Journal Sentinel Gets It Wrong On Parker
<sarcasm>What a shock.</sarcasm>
Let’s take this piece by piece, shall we?
The drafters of the U.S. Constitution get much credit for their foresight in that they came up with a blueprint for a national democracy that has withstood the test of time. But what if these agrarian, 18th-century thinkers had gotten a glimpse of today’s urban warfare in America - made possible in part by guns far more accurate, speedy and deadly than the single-shot, muzzle-loading firearms around when they wrote the Second Amendment?
They would be shocked at the “urban warfare.” They would be shocked that the victims of this “urban warfare” don’t have the right to defend themselves in many of our country’s jurisdictions, including the nation’s capital.
Also note the attempt to blame the guns. Somehow, I don’t think the “agrarian, 18th-century thinkers” would be so quick to pass the buck from the criminals responsible for causing the state of “urban warfare.”
James Madison might say: Hey, we’d better clarify that amendment so it won’t hamper government in enacting sensible regulations for these future weapons of much destruction.
Yeah. Cause Madison was all about promoting government infringement upon those pesky rights the drafters thought sacred enough to single out in the Bill of Rights. Do these idiots actually think that the drafters of the Constitution and Bill of Rights, operating under the political and social climate of the time, would promote enacting “sensible regulations”? Especially on firearms, considering the drafters’ primary concern with the 2d Amendment was ensuring the ability of the populace to protect the security of a free State?
That didn’t happen, of course. So last week, the U.S. Court of Appeals for the District of Columbia interpreted the ambiguously worded amendment in a way that permitted it to declare unconstitutional D.C.‘s strict gun-control ordinance.
Indeed, the ordinance goes too far in that it effectively bans handguns at home. Another defect is that it does not specifically permit the use of long guns for self-defense. But the court went too far, too. It should have left to the democratic process any correction of these defects.
How about we enact a statute that prohibits the Journal Sentinel from covering any issues related to state or federal law? When they attempt to challenge it on 1st Amendment grounds, maybe the courts will tell them to leave it to the democratic process to correct. Freedom of the press is only a constitutionally protected right, after all.
The three-judge panel was too activist. It departed from mainstream jurisprudence, which is to regard the Second Amendment as safeguarding more the right of states to form militias than the right of individuals to carry arms.
First, they misstate “mainstream jurisprudence.” The only Supreme Court opinion on point, Miller, does not stand for what the Journal Sentinel seems to think it stands for. The Court addressed Miller (and the common misstatement of Miller‘s holding) at length in the opinion. Perhaps the Journal Sentinel missed that part. It’s only pages 29-58 of a 58 page opinion.
Second, just because something is “mainstream jurisprudence” doesn’t make it correct. We’re not dealing with an issue that has been repeatedly litigated, and on which there is an established body of settled law. The Supreme Court has not addressed the 2d Amendment since Miller was decided—in 1939. Miller is the only Supreme Court case to hold* that the 2d Amendment is a collective right (*as the Parker opinion points out, that’s not really the holding of Miller—it’s just commonly misinterpreted as such). I wonder how the Journal Sentinel would have felt about Dred Scott? Or the state of defamation law before NY Times v. Sullivan?
The dissenting opinion even argues that the Second Amendment doesn’t apply to D.C., since the amendment’s focus was on protecting states from the standing army of the federal government. It makes no sense to give the federal seat the right to defend itself against itself.
That’s why the dissenting judge is now a laughing stock. Her logic was as follows:
1. The 2d Amendment exists to protect the militias.
2. The militias’ only purpose is to protect the interests of the individual states.
3. D.C. is not a state.
4. Therefore, the 2d Amendment does not apply to D.C.
#2 is absolutely laughable in the face of history, and the contemporaneous record. The dissenting judge went reaching for a straw—any straw—to reach her desired result. She found it in the phrase “being necessary to the security of a free State.” That’s “State” as in nation-state. The drafts of the Bill of Rights show that the drafters meant “State” to refer to the nation, not to an individual state. The usage of the phrase elsewhere in the document is consistent with this interpretation. Plus, it leads to the absurd conclusion that the 2d Amendment doesn’t apply to D.C. at all. Somehow, I don’t think that’s what the drafters had in mind.
