that usage was not restrictive; it was just as possible to bear arms on a leisurely stroll through the countryside as it was to bear arms in a militia.  (That example is from one of Jefferson's writings).  And, of course, to "keep" arms never had a military connotation and means simply to possess or own them. 

It should be noted that "keeping" arms is mostly what this case is about.  The District's laws against bearing arms are equally draconian and in fact sufficient to make carrying a functional firearm between two rooms within your own home a violation.  This case, however, is focused on establishing the right to keep and bear arms within ones own home rather than outside of it.  The right to carry arms in public will have to be addressed in a later case, unless we get lucky and the decision includes it voluntarily.

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Sun Aug 13 15:14:53 CDT 2006 by TriggerFinger. Comments [Tweet]

Consistent usage throughout the Bill of Rights

?The People? Protected By The Second Amendment Are The Same People Protected Throughout The Bill Of Rights.

This point was clearly settled by the Supreme Court in United States v. Verdugo-Urquidez, supra, 494 U.S. 259. The Framers knew how to distinguish between the concepts of ?people? and ?states,? doing so explicitly throughout the original Constitution and Bill of Rights. See, e.g. U.S. Const. amend. X (?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.?) (emphasis added). Indeed, the very phrase used to describe the Second Amendment?s subject ? ?the right of the people? ? also provides the subject of the First and Fourth Amendments. See also U.S. Const. amend IX (?rights . . . retained by the people.?)

Moreover, as the Fifth Circuit noted, construing the Second Amendment as a right of the states to arm a militia ?would be in substantial tension with Art. I, sec. 8, cl. 16 (Congress has the power ?To provide for ... arming ... the militia. . .?).? Emerson, 270 F.3d at 227. And interpreting the Second Amendment as if it secured an individual right to keep and bear arms, but only while serving in the military, would be equally unpersuasive. Presumably if the states would conscript people into military units, members of such units would be armed. After all, ?No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.? U.S. Const. art. I, sec. 10, cl. 3. If congressional consent or emergency conditions allowed a state to raise an army or navy, there would be no need to guarantee the rights of soldiers and sailors to keep weapons.
There's not much to comment on here.  The people are the people.  The usage is consistent. 

The usual argument from collectivists is that the States were prohibited from maintaining a standing army without consent of Congress, and yet permitted to form one in emergencies, but without a right to keep and bear arms, where would they get the arms on short notice to arm their army?  Under this theory the 2nd Amendment would protect the right of the states to maintain an armory.

That theory is lacking, however, in several areas.  It does not account for the right to bear arms; such a phrasing implies individuality.  States are not said to bear arms; they would field an army.  Bearing arms is an activity performed by a person, not a state.  And, of course, if the Framers had meant to say state they would have said state. 

If the people's right to arms is healthy and respected, there is no need for the State to maintain its' own armory; for the people will come when called to service with their own arms.  An armory would be necessary for a State seeking to maintain a standing army, of course, but the Constitution is strongly prejudiced against such a creature.  We maintain one today only after bitter lessons learned from two World Wars.

And if the 2nd Amendment is to be read to protect a right of the States to maintain armies, it would be in direct conflict with the sections of the Constitution that requires the States to have the permission of Congress (or an emergency, such as an invasion) to do so.  Several of the Founders are on record as stating that the Bill of Rights does not conflict with any of the powers stated earlier in the document; that is, the federal government was not granted any power to regulate speech, or the press, or to institute a state religion, or to restrict the arms available to the people.  But if the 2nd protects a State's right to form an army, it would be in conflict with the powers already granted to the federal government.  Since the Framers don't think it was, it must mean something else.

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Sun Aug 13 14:28:50 CDT 2006 by TriggerFinger. Comments [Tweet]

The Militia is synonymous with the People

To The Extent The Preamble Serves As An Operative Guide, It Does Not Limit The Rights Of The People, As ?Militia? Is Practically Synonymous With ?The People.?

