I have written in the past about the possibility of incorporation of the Second Amendment, and again more recently, in light of the Supreme Court's agreement to settle the incorporation question (see links at right, below the picture). Most analysts seem to expect that SCOTUS will indeed rule that the Second Amendment is incorporated under the Fourteenth Amendment, and will thus apply to state and local governments, as well as at the federal level.
That certainly sounds good for gun rights, but is it, really? The most recent, and arguably most relevant, Supreme Court jurisprudence on the Second Amendment is, of course, the Heller decision from last June. I have mentioned before that Heller is far from the unmixed blessing that some of the more optimistic of gun owners perceive it to be, but I don't think I have really explained the reasoning that brings me to that conclusion.
A recent FOX News segment about what is involved in a D.C. resident's legal purchase of a handgun provides a useful illustration of what was "won" in Heller. NewsBusters helpfully provides a transcript--here are some of the requirements.
- A trip to the police station to pick up the initial paperwork.
- A five hour course covering law, safety, and shooting on a range. The FOX segment mentioned James Wiggins as one of the 30 instructors licensed to teach the course--this article states that the cost of the course Mr. Wiggins offers is $185.
- The prospective buyer can then go shopping--but not in D.C., because there are no gun shops there. The chosen gun must come from an approved "roster" of guns deemed "safe" enough for D.C. residents. It took the threat of legal action on the part of the Second Amendment Foundation to force D.C. to loosen the roster to the point that guns could no longer be denied on the basis of their color.
- Then, it's time for the FBI background check
- Now, back to the police department, for a 20 question exam, and fingerprinting
- A ten day waiting period (what--not ten years?)
- Then, yet another trip to the police department, to pick up the stamped paperwork
- Finally, you can have your gun, but you can't just go the gun shop where you purchased it--it has to be transferred through the one Federal Firearms Licensee in Washington D.C. who is willing to do the transfers, who meets clients by appointment only, and charges $125 for a transfer.
- Then, yet another trip to the police department, for the "ballistics test"
- Don't forget the other costs (pdf file):
Application $13
Ballistics Test $12
Fingerprinting / FBI Background Check $35
Total $60This is getting pricey: $185 for training, $60 to various government agencies, $125 for the transfer--not to mention the gun, the ammunition, cleaning supplies, and all the driving involved. The poor's right to self-defense is apparently not a priority in D.C.
And I have only scratched the surface of D.C.'s gun laws. Those laws, for example, include a complete prohibition on carrying a firearm outside the home, whether concealed or openly, an expansive ban of so-called "assault weapons," etc.
There are various attempts afoot (SAF, for example, is suing for right to carry) to scrape away at the layer upon layer of infringements in D.C. on that which shall not be infringed, some of which might eventually reach the Supreme Court. As of now, though, all these draconian restrictions are considered permissible under Heller.
This provides the forcible citizen disarmament lobby with a blueprint for exactly what they can get away with, and still be ruled to be in compliance with the Supreme Court's interpretation of the Second Amendment. Even when they are defeated on a given point, they merely have to back up an inch, and say, "well, we can still do that," after which they have to be challenged all over again--with no guarantee of victory at any step of the way.
This, in turn, affords politicians and candidates with Second Amendment "cover"--they can say "I support the Second Amendment," and even mean it, at least in terms of supporting whatever SCOTUS deigns to allow it to mean--while pushing for everything short of an outright gun ban.
For those who count Heller as a "victory," I would suggest setting one's ambitions a bit higher.
Comments
One reason why I’m glad to be in Texas. But this does give you a blueprint of how the Federal Government will regulate the Second Amendment if we don’t continue to fight and chip away at all of the restriction across the country. The polls for now are moving in our favor. But we need to continue the fight! We cannot let up. It amazes me how the government and SCOTUS and the left can conclude from the Constitution a “very” vague interpretation claiming a “separation of church and state” and a “legal” right to abortion, yet when clear language in the constitution is written that “the right of the people to keep and bear arms” is plain as day, they can’t seem to agree that that is what it means. To them it means “no arms” or that the amendment is not relevant (yet the “free press” clause is absolutely not to be infringed upon – not that it should). Oh the hypocrisy!