But the legalities aside, the wise course is for the people, through their government, to have the right to regulate firearms for safety’s sake. The people ought not to overregulate - which D.C.‘s ban on pistols and revolvers not registered before Sept. 24, 1976, does.
Nothing in this ruling will prohibit reasonable regulations on the 2d Amendment. The opinion is clear on that. But the regulations must be reasonable. Requiring a gun to be stored unloaded, disassembled, and locked is not reasonable. Prohibiting a person from carrying a gun in their own home is not reasonable.
The gun-control ordinance calls for keeping firearms in the home unloaded and disassembled or disabled by a trigger lock. But the wording is such that it can be interpreted as barring the assembly of the weapon or the removal of the trigger lock in a moment of self-defense. That defect needed fixing, but not by the courts.
It’s unconstitutional, and it needs fixing by the courts. Does the Journal Sentinel really think that D.C. would fix it in a fit of conscience without being forced to?
The district may appeal the verdict to the full Court of Appeals, which should reverse. Meanwhile, D.C. should loosen the ordinance to permit the licensed possession of handguns in homes and the use of firearms in self-defense.
Fat chance of #1. D.C.‘s only chance of avoiding this case as precedent for the rest of the country is to do #2, but even that might not be enough. I have to ask, though, where the Journal Sentinel stood on “loosen[ing] the ordinance” before this decision came out? Hmmm….. I wonder….
Seriously Jed, do you really feel like you need somebody’s/thing’s permission to wear it?
Posted by (JavaScript must be enabled to view this email address) on March 15, 2007 at 2012 hrsI’m not following your question.
Posted by Jed on March 15, 2007 at 2043 hrsFor me, the whole discussion on firearms is absurd at best.
AS Neil Craig put it yesterday “Better to be judeged by 12 than carried by six.”
Posted by (JavaScript must be enabled to view this email address) on March 15, 2007 at 2058 hrsI encourage everyone to get a copy of the SECOND AMENDMENT PRIMER, you can find it on Amazon. Outstanding little book that explains how the amendment came to be. Somebody please send one to the clueless MJS.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 0444 hrsThe JS also ignores the 5th Circuit’s decision in preference to that of the 9th. And even LeftyWonk law profs at Harvard (l. Tribe) agree with the interpretation that the RKBA is ‘individual,’ rather than ‘militia-contingent.’
Most likely it will go to the full 2nd, which will confirm, then to the Supremes.
Posted by dad29 on March 16, 2007 at 0704 hrsThe militia-contingent interpretation is the most ridiculous argument I’ve ever heard. I’ve read just about everything written at the time regarding the Bill of Rights (for a project for a professor when I was in college) and I can say without hesitation that the framers were not saying, “Because we need an army, we have to arm that army.” They were saying, “Because we need an army, and government and armies sometimes become corrupt (see. e.g. England a few years before in that whole revolutionary war), the PEOPLE need to be armed so they can, if necessary, fight AGAINST our own militia/army.” If you think about it in this way, and go back and read the text of the 2nd amendment, it’s actually very clear. Remember, all of the amendments in the Bill of Rights are protections from government.
Is this interpretation ever even discussed in the pro-gun circles Jed? I rarely hear you guys mention it. You seem to stick more to personal protection from thugs rather than from government.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 0847 hrsIt’s the most prominent theory in pro-gun circles, but I think you’re misinterpreting that part of Parker.
The judges weren’t saying that “because we need an army, we have to arm that army.” They WERE saying that because we need a militia, we need to ensure that militia can remain armed. Don’t confuse the militia with the army as an agent of the state.
Posted by Jed on March 16, 2007 at 1000 hrsI’m talking about what the framers of the Second Amendment meant, and to them militia did equate to army, more or less. Or rather, “a well-regulated” militia equated to an armed agent of the states. The framers did not pass the Second Amendment to ensure that the local militias had guns. They passed it so individual citizens would not have their guns taken away from them by the well-regulated (read: state-backed) militia/army. I know that today, militia and army are vastly different things, and they were different back then too, but in the context of the 2nd, they are basically the same thing. A well-regulated, state-backed military.