Miller viewed the preamble as an interpretive guide, a common practice of statutory construction used in determining legislative intent. Yet even to this extent, the preamble cannot substantially limit the rights of the operative clause.

?Ordinarily courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in the common parlance of the times in which the Constitution was written.? United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 539 (1944). Consistent with this practice, Miller correctly gave the word ?militia? its traditional definition as comprising all men capable of bearing arms, and reasoned that the Second Amendment protects the type of arms that such people ? private individuals ? could be expected to own and use for the common defense if called upon to do so.

Considering the persistent mischaracterization of the opinion, it bears repeating that Miller concluded ?the militia? are not ?troops? or ?standing armies,? but ?civilians primarily . . . all males physically capable of acting in concert for the common defense . . . expected to appear bearing arms supplied by themselves and of the kind in common use at the time? if called for duty. Miller, 307 U.S. at 179.
If you are a male of military age and do not own an AR-15 type rifle, the Founders would be very wroth with you for slacking your civic duties.  In some communities at the time the Constitution was written, you would even have been fined.  In that context, how could the 2nd Amendment not protect individual, private ownership of arms?
Miller?s ?militia? definition is consistent with the Fifth Amendment?s guarantee that individuals may only be charged with serious crimes ?by presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.? U.S. Const. amend. V. The Militia is obviously a concept apart from the army or navy, and its members are entitled to the protection of the grand jury when not actively defending against invasion or insurrection. The Supreme Court has recognized that the militia and the armed forces are different concepts. ?Congress was authorized both to raise and support a national army and also to organize ?the Militia.?? Perpich v. Dept. of Defense, 496 U.S. 334, 340 (1990). Congress defines ?the militia of the United States? as comprising all able-bodied males between the ages of 17 and 45, as well as male members of the National Guard up to age 64, who are or intend to become citizens; as well as female members of the National Guard. 10 U.S.C. 311. Excluded from this definition of Militia, among others, are ?members of the armed forces, except members who are not on active duty.? 10 U.S.C. 312(a)(3).
If you read the above and your jaw is still on the floor, I will reiterate.  By current law, every able-bodied male citizen of legal age is or at some point was a member of the militia.
Expanding on 10 U.S.C. 311, Plaintiffs urge only one modification to Miller?s definition of ?Militia.? In the years following Miller, the Supreme Court held that the Fifth Amendment?s Due Process Clause guarantees the equal protection of the law vis-a-vis the federal government on par with the Equal Protection Clause of the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954). As women are now considered capable of acting in concert for the common defense, and equal heirs to the natural rights preserved in the Bill of Rights, Miller?s concept of the militia should be read in light of the modern understanding of the Fifth Amendment to include female as well as male civilians.  Allowing men, but not women, the right to keep and bear arms would not survive the heightened review to which gender-based distinctions are subjected. See, e.g. United States v. Virginia, 518 U.S. 515 (1996) (women entitled equal access to military education).
This should be non-controversial, since gender distinctions are definitely viewed with suspicion when enshrined in law.  It could have interesting consequences, though, since this argument would eventually lead to women being eligible for the draft.
As Professor Akhil Amar concluded, ?the militia is identical to the people . . . .? Akhil Amar, The Bill of Rights 51 (1998); see also Nordyke, 319 F.3d at 1195-96 (Gould, J., specially concurring). The two are synonyms. There is, quite simply, no support for the contrary proposition that ?militia? means ?states? or ?soldiers.?

Plaintiffs raised these arguments in their pleadings below, and clarified, at oral argument, that they are as much members of the ?Militia? described in the Constitution as was Mr. Miller, as is any other citizen. JA 69, 71-72. Indeed, at oral argument, Plaintiffs also noted they fall within the definition of the militia under D.C. Code 49-401. JA 72.
This is significant because the plaintiffs are not just militia members under federal law but also under local law.  This counters the argument that a state or local government might define "militia" differently than the federal government; at least in this case the definition is similar enough to be irrelevent.

