Wednesday, November 21, 2007

Supreme Court Finally Takes Up the 2nd Amendment

I was glad to see the Supreme Court finally decide to take up a 2nd amendment case. I found this passage, from today's AP story on the Washington DC handgun ban, particularly amusing:
City officials said the law is designed to reduce gun violence, noting that four out of every five homicides this year were committed with a gun.

Let me offer up a little elementary analysis here. If you've had a ban on handguns for 31 years and you still have high levels of gun violence then obviously your ban is not working - this is simply not debatable. So why do these bans not work? Call it the theory of legislative physics:
Laws are only good at controlling the behavior of law-abiding citizens

Those that choose to murder people with handguns are not law-abiding citizens and thus they could care less that the city has a ban on handguns. It's like a Pink Floyd concert venue telling people that marijuana is banned - it just doesn't matter.

The debate hinges on whether or not the 2nd amendment is an individual or collective right. The Department of Justice has put together a thorough legal memo in response to this question and those that are interested can read it here. However, I took out one passage that I think effectively argues against the ridiculous notion of "collective rights" and is worth reading if you want to understand the DOJ position:
The Second Amendment’s recognition of a “right” that belongs to “the people” indicates a right of individuals. The word “right,” standing by itself in the Constitution, is clear. Although in some contexts entities other than individuals are said to have “rights,”37 the Constitution itself does not use the word “right” in this manner. Setting aside the Second Amendment, not once does the Constitution confer a “right” on any governmental entity, state or federal. Nor does it confer any “right” restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a “right of the people” discussed below, the Constitution in the Sixth Amendment secures “right[s]” to an accused person, and in the Seventh secures a person’s “right” to a jury trial in civil cases.38 By contrast, governments, whether state or federal, have in the Constitution only “powers” or “authority.”39 It would be a marked anomaly if “right” in the Second Amendment departed from such uniform usage throughout the Constitution.

In any event, any possible doubt vanishes when “right” is conjoined with “the people,” as it is in the Second Amendment. Such a right belongs to individuals: The “people” are not a “State,” nor are they identical with the “Militia.” Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a “right” only to the “people.” The phrase “the right of the people” appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” and the Fourth safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In addition, the Ninth Amendment refers to “rights . . . retained by the people.” We see no reason to read the phrase in the Second Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments.

7 comments:

Phil Marx said...

Jeff,

My opinion regarding gun rights has largely been developed as a result of my experiences living in my current neighborhood.

Last week, I was awakened at five in the morning by the sound of a body being slammed against the side of my house. I went outside and found three drug dealers wrestling in the middle of the street. Several pieces of wood that had been leaning against the side of my house were now strewn along the edge of the street.

I told them to leave. They refused. I told them if they didn't leave now, that I would call the police. They ignored me, so I went in and called the police.

I came back outside, and the drug dealers were walking away from the area. I had to wait now, because I had called the police. When the police arrived, I described the situation. One officer said "I thought we had things settled down over here." I named one of the drug dealers (I'll call him Joe) who had just left. This is a person who is known to every police officer that works this area. I explained how things seem to really get noisy when he's around, and that for the past two weeks he has been very active.

The next morning, I was working outside and Joe returned to the area and began selling drugs from the corner. At one point, he lit (for legal purposes, I'll say what appeared to be) a crack pipe. He was not hidden by any buildings or anything else. This guy was standing out in the open smoking his pipe.

I didn't call the police for two reasons. First, I have observed enough of Joe's behavior over the years to believe that his activities are sanctioned by the police (either the department or certain individuals). You don't act this brazenly as a matter of habit, and get away with it, unless you have someone looking out for you. The second reason was, as happened the previous night, by the time the police arrived, Joe would have been gone. So, the net result would have been to just waste my time. No action would have been taken against the criminal.

Now, as you know, last year the drug dealers attempted to burn down my house. They did this because I had been talking with the police, asking for help with the criminal activities which have been taking place here for many years.

You would not believe how big the problem is. I know the police do take some action on it, but they are going about it in the wrong way. For three years, I had offered to several police officers the use of my house. I would have let them place cameras and officers inside of my home to get at the heart of this problem. Instead of doing this, they continue to play games with the drug dealers and the innocent victims of their criminal activities. The results are that I live in a neighborhood that is controlled by armed drug dealers.

Over the years, I have spoken to other law enforcement agencies about the problem. The county sheriff told me they don't like to act within the city limits. The state police told me they felt confident that FWPD could handle the problem. The Federal DEA told me that I should talk to the FWPD. The county prosecutor only told me her office has no jurisdiction over FWPD.

So, I am living in a neighborhood where the government has effectively abdicated responsibility for the problems here. In this respect, I have no government acting to protect me. I must own a gun, for my own personal defense.

I have often heard people calling for a change to the second amendment. They claim that since this was written during the time of savage Indian attacks and a lawless frontier, it made sense. But now, they claim, our civilized world calls for changes to this amendment. I would like to see those people live in my neighborhood for a while. Then I’d like to hear their opinion on the matter.

Jeff Pruitt said...

Well put Phil. And if it's happening here in Fort Wayne then I'd say there's several more people just like you in DC...

I still think you need your own blog where you can post the daily shenanigans that happen in your neighborhood

Parson said...

I read this earlyer from Paul Helmke on Huffington Post. It's related to your post.

http://www.huffingtonpost.com/paul-helmke/the-most-significant-seco_b_73608.html

Charlotte A. Weybright said...

I will still argue that if the writers of the Second Amendment intended for the right to be an "individual" right, all they had to do was remove the initial qualifying clause, "A well-regulated militia being necessary to the security of a free state."

No one prevented the writers from simply writing "The right of the people to keep and bear arms shall not be infringed."

Jeff Pruitt said...

Clause A doesn't negate clause B - in fact it reinforces it. We had no standing army like in modern times and thus the militia were the people.

Arguing that militia somehow meant the "army" or other state sanctioned body ignores the historical context of the word. I'm sure the DC lawyers will make the same argument you're describing but I believe ultimately they will lose...

Charlotte A. Weybright said...

I am not arguing that it meant the army. I know there wasn't any "organized" army at that time. All I am saying is that the first clause limits the second; it doesn''t negate it.

It will all boil down to how the Court sees the relationship between the first clause and the second clause.

No one still is able to explain to me why the writers didn't just leave the first clause off if they truly wanted to protect the individual right to bear arms.

Bobby G. said...

Phil:
If I didn't know better, I'd SWEAR you must live in or around MY part of the city.

SO much sounds all too familiar...and with the same results I might add.

I've had a brick through the window, BBs, paintballs and eggs tossed at my house...ALL BECAUSE I don't want these druggie-thugs around MY property.

BTW...you should see what a million candlepower spotlight and a pistol (with some choice words) will do to mooks arguing on one's property late at night...no police required!

Now that is wat I call COMMUNITY-oriented policing.

aka MY way.

Keep up the fight!

B.G.