I’m not talking about any particular case on this. In my opinion, almost every court that has tried to interpret the 2nd has gotten it wrong. I’m just saying that if you read what people were talking about at the time the 2nd was added to the Constitution, they were talking about being affraid of government, the army and the state militias. They had just won a war against an oppressive government and wanted to be sure that if the new government became oppressive, it would think twice before turning it’s military on its own people. This is what the editorials in the papers were talking about at the time. This is what the second was meant to protect.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1016 hrsThe bill of rights pertains to individuals, not groups.
Posted by mickey on March 16, 2007 at 1023 hrs
The bill of rights doesn’t and the second amendment pertains to citizens, not armies rights.
Militia was in reference to people having power to protect themselves VERSUS the government.
Allahisjustalrightwithme, the framers of the constitution said the right to keep and bare arms shall not be infringed?
Infinged by whom, imposed infringement by whom onto whom.
Not a trick question allahisjustalrightbyme. Are you suggesting the second amendment created the ARMY?
Are you suggesting the second amendment actually meant the govt. was granting ITSELF the right to keep and bare arms?
Game over allahisjustalrightbyme. Our fore fathers were clearly affirming the PEOPLES RIGHT to keep and bare arms.
Lets just call the NRA our MILITIA and that ought to clear things up.So which definition of “militia” are we going to adopt?
If individuals have a right to bear arms what happens when they freely associate to form a group?When does this group become a Posse Comitatus, insurgent or terrorist grouping?
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1030 hrsQuiet Mickey, grownups are talking.
Did you even read what I wrote? You were basically agreeing with me but seemingly mocking me at the same time.
And where would you get that I suggested that the 2nd created the army? That’s stupid. I didn’t say anything close to that. Where did you get that I thought the 2nd was the government giving itself the power to do anything? Did you not read all that stuff I wrote about the 2nd being a protection of individuals against government?
pjr,
It doesn’t matter. The only players that matter with respect to the second amendment are (1) individuals, and (2) Government (this player includes the military). Individulas (the people) get to keep and bear arms in case the government get too oppresive. Individuals can form into groups all they want (see First Amendment) and not lose their right to bear arms.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1041 hrs“Our fore fathers (sic) were clearly affirming the PEOPLES (sic) RIGHT to keep and bear arms.”
THIS IS EXACTLY WHAT I’M SAYING MORON.
“Lets just call the NRA our MILITIA and that ought to clear things up.”
Wrong. The NRA is an advocacy group that wants to protect the right of the people to keep and bear arms. I’m suggesting that that right exists as a protection AGAINST the militia. So if you want to use the NRA as a proxy for somethign, use it for the people, not the government/militia.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1047 hrsUnfortunately jesu,
it does matter if you are sitting in a federal prison or mouldering in the ground because some government agents percieved you or your group as a threat.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1052 hrspjr,
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1058 hrs
It doesn’t matter with respect to what the correct interpretation of the constiution is. The effect of an amendment is irrelevant to what it actually means. If we don’t like the effect, we can’t change the meaing of the constitution, we have to change the constitution. There’s a way to do that.what the correct interpretation of the constiution is
Help me out here? Isn’t the whole discussion about what the “correct” interpretation is?
The effect of an amendment is irrelevant to what it actually means.???
How exactly do you envision the Supreme Court’ s role in this?
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1120 hrsWell, the Court should hold that the 2nd amendment meand (1) what it says, and if there are any ambiguities, they should refer to (2) what the framers of the amendment meant. They shouldn’t factor in the effects of their decisions at all. If the effects are bad, the legislature should remedy the effects as much as it can within consitutional limits, or amend the constitution. Here, the way I see it, DC’s gun control ordinance violates the 2nd on it’s face. If it were necessary to refer to original intent, my take is that the ordinance would still fail because it infringes on the right of the people to keep and bear arms. The same government that the 2nd is supposed to be a safeguard against is the one trying to limit it here.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1335 hrsHere, read this:
http://electriccommentary.blogspot.com/2006/10/readi ng-constitution-is-hard.html
Posted by PaulNoonan on March 16, 2007 at 1722 hrsWell said Paul. That’s exactly what I’m trying to say.