If anyone can provide the actual text of 49-401, I'll post it here, but a quick look didn't locate it.
The District Court acknowledged Plaintiffs? claim to Militia membership:

THE COURT: Essentially, so the record is clear, Plaintiffs, indeed, contend to be members of a well-regulated militia as opposed to a state-sponsored militia ?

MR. GURA: Correct . . . They are members of the Militia. . .

THE COURT: All right, I understand your argument.

JA 74. Thus, the District Court clearly erred in holding that ?none of the Plaintiffs have asserted membership in the Militia.? JA 61. Plaintiffs have always maintained that ?Militia? was correctly defined in Miller in a manner that includes
I would speculate that the District Court perhaps meant that the plaintiffs did not assert membership in a state-sponsored militia, but didn't actually write that.  At first glance it seems like a pretty minor mistake.  However, given the context, it could easily constitute reversible error -- that is, an error of fact that would have changed the outcome of the case.  While the lower court's interpertation of the 2nd Amendment could easily provide that sort of error, if the appeals court is inclined to give some deference to the militia link this minor error could easily provide an excuse to do so. 

One possible outcome of the case, therefore, would be a remand to the lower court with instructions that the plaintiffs are members of the militia and the lower court should start over from there.  That's essentially how the Miller case turned out; the judges said, "Hey, there's no evidence this type of firearm has anything to do with militia service; go back and figure that out, then try again."  Unfortunately, in that case, the trial never continued; which left the Supreme Court's reinstatement of the charges against Miller the final word on the matter.

I don't think it's likely we'll see a ruling like that after the degree of briefing effort gone into this case, but you never know. 

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Sun Aug 13 01:06:21 CDT 2006 by TriggerFinger. Comments [Tweet]

The Preamble does not limit the Right

The ?collective rights? interpretations of the Second Amendment depend entirely upon reading its explanatory  preamble as a limit on the substantive right preserved in the amendment?s operative clause. Apart from the contrary history discussed above, the argument fails as a matter of grammar, statutory construction, and precedent.

As a simple matter of English grammar, the Second Amendment?s first clause is prefatory and explanatory; it does not modify the subject ?right of the people.? The ordinary grammatical rule is consistent with ?longstanding and generally accepted principles of statutory construction, that, at least where the preamble and the operative portion of the statute may reasonably be read consistently with each other, the preamble may not properly support a reading of the operative portion which would plainly be at odds with what otherwise would be its clear meaning.? Emerson, 270 F.3d at 233 n.32 (citations omitted).
Aside from the analysis in Emerson, there are many cases where people have independently asked experts on the English language this exact question.  I'm not aware of any such query that suggested the preamble was a firm limitation.  One of the earliest attempts to perform this analysis was an article by J Neil Schulman entitled The Unabridged Second Amendment.
That the Second Amendment?s preamble cannot be read to  eviscerate the substantive rights clause is also clear upon examining the manner in which the Supreme Court has interpreted the other two constitutional preambles. With respect to the opening preamble, the Supreme Court has long held that ?[a]lthough that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.? Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). Plaintiffs are unaware of any case in which a court has interpreted the preamble as a limitation, enjoining governmental action as inconsistent with ?establish[ing] justice,? ?insur[ing] domestic tranquility,? ?promot[ing] the general welfare,? or ?secur[ing] the Blessings of Liberty.? U.S. Cost. pmbl.
One flaw in this argument is that the preamble to the Constitution itself is explicitly set apart from the rest of the document, while the 2nd Amendment's preamble is within the same sentence.  Yet, given that the 2nd Amendment consists of only a single sentence, that's not necessarily a strong argument.  The legal interpertations of preambles in general are useful, however.
The Copyright and Patent Clause preamble would arguably possess greater operative force than that of the Second Amendment, as it begins with ?To,? the infinitive that introduces most powers of Congress. If Congress has the powers ?To lay taxes,? U.S. Const. art. I, sec. 8, cl. 1, ?To borrow Money,? U.S. Const. art. I, sec. 8, cl. 2, and so on, then the power beginning, ?To promote the Progress of Science and the useful Arts,? U.S. Const. art. I, sec. 8, cl. 8, could stand alone absent the remainder of the Copyright and Patent Clause. In contrast, the Second Amendment?s preamble would in isolation do no more than declare an ideal.
This is a better analogy for our point, since this preamble is also contained within the same sentence, and there are precedents relating to its interpertation and lack of limitation.  Some of those precedents have unamusing consequences; for example, one major problem with software patents is that they do not "promote the progress of Science and the useful Arts," but instead impede that progress.  The patent office is unable or unwilling to properly filter out unoriginal patents, and lawsuits have been filed challenging the continuing expansion of copyright terms designed to keep Mickey Mouse in Disney's pocket. 

