To Ban or Not To Ban
DC v. Heller
Editor's Note: Thomas's commentary is in blue and
Marcie's is in purple.
"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."
(As written and drafted in 1789.)
In 1975 the city of Washington, DC passed
the Firearm Control Regulations Act (FCRA) in an effort to curb
their growing crime problem. The law banned residents from owning
handguns, automatic firearms, and semi-automatic, high capacity
firearms, and exceptions were granted for police officers, and
all gun owners registered prior to 1976. Dick Heller, a citizen
of Washington, DC, wished to own a handgun, and went to register
it. He was turned down based on the FCRA. In response, he filed
suit in court and on 9 March 2007 the DC Circuit Court of Appeals
struck down the FCRA as unconstitutional. Immediately after the
decision, the city of Washington, DC, appealed the case. No one
expected the Supreme Court to accept the case, but in a surprise
move they did. On 18 March 2008, the high court heard oral arguments
in the case, District of Columbia v. Heller.
The city of Washington, DC, contends that
their law is sound, being within the framework of other pieces
of gun control legislation across the nation. Lawyers for the
city argue that the Second Amendment does not grant citizens the
individual right to own firearms. Their right lies solely in the
first clause of the Amendment, the Militia Clause. That only those
within the militia have the right to "keep and bear arms."
Furthermore, it was contended that the Second Amendment does not
apply to the District as a federal capital city. (This argument
was ignored by the Justices.) Yet when challenged by the justices
on how they could come to such a narrow view, the attorney for
Washington, DC, Walter Dellinger, would not budge from his position
regarding the militia clause. Chief Justice John Roberts even
questioned him regarding conscientious objectors. People like
Quakers and Mennonites (though not specifically mentioned) that
might have disliked war and violence. Yet, do they not have the
right to own a firearm for self-defense and hunting? No answer
was given to that question that justified the position the attorney
took. The Justices continually hammered the point home that you
cannot have one clause without the other. They argued that both
clauses were complementary to one another, and that one could
not simply throw out the second clause because the first is not
met.
The attorney arguing on the
opposite side, Alan Gura, stuck to an originalist interpretation
of the Amendment, going so far as to cite the two fathers of originalist
thought, James Madison and Justice Joseph Story. Justice Story
made it plainly clear in his "Commentaries on the Constitution
of the United States" that there is a definitive individual
right. Furthermore, he drew upon the primary reason why the Framers
included this right in the Bill of Rights. (Emphasis mine):
"The right of the citizens to keep and bear arms has
justly been considered, as the palladium of the liberties of a
republic; since it offers a strong moral check against
the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first instance,
enable the people to resist and triumph over them."
The Second Amendment was created for three
reasons: to provide the nation with defenders should it be threatened,
to give the citizenry a way to protect themselves against intruders,
Indians, etc., and to serve as the ultimate check against the
federal government should they threaten the rights of the citizenry
and turn tyrannical. This is the very argument Mr. Gura used,
and it seemed to resonate with the more originalist bloc of the
high court. Even Justice Anthony Kennedy continued to cite the
fact that there is an "obvious individual right" enumerated
in the Second Amendment.
We agree with the originalists. There is
an individual right in the Second Amendment, which allows citizens
of the United States to have a firearm in their home for a variety
of reasons. The primary three Thomas noted above, and it is right
in line with the beliefs of the Framers. Originalism is rooted
in the meaning of the text of the Constitution, and not in the
intentions of the framers. The intentions are arbitrary; as arbitrary
as a fleeting whim. What is binding is the law itself. We go back
to writings of the past to see if there is anything that could
show what the Framers meant at the time. We look to dictionaries
and law books from that period to see what those words and phrases
meant. We look at the meticulous notes of James Madison at the
Philadelphia Convention of 1787. These are what gives us the insight
as to what the law means, and that is all originalism is. Words
have meaning, and we are positive that the Framers meant what
they wrote. No court, not even the Supreme Court, has the authority
to deviate from what was written.
Some people will yawn when June comes around
and the high court renders it's decision. This is due mostly because
the media isn't paying any attention to this case. To them it's
just like any other high court proceedings, and they could care
less. But they should because if the Supreme Court rules that
the ban is unconstitutional and they overturn it, a precedent
will have been set that will allow citizens to challenge similar
bans across the country. For example the state of Illinois has
some of the most restrictive firearms laws on the books. In Chicago,
firearms ownership is banned unless they were grandfathered in
prior to the ban in April of 1982. But if the DC ban is struck
down, firearms owners can then challenge the laws restricting
them on the sorts of firearms they are forbidden to own. For the
record, this will not allow nuts to appeal the ban on certain
weapons, such as automatic assault rifles (this is a federal restriction
not a ban, and states generally abide by that). But they can challenge
the ban on handguns or semi-automatic weapons. That will be the
largest ramification that will come should the high court strike
down the ban.
Finally, we would like to predict what the
outcome will be. We do believe the Supreme Court will strike down
this unconstitutional law. Chief Justice Roberts and Associate
Justices Scalia, Thomas, and Alito obviously favor the dissolution
of the ban. Justice Kennedy seems to take notice of the individual
right; a fact made obvious in his questions during oral arguments.
Additionally, Justice Breyer is likely to side with them, given
his questions. He, too, acknowledged the individual right in the
second clause. That means this decision will either be a 5-4 or
6-3 ruling striking the law down. The prediction is dependent
as to how the court will rule. See, this goes to the law itself;
that firearms are banned in Washington, DC, unless registered
prior to the ban, and that they must be kept either unassembled
or have a trigger lock on them. This goes to whether or not the
ban is considered "reasonable regulation," which is
a question the high court will have to address. We believe that
they will strike down the ban on handguns, as they are the primary
source of self-defense, and rule that if the city wishes to regulate
firearms ownership, registration would be enough of a restriction.
Of course, that is merely supposition, but it would be an acceptable
balance to both sides of the issue.
He is a scholar of history, especially American
history, and the United States Constitution. She has finished
her undergrad studies, graduating with a BA in English and history
and will move onto law school this fall where she will specialize
in Constitutional Law. Together, Thomas and Marcie form the vanguard
of conservative opinion at Hamilton,
Madison, and Jay -- a blogging site devoted to advancing the
conservative cause by challenging the liberal lies and deceit
spread by the media, and espoused by the Left in general. Both
are expert debaters, and have beaten many liberals into submission
with their collective wit, and unmatched knowledge. The pair is
married, and resides in Arizona
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