It's the poll tax, all over again. (Jim Crow, apparently, wasn't enough.) Didn't we decide that was a bad idea?
Nicely laid out, Kurt. This will be a highly referenceable resource.
I agree "the right to keep and bear arms shall not be infringed" any person ( any age, any background, any mental condition ) should be able to possess any arm ( hand grenade, tank, nuc ) anywhere ( church, airport, plane, school ). That's is what the amendment says. Can't argue.
Thanks, Conservative Texan and Kevin.
RINO Spotter, I agree, you indeed can't argue--not effectively, anyway.
Kurt
please feel free to point to any specific flaws in my arguement.
For one, your reference to grenades and nuclear weapons illustrates a confusion on your part about the difference between "arms" and "ordnance."
For another, getting a tank onto a plane in one's carry-on luggage, or even as checked baggage, will be rather difficult.
Finally, when you offer an actual argument, I'll get more specific about flaws in it--so far all I have seen for you is a puerile attempt at sarcasm.
So ordnance (like bullets) can be made illegal. Sounds like that would defeat the aim of keeping a "well regulated militia" but would still allow people to bear (useless) arms. Good idea.
My choice of arms on an airplane would probably be something other that tank--I agree again, the tank on a plane while legal would have technical dificulties.
You seem to be able to see the argument in my sarcasm.
Obviously, regulations that interfere with the use of protected arms would not satisfy the shall not be infringed stricture on the right to keep and bear arms.
Look--if you want a serious discussion, fine. If you plan to waste my time with childish games, we're done.
I am having a serious discussion. Isn't is resonable to consider what is meant by the words "person", "arm", and "infringed" might mean in this amendment. Since the "arms" are supposedly for a "militia", I would expect it meant "arms that are useful to a militia", and that would include "good arms"--like hand grenades and tanks and nucs. Is that unsound thinking? The amendment doesn't say what a person is. So I listed a number of classes of persons. Can you tell me what you think is an "arm" and a "person".
If Heller were the last step instead of the first, I would agree with you. But Gura and others are already filing suits to force D.C. into compliance with Heller and additionally force them to issue carry permits. It's hard to spin that as a negative. What you're really saying is that Heller didn't fix all our problems, but there was never any chance of that.
Don, I'm not saying that Heller will necessarily blow up in our faces--I just think the potential is there. Heller wanted to keep a .38 revolver in his home, and only got 5 votes, in a decision in which Scalia, our supposed "conservative warrior" on SCOTUS took great pains to point to numerous limits on the 2nd Amendment, and explicitly stated that those limits were not comprehensive.
I'm simply saying that we have won very little so far, and I see it as a very real possibility that "very little" is ALL we're going to win in SCOTUS.
Alright, RS--I'm probably going to regret this, but let me try to address at least some of your points. I don't agree that nucs make sense as militia weapons. I see the militia as being a force for fighting at home--exactly where we DON'T want anyone using nucs. We want to secure a FREE state, not a smoking, glowing, toxic one. Tanks also strike me as of rather dubious utility for a militia, but for a different reason--a militia needs to be lean and stealthy. Anything that hard to hide, with such extensive logistical requirements, would be destroyed (or simply abandoned after having broken down or run out of fuel) before it accomplished much of anything. Grenades--there's room for discussion. I'll worry about firearms first, though.
Persons (for purposes of this discussion): people who are competent to be left free in society without a keeper. People who belong in jail, and people too crazy to be left un-institutionalized without a keeper don't qualify.
Hey, there's no cavity search, at least.
Well, Kurt you already know my opinion of the likely long-term effects of Heller. I have always maintained it was a road map for restriction of 2nd A rights.
SA--you're one of the main reasons I came to see it the way I do now. For a short while last summer I was one of the people unabashedly celebrating Heller--then you had to come along and drag me, kicking and screaming, back to reality.
Thanks a million, you old coot ;-).
The liberty SOB in me notes the complications and the dancing here (in comments) that comes with the territory of discussing minutiae. Once we go down the path of legitimizing any discussion about what to "permit" and what to "deny", we've lost on principle. And given enough time, we inevitably end up here.
