Second Amendment in Question

This will no doubt strike a chord with many readers.

In short, the issue at hand is a district wide ban in DC of handguns. Civil liberties groups as well as some expected organizations are claiming unconstitutionality.

Those claims are understandable to me. But, I do think that the law is constitutional.

Before I go into detail, I feel compelled to say I support gun ownership.
If we are to look the SA we must remember that it calls for good regulation. This is one example of good regulation.

Here is why. DC, as is well known, had turned into a cesspool of crime and nefarious activity, where guns–in addition to drugs–had led to the city’s demise. The ban was necessary for a city wide rejuvenation.
Believe it or not, I feel that Justice Scalia’s version of originalism would justify the belief here (and very few other places) that this is good regulation. Scalia would (or, should) argue that the writers of the constitution would expect the original definition of “well regulated” to protect citizens, when guns started to be used for violent methods and not for defense in the wild, or protection from a too powerful central government.
If this were a blawg, I would go into much more depth as I believe my definition somewhat simplistic. But at this juncture I will wait.

26 comments

  1. Jason Pye says:

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    The Second Amendment has always been hard for people to understand clearly.

    The Bill of Rights did not deal with collective rights. Each of the the initial eight deal with specific individual rights and the last two speak to Natural Rights (ie. individual rights).

    If you look at what the Founders said about the gun ownership, it’s clear what their intent was…that law abiding individuals would be allowed to own a gun to defend their life, liberty and property.

    Reading the Second Amendment, it says two things…that states may keep a militia (which exists today in the form of the national guard and state defense force) and that that individual citizens have a right to keep and bear arms.

    I don’t see how you can read that text and not come to the same conclusion.

  2. Jason Pye says:

    DC, as is well known, had turned into a cesspool of crime and nefarious activity, where guns–in addition to drugs–had led to the city’s demise. The ban was necessary for a city wide rejuvenation.

    Do you believe that if this ban stays that somehow all the drug dealers and criminals will suddenly stop using guns to commit crimes? Thats’ naive.

    You are allowing that sort to pray on defenseless citizens. And, God forbid, a citizen decides to ignore the ban and winds up shooting a criminal. What happens to him? He has disobeyed a law, but he has possibly protected his life.

    The police are not going to appear of thin air when crimes are being committed like Superman. People who would have normally been able to protect themselves will be victimized because a few lawyers felt that the city need to be “progressive” and try to revise the intent of the Founders.

  3. griftdrift says:

    And to continue mine and Jason’s argument from months ago…

    Restrictions on guns is settled law. for better than 60 years.

    But just because something is constitutional does not make it wise. Most gun laws are far from wise.

    As far as the founders intent, the only time a restriction on rights appears in the Bill of Rights is in the Second. Regulated.

    It doesn’t appear in the First, the most absolute of the amendments, yet we accept regulations on items like speech to protect the many against the one.

  4. Pappy says:

    Jason,
    Just out of curiosity, how many crimes do you think are prevented by otherwise “defenseless citizens” who happen to have guns? It’s not like criminals in D.C. now are saying, “I would totally rob Joe Public over there if not for the possibility that he might be packing”.

    and for the record – I like guns and I’m not anti-SA but when it comes down to it, you are more likely to survive an armed robbery if you are unarmed.

    Perhaps a better measure for DC would outlaw guns everywhere except in the gun owner’s house?

  5. Jason Pye says:

    It’s not like criminals in D.C. now are saying, “I would totally rob Joe Public over there if not for the possibility that he might be packing

  6. Jason Pye says:

    As far as the founders intent, the only time a restriction on rights appears in the Bill of Rights is in the Second. Regulated.

    I’m not saying that there doesn’t need to be some minor (and I say that with caution) regulation gun ownership. I don’t believe violent criminals should be allowed to carry, nor do I believe someone should have heavy arms (ie. a tank or mortars).

    But as I read the amendment, the only specific regulation applies to the militia (a well regulated militia).

    Out of everything you’ll read from the Founders, there isn’t much, if anything, about regulation on individual firearms ownership.

  7. GabrielSterling says:

    In a practical sense, this ban can’t work.

    Not to cliche, but criminals are…well…you know…criminals.

    This ban will not be followed by them. The ones who will follow it will be the law abiding citizens, who actually NEED the handguns to defend themselves, their families and their homes.

    This idea, like most ideas from the DC government, is a bad one.