There are some more details on those cases below, and they constitute useful Supreme Court precedent on interpertation.
Still, courts have not barred Congress from issuing copyrights and patents that do not ?promote the Progress of Science and Useful Arts.? See, e.g. Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (?Congress need not ?require that each copyrighted work be shown to promote the useful arts? . . .?) (citation omitted).

In Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), aff?d sub nom Eldred v. Ashcroft, 537 U.S. 186 (2003), plaintiffs asserted that Congress did not ?Promote the Progress of Science and useful Arts? in lengthening the terms of pre-existing copyrights, because doing so provided no incentive to create new works. The plaintiffs argued that the phrase ?limited Times, ? U.S. Const. art. I, sec. 8, cl. 8, should be interpreted to reach ?only as far as is justified by the preambular statement of purpose: If 50 years are enough to ?promote . . . Progress,? then a grant of 70 years is unconstitutional.? Eldred, 239 F.3d 372, 377-78 (D.C. Cir. 2001).

This Court rejected that argument. The Supreme Court precedent marshaled in support of Eldred?s argument ?never suggests that the preamble informs its interpretation of the substantive grant of power to the Congress.? Eldred, 239 F.3d at 378 (citation omitted).

The Supreme Court was only slightly more generous:

[W]e have described the Copyright Clause as ?both a grant of power and a limitation,? and have said that ?the primary objective of copyright? is ?to promote the Progress of Science.? The ?constitutional command,? . . . is that Congress, to the extent it enacts copyright laws at all, create a ?system? that ?promotes the Progress of Science.?

Eldred, 537 U.S. at 212 (citations and footnote omitted) (emphasis added).  Acknowledging that the Clause as a whole may act as a limitation, the Supreme Court gutted the effect of the preamble by confirming that promotion of the Progress of Science and useful Arts is not the power?s sole objective. Moreover, ?it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.? Id., (citations omitted). Congress had a rational basis for determining that the extension of existing copyright terms ?promoted the Progress of Science.? Ibid.
It should be noted here that Eldred [PDF] is a case from 2003.   Although we have replaced 2 justices since then, we can have a pretty good idea what the court thinks about preambles from this case, and the fact that the precedent is recent will make it hard to dismiss or counter with opposing or narrowing precedents. 
Eldred?s lesson for the Second Amendment is clear. If the ?Progress? limitation in the Copyright and Patent preamble cannot restrain Congress from creating a system that retroactively benefits existing copyrights, neither may a conceptualized ideal of a ?well-regulated militia? restrain ?the people? from exercising their ?right to keep and bear arms,? which ?shall not be infringed.?  This is especially so considering the accepted principle that the powers of Congress ?are few and defined,? Lopez v. United States, 514 U.S. 549, 552 (1995) (quoting The Federalist No. 45, pp. 292-93 (C. Rossiter ed. 1961)), while rights of the people include even those not enumerated in the founding document. U.S. Const. amend. IX. At most, the preambular language of the Copyright and Patent Clause establishes a highly-deferential test that all but the most unjustifiable patent and copyright laws would pass. The fundamental rights secured by the Second Amendment are entitled to no less protection than Congress?s copyright and patent powers.
No less, but perhaps more, since there is a certain amount of tension between the 1st Amendment and the copyright clause.