If indeed RINO spotter was engaging in puerile sarcasm, I hope it will shock him that I originally didn't take it that way. A person has rights by virtue of being a human being, nothing else. Any arm, any time, anywhere--yeah, that really does sound about right. Does this mean there won't be challenges with that? Of course not. It simply means some of us have more faith in the intentions of regular people than we do in the state.
Shocking, that.
Shh, Diamond Girl--don't give 'em any ideas!
Yet I do not read about the citizens of Washington DC identifying, promoting and working for the election of candidates for political office who will work for the full implementation of all civil rights for all citizens in Washington DC.
You get the government you deserve. Or ,as H.L. Mencken said, "People deserve the government they get, and they deserve to get it good and hard."
Wake up, and do not wait for the Supreme Court to fix things. Elect the candidates who vigorously support your rights. Run for office yourself if you must. If there are no suitable candidates running, identify a write-in candidate. Get active in the process!
Excellent article. I didn't realize Obama had such solid anti-gun roots. I've long made the deliberate decision to be an outlaw and ignore these onerous, burdensome, and restrictive laws in states like RI, Mass, and indeed, DC, which thankfully isn't a state.
Why isn't my concealed carry permit in my home state recognized by the others when my marriage license and state driver's license are? Apathy.
And we need civil disobedience, Henry David Thoreau style. You--and I include myself--Second Amendment have won the intellectual argument but the thugs are running roughshod over you. Try civil disobedience. A bunch of us show up at a place like NYC with our cheapest guns in a protest. Get over 2,000 and Bloomberg is in trouble.
People tend to forget, and the anti gun folks intentionally obfuscate, that a concurrent finding in the Heller case was that 2A was an individual right. That finding was unanimous by the court. The application to overturn the DC restrictions was a 5/4 decision.
No one with a lick of sense ever believed that DC would quietly roll over and comply. We will be fighting those anti gun control freaks in the courts for many years to come. The positive benefits of Heller were to open the door across the nation, as in Chicago, to challenges of the most egregious of 2A rights violations. And it did destroy forever the collective rights argument so dear to the hearts of Brady et al.
As for the militia clause, it merely serves to identify the interest the federal government has in the issue, not to limit any other reasons why a right of the people should not be restricted for the sake of government preference.
Put it this way - I'd rather SCOTUS rule the 2A provides an individual right than not, because now it's on the record. The foundation has been laid. Now comes the bricklaying.
Question for Kurt - If SCOTUS rules for 2A incorporation in McDonald v. Chicago, will that decision strike down NYC's infamous Sullivan Act (1911) as well, or will a separate suit have to be filed? I understand a ruling handed down by SCOTUS applies to all 50 states. But, where gun rights are concerned, you never know.
It seems to me most of you believe the SCOTUS is the final arbiter of our "rights." I totally disagree. We the People hold that discretion. But ONLY if we STAND UP and speak frequently and loudly and INSIST on their being "protected" by ALL LEVELS OF GOVERNEMNT!
Uncle Lar, consigning the "collective right" myth to the dunghill of history is definitely a good thing--no argument here. Unfortunately, Scalia left room for it to be regulated down to an individual right to, well . . . very little. From his "not exhaustive" list of restrictions that are "presumptively lawful":
" . . . laws imposing conditions and qualifications on the commercial sale of arms."
That sounds like an open door to licensing and registration.
The limitation of Constitutional protection to weapons that were "in common use at the time" means it would be permissible to ban every newly designed firearm, because a brand new design will obviously not be "in common use."
Those are just a couple examples of restrictions explicitly stated to be "presumptively lawful"--since that is not claimed to be an "exhaustive" list, there is very little off the table.
Luis, the Sullivan Law looks to be quite a lot less restrictive than D.C. gun laws--if those survive challenges, Sullivan should be able to, as well, even with incorporation.
Paladin, your point about not accepting SCOTUS as the final arbiter of our rights is well taken, but there will be a LOT of intellectual inertia to overcome before we can change the fact that a large majority of people--even among the more freedom oriented types--has come to accept that without question.