  8. Michael C says:

    One only needs to look at Kennesaw, Ga and its mandatory gun law that was passed in 1982 for the model to mitigate crime. Crimes against persons (armed robberies, residential burglaries, commercial burglaries, and rapes) dropped 74% the first year and another 45% the second. There have been 3 murders in the city of Kennesaw since 1982, 2 by knife and one by firearm, dispite the areas population growing by more than 300% in the same time period.

    The ordinance cost the city nothing, citizens can opt out (origianl law amended in 1983) and most importantly criminals know the citizens of Kennesaw are most likely armed.

  9. hankreardan says:

    P appy the big question is how many never take place because one is scared of what might be behind door number one.It is not wheather you will survive it is wheather or not you are robbed at all

  10. DougieFresh says:

    The “it is so bad, we have to ignore the constitution” type of argument is very dangerous.

    When we pick and chose what we want the Constitution to mean based on need or desire, then we really do not have a constitution, we are nothing more than a despotism which uses the document only when it aids in subduing the people. Ignoring it when it is an obstacle.

  11. Danny says:

    “When we pick and chose what we want the Constitution to mean based on need or desire”

    Isn’t this the definition of a “Living Constitution”?

  12. GabrielSterling says:

    Danny,

    Are you saying are we have a “living Constitution”? If so that is a dangerous place to go.

    You essentially hand over what the Constitution means to 5 of 9 lawyers sitting on the Supreme Court. Justice Breyer was interviewed by Chris Wallace the other day and asked about whether he substituted his own views. He stated that he didn’t at the begining of his answer and then went on to expain how he, in fact, does put his own opinion in.

  13. Danny says:

    Gabriel,

    Yes, I am saying that I believe we have now have a Consitution that changes meaning at the whim of society & who’s on the bench.

    I concur on your second paragraph. You & I also agree that this is dangerous. But I can’t ignore it just because I disagree with it.

  14. rugby_fan says:

    If we don’t have a living constitution then I feel that that means the SCOTUS can not hear cases on many issues, which would be dangerous for the country.

    Do we need to throw out the writers’ views on every case? No.

    But we need to accept the fact that the SCOTUS is hearing issues that could not even be conceived of 230 years ago and thus there must be some level of flexibility in how the SCOTUS rules.

    And I do have a response and a critique to the comments forthcoming.

  15. Jason Pye says:

    Yes, I am saying that I believe we have now have a Consitution that changes meaning at the whim of society & who’s on the bench.

    I fail to see any provision in the Constitution that states that. You can’t change the meaning without altering the document.

  16. Danny says:

    [i]”I fail to see any provision in the Constitution that states that. You can’t change the meaning without altering the document. ” [/i]

    I think it was done in Kelo, but then, we’re getting way off topic.

  17. LiveFreeOrDie says:

    Perhaps a better measure for DC would outlaw guns everywhere except in the gun owner’s house?

    Pappy, that’s ridiculous. The Constitution doesn’t only apply to citizens while they are in their houses. Also, it may be fine for you, but as a female, I wouldn’t feel very safe walking around D.C. unarmed. You get raped and murdered all you want but as for me, no thanks!

  18. rugby_fan says:

    Amendments are fine. How we interpret the constitution is what I am concerned about.

    Take for example, a case with Internet Rights. How would we use the writers’ original meaning or definition to judge the merits of the case? You simply can not. There is no way we could imagine what the writers of the constitution would want for us to do in that situation as the internet would be inconceivable to them.

  19. Jason Pye says:

    I think it was done in Kelo, but then, we’re getting way off topic.

    Public purpose was redefined with Kelo, but it doesn’t make it right.

    The Second Amendment clearly states the right to individual firearms ownership. If you want to change it, the Constitution provides the Amendment process…but if you go that far with it, I think you’ll find that the Founders intent with the SA in action.

  20. Danny says:

    You’re beating a dead horse Jason. My point is that just because a judge interprets the Constitution to fit today’s feelings, it doesn’t necessarily make it right. I think you’re just misinterpreting what I’m trying to say.

  21. Demonbeck says:

    I you had argued that the need for a ban on guns was necessary due to road rage created by Ambassadors and drivers from Maryland, I would have supported you.

    A ban on guns only ensures that law-abiding citizens will not be packing heat – on their person or in their homes. You must – at the very least – allow guns in the homes – to empower people to protects themselves.

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