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Sat Aug 12 23:35:41 CDT 2006 by TriggerFinger. Comments [Tweet]

A paper on the Parker amici...

There's an article by Don Kates in the Legal Times, discussing his amici in the Parker case.  I have that brief, but I haven't gotten around to analyzing or posting it yet, so consider this a teaser!

Hat tip to Of Arms And The Law for the article.

Fri Aug 11 05:42:37 CDT 2006 by TriggerFinger. Comments [Tweet]

The Clear Intent of the Framers

The Framers Clearly Intended That The Second Amendment Guarantee An Individual Right To Keep And Bear Arms.

?The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense.? Kasler v. Lockyer, 23 Cal.4th 472, 505 (2000) (Brown, J., concurring). ?[T]he history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.? Emerson, 270 F.3d at 260.
Ah, the Emerson case.  A cite to that case somewhere was almost inevitable.  The basic story is simple: an ordinary non-criminal individual went through a messy divorce; his wife alleged that he made threats against her; a boilerplate domestic-violence restraining order was issued, barring Emerson from possessing firearms; he then possessed one (if I recall correctly, he had a collection) and was charged.  There's more information on Lautenberg, the law responsible for this restriction (and named after the politician responsible for it), over at Gun Law News

I don't have as much information on Emerson online as I should.  I distinctly remember following that case and writing about it, but the database only has a few brief articles about it.  I'll come back to that case later, so look for more analysis in the near future -- as soon as I'm done with the current backlog of Parker documents.
After the Constitution was submitted for ratification in 1787, its Antifederalist opponents charged that the vast powers granted the federal government over military affairs would allow Congress to  destroy the militia through neglect or deliberate action, replacing it with a standing army designed to oppress the people. John Dewitt captured a key Anti-federalist fear when he predicted that, using its authority over the militia and its power to ?To raise and support Armies,? U.S. Const. art. I, sec. 8, cl. 12, Congress ?may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties?.? The Antifederalist Papers, 75 (M. Borden, ed. 1965).
The attentive will note that this is exactly what happened.  The standing army maintained by the Federal government  has taken over the complete role of national defense from state forces and the militia generally.  Even the National Guard, often described as a state militia by those who favor the collective-rights interpertation of the 2nd, is subject to Federal control.  The size and power of the United States military is exactly what the Founders feared would occur, and exactly what they wrote the 2nd Amendment to counter.  No matter how strong and powerful the standing army, the goverment has no power to disarm the people, and thus the militia can be called up in extremis to oppose that army.

There are many who would claim that victory in such a battle would be impossible.  That's debatable, but doesn't address the main point.  That there is a militia, even a vestigial one, backed by private arms, means that resistance to a tyrranical government remains possible.  That is what the Founders sought to ensure: that the government they had created would never be able to rule by force alone.  Any government that sought to do so would first need to disarm the people, either repealing or simply ignoring one of the nation's foundational laws, and the very attempt to do so would be a warning of nefarious intent.

The Founders sought nothing less than to ensure that a second revolution would be possible, should the central government they sought to create turn against the people.  They had fought their own revolution just a few years before, a revolution that was started by a British attempt to confiscate private arms from the people.  Is it so difficult to believe that they would seek to ensure such a thing would be possible a second time, should it become necessary?
The responses to such fears offered in the Federalist Papers show two things: (1) the Federalists, like the Anti-federalists, viewed the militia as consisting of all male citizens capable of bearing arms; and (2) the Federalists believed that widespread individual ownership of firearms would prevent the militia from being overpowered by any standing army, should the federal government ever become oppressive. Thus, in Federalist 29, Hamilton writes:

[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to  the liberties of the people, while there is a large body of citizens little if at all inferior to them in discipline and the use of arms, who stand ready to  defend their own rights and those of their fellow citizens. The Federalist No. 29, at 145 (Alexander Hamilton) (G. Carey, J. McClellan eds. 1990).