Posted by (JavaScript must be enabled to view this email address) on March 16, 2007 at 1747 hrsAllahisjustagoof, let me fill you in on something.
Posted by mickey on March 16, 2007 at 2325 hrs
Telling someone to shut up because the grown ups are talking, doens’t win any debate. It merely points out that you want to win by FIAT. Very very liberal of you Allah.
The Bill of Rights, applies to INDIVIDUALS or CITIZENS.
It does not in any way establish GOVTS rights.
The right of the people to keep and bare arms does NOT mean that the GOVT. can keep and bare arms. It means the PEOPLE/US/CITIZENS can keep and bare arms. The idea of a MILITIA was NOT the same as the GOVERNMENTS ARMY/TROOPS.
If you or anyone should contend that MILITIAS must be present for OUR/CITIZENS RIGHT to bare arms, that can be arranged, and in many many states does exist.
My my, I’d say that the Citizens patrolling the MEXICAN border would most definately qualify as a “militia”.
Allah, go ask your Mommy if the adults are finished talking yet.Seriously Mickey, there are two possibilities going on your “side” of this “debate.”
The first is that you haven’t read a single thing I’ve said. If you did, you’d know; (1) that my position is that the 2nd amendment protects the rights of individual citizens to keep and bear arms, (2) that I’m not a liberal, and (3) that the name under which I’m posting is “jesusisjustalrightwithme,” a tribute to the Doobie Brother’s hit. I didn’t mention Allah anywhere and I’m not sure what that’s all about.
The second possibility is that you’re just not very smart. This theory is supported by your bad spelling and propensity to bump the caps lock key at completely random times.
Which is it?
Look, the only thing we disagree about is what “militia” refers to. I’ve read hundreds of pages—letters, newspaper editorials, speeches, debates from the ratifying conventions etc.—about what the language of the Bill of Rights means, and I have a law degree and therefore took several classes on interpreting the constitution. You, um…, can read a little I guess. So we both have some support for our position. I’m not sure why you’d fight me on this at all since you appear to be pro-gun and my interpretation provides more solid footing for the right of the individual to bear arms than your interpretation does.
Are you perhaps confused about my position because in a post on this Blog a few days ago I mocked gun-nuts and implied that I was anti-gun? The truth is that I do think guns are pretty lame. But that has no affect on how I interpret the constitution. And the constitution says that you gun-nuts get to have your guns. Seriously Mickey, go read Paul’s post that he linked to above, that sums it up well.
Jed, (or Owen) you get how this argument goes, right?
Posted by (JavaScript must be enabled to view this email address) on March 17, 2007 at 0808 hrsSeriously Allahisjustalrightwithme, you’re a goof. What the fuck gave you the impression I was pro-gun you fucking imbecile. Do you mean because I support the words actually written in the Constitution. Allah, I’ve got 3 degrees. I trump you. I’m mocking you because you’re stupid, not because I love guns. I have very little interest in guns shit head.
Posted by mickey on March 17, 2007 at 1145 hrsWhatever deuchebottle. You write like a child. “Shit-head” is hyphenated moron.
And on top of that, I clearly know the consititution waayyy better than you.
Posted by (JavaScript must be enabled to view this email address) on March 18, 2007 at 0253 hrsMickey,
Keep calling our commentors “stupid,” “fucking imbecile[s],” and “shit head[s]” and you’ll be banned. Consider this your first and only warning.
If you want to argue the merits of the topic, please do, but don’t resort to personal or ad hominem attacks.
Posted by Jed on March 18, 2007 at 0747 hrsAnd Jesus,
Please don’t call Mickey a “deuchebottle” or a “moron,” no matter how uncivil he’s acting.
Posted by Jed on March 18, 2007 at 0749 hrs
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