In Federalist 46, Madison echoed Hamilton?s argument by pointing to ?the advantage of being armed, which the Americans possess over the people of almost every other nation,? and contrasting this situation with that of Europe, where ?the governments are afraid to trust the people with arms.? The Federalist No. 46, 244 (James Madison) (G. Carey, J. McClellan eds. 1990). In America, any threat represented by a standing army would find its counterweight in ?a militia amounting to near half a million of citizens with arms in their hands?? Id.
We need to do a little math to get proper perspective on this number.  Madison is suggesting that a tyranical government would be opposed by an armed militia of half a million citizens.  That's a fairly big number -- if Al Qaeda had half a million armed members, we would be in real trouble.  And the current strength of the active-duty US Army (as of 2004) is  about 500K, with National Guard and Reserve troops adding another 700K.  But to truly understand what Madison is suggesting we have to place that number in context.

In 1790, the year of the first Federal Census following the ratification of the Constitution, the population of the United States was 3,929,214.  (Official but harder to read table)  So Madison was suggesting that the militia which would take up arms in response to government oppression constituted a full 1/8th of the population.  In modern terms (assuming a current population of approximately 300 million), that's 37 million people

Those numbers make it clear that the 2nd Amendment protects a near-universal right even if it is assumed that only militia members have the right to keep and bear arms.
Unwilling to accept the Federalists? assurance that the proposed Constitution contained no power that would allow the federal government to oppress the people, the Anti-federalists continued to oppose  its adoption without, at a minimum, specific protections for individual rights. Due to their influence, five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All five demanded protection for the right to bear arms; and all five made plain that the right to be protected belonged to individuals, not state governments. New Hampshire?s proposal provided that ?Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion,? language that unmistakably protects individual rights quite apart from any militia service. 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed., 1836). Virginia?s proposal, which served as a model for Madison?s draft, provided ?That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State.? 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 658 (2 ed., nd 1836). Thus, the language proposed by Virginia sets out the individual right and the preference for a militia in two unambiguously independent phrases, while at the same time making clear that the ?militia? and the ?people? are one and the same.
Well, not quite the same.  The people have the right to keep and bear arms, that a militia may be formed from the body of the people at need. It should be understood that the right belongs to the people (a universal protection) even though the militia is necessarily a more limited subset of the people.  But we should not lose sight of the fact that a "more limited subset of the people" is approximately 1of every 8 people expected to bear arms in defense of their nation.
Having secured the Constitution?s ratification, the Federalists were nonetheless mindful of the reservations with which the Constitution was ratified and the popular desire for a written declaration of rights. In his first inaugural address, President Washington signaled that a Bill of Rights might well be desirable, and would pose no threat to the young Constitution. Emerson, 270 F.3d at 244 (quoting President Washington, Inaugural Address, April 30, 1789) (citation omitted).

Accordingly, on June 8, 1789, then-Congressman James Madison proposed several amendments to the Constitution ? including one that provided in pertinent part that ?The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country . . . .? That the amendment was designed to  secure a personal right of the citizen rather than a collective right of the states is clear from Madison?s notes for the speech introducing the amendments, ?They [the proposed amendments] relate first to private rights,? 12 Papers of James Madison 193-194 (C. Hobson et al., eds. 1979), and his initial proposal to place the amendment alongside other individual rights already protected by the Constitution in Article I, sec. 9 ? following the habeas corpus privilege and the proscriptions against bills of attainder and ex post facto laws together with Madison?s own proposed protections for speech, press, and assembly. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 169 (N. Cogan, ed., 1997).
It is worth noting here that the Bill of Rights does clearly and unequivocally deal with private, individual, rights.  With the exception of the 9th and 10th Amendments, attempting to construe the rights protected by the Bill of Rights to a collective entity simply doesn't make sense. 
Madison?s colleagues clearly understood the amendment to protect an individual right. As Rep. Fisher Ames of Massachusetts described Madison?s proposals, ?The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.? Letter from Fisher Ames to George Richards Minot (June 12, 1789) (excerpt reprinted  in David Young, The Origin of the Second Amendment 668 (2nd ed. 1995)). The revised text of the amendment, as ratified, differs from Madison?s draft (among other ways) by moving the hortatory language about the militia to a prefatory clause, or preamble: ?A well regulated Militia, being necessary to the security of a free State . . . .?
For those not familiar with the language of the time, the right of conscience was language usually used for describing religious freedom.  That is a clearly individual right.  The right to change the government is more problematic; the right to vote is individual but the right to change the government is a collective result of those individual rights. 
At the time no tension appeared between the preamble and the operative clause protecting the right of the people to keep and bear arms. Its wording ?made perfect sense to the Framers: believing that a militia (composed of the entire people possessed of their individually owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms."  Kates, supra n.6, 82 Mich. L. Rev. at 217-18.

Indeed, throughout the entire legislative record, from proposal of the amendment through ratification, no assertion of a ?collective rights? view can be found. ?If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.? Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984).
While obviously records are not complete, we have a large number of papers dating from those days.  It strains credibility to suppose that not a single paper suggesting a collective-rights view would have survived when so many papers denoting the individual rights view are available today.  This is not a debate that occurs in a vacuum, but in the full context of our historical knowledge. 
Every notable constitutional commentator of the 19th Century understood the Second Amendment secures individual rights. Supreme Court Justice Joseph Story called the right protected by the amendment ?a right of the citizens? and noted that ?One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms . . . .? Story, A Familiar Exposition of the Constitution of the United States, 264-265 (1842). St. George Tucker, the earliest prominent commentator on the Constitution, regarded the Second Amendment right as equivalent to Blackstone's ?right of the subject,? protecting ?The right of self defence [which] is the first law of nature.? 1 St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, 143, 300 (1803). William Rawle, in his 1829 treatise, also affirmed the individual rights view,  declaring that the amendment?s wording was broad enough to protect the right from state infringement as well as federal:

No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.  William Rawle, A View of the Constitution of the United States of America 125-26 (Da Capo Press 1970) (2nd ed. 1829).

The ?collective rights? model of the Second Amendment is clearly a revisionist phenomenon. The Framers, and all prominent scholars for whom the Framers were within living memory, envisioned the Second Amendment as securing an individual right.
What this brief does not touch on is the original reason for this "revisionist phenomenon".  To put it bluntly -- following the Civil War, if a black citizen was to be granted the full rights and responsibilities of an American, certain states were not willing to allow the right to keep and bear arms to be one of those rights.  Instead, they passed laws restricting the right to arms generally, and then neglected to enforce those laws against individuals they approved of.  For more information on this, see The Racist Roots of Gun Control, by fellow blogger and author Clayton Cramer.

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Wed Aug 09 04:15:55 CDT 2006 by TriggerFinger. Comments [Tweet]

Door-to-Door down under

FIREARM owners in Wodonga, and in fact the whole of Victoria, have been put on notice.  Victoria police will be calling on them in the coming months to check they are complying with the law when it comes to the stage storage of their weapons. And those who are not doing the right thing had better watch out as the penalties for breaking the law are pretty severe.
It seems that police in Australia will be making use of the registration system to go door-to-door, verifying compliance with the safe-storage laws.  if you've ever wondered why gun owners in the United States are so determined to never allow registration, this is an excellent answer: once the police have a list, they are determined to use it.  They aren't looking to catch criminals who are out committing violent crimes; it's much easier to write tickets to honest gun owners who haven't hurt anyone.  And let's not forget this little bit of editorializing by the "journalist":
Those who legally own and use firearms have to know it is not a right, and it comes with a special responsibility to comply with all relevant laws.
In the US, it is a right.  And we intend to make sure it stays that way.

Wed Aug 09 02:47:43 CDT 2006 by TriggerFinger. Comments [Tweet]

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