My question is, "How can you exercise your God-given right to self-defense (imbued in the 2nd Amendment) if you can't 'bear' arms outside your home?" In Heller, if I remember correctly, Scalia said Americans have the right to self-defense which means the right to bear arms, "...loaded and available for immediate use..." (or words to that effect). Also, personally, I think there are problems with Scalia's assertion that the right can be restricted in "sensitive places." I think the only "sensitive places" whereby the government can legitimately restrict the right would be locations whereby ALL who enter are searched or scanned by metal detectors, armed security is provided and the gov't assumes full responsibility for everyone's safety! If the government isn't providing effective security and assuming all obligations to protect the citizen, I don't think they have the power to infringe upon the God-given right to "Life, Liberty and the Pursuit of Happiness". CONTINUED
By infringing upon the fundamental, individual right to self-defense just mentioned in my previous post, the government would be violating those unaleinable rights to "Life, Liberty and the Pursuit of happiness." It makes me happy to be able to defend my Life and Liberty. Just sayin'
Kurt, thanks for your response. As I understand it, the Sullivan Act was passed at the behest of Tammany Hall pols in NYC, who wanted to exclude Italian and other immigrants from possessing firearms. That was blatant discrimination.
My own feeling is, if SCOTUS strikes down the Chicago ban, someone in NYC will file suit to have Sullivan voided, on equal protection grounds. Bloomberg is a demagogue, who has decreed that any gun not kept by the police or military, is an "illegal gun". Someone should challege him on that.
After all, it wasn't that long ago, that Bloomberg's Jewish religion was considered an "illegal religion" in a certain Central European country.
Tyrants never learn, do they?
Luis, that's my understanding, as well. Timothy Sullivan was a corrupt politician, and bigot, and the Sullivan Act was a creature of both of those failings.
I agree that incorporation of the 2nd Amendment would make the Sullivan Act ripe for challenge, but success would be far from guaranteed.
Paladin, NO argument here.
Kurt, I agree 100% that if the 2A is incorporated per SCOTUS in the McDonald case, that overturning municipal gun laws elsewhere is far from guaranteed. But, you have to TRY.
Given that SCOTUS has ruled municipal cops are not bound to protect individuals, couldn't an attorney arguing before SCOTUS, cite those cases as justification for overturning gun laws like NYC Sullivan Act? I know one case was Castle Rock v. Gonzalez, and there was another in D.C. (Hunter v. DC, I believe; where three women were attacked and brutalized in their DC apartment)
You can bet McDonald v. Chicago will be more closely watched than D.C. v. Heller was. EVERYONE from Small Town America to Big City America has a stake in this.
Kurt, if you think firearms and ammo sales went through the roof in the past few months, then try to imagine what they'll be like in the aftermath of a favorable ruling on incorporation from SCOTUS.
May we live in interesting times!
"In Heller, if I remember correctly, Scalia said Americans have the right to self-defense which means the right to bear arms, "...loaded and available for immediate use..." (or words to that effect)."-Paladin.
he then weakened it to almost uselessness with the phrase "within the home".
Do you not think that every jackass like Bloomberg if disabused of their monopoly of force by Heller will hang their hats on "within the home" only?
I've thought about the 2nd for a while since my original post. At first I considered it a completely useless amendment. If you consider the "no law will infringe upon the right of people to keep and bear arms" part it is useless. As soon as laws restrict the set of people or set of arm, infringemnt is done. Not to mention where arms can be borne. Then there is the well regulated militia part. Congress never got around to describing the regulations. And it you look at all of your arguments they hinge on the "right to self defence". Legally the 2nd is useless. Reading between the lines I decided that some contributors considered the 2nd to be support the ability of "The People" to take steps out of the legal framework i.e. start shootin someone. Rediculous. After I thought about it a while I think that is indeed what the framers of the constitution had in mind. They didn't know if all those rules they were rughting were going to work. An if they didn't The People had guns.
(Continued Part 2)
Couple of things they didn't worry about. As time past arms would get so effective that eventually one "arm" could wipe out a city. Not a good idea to have folks with a stockpile of mustard gas. The other is that the US military (under the control of the federal government) would become a force so powerful that a home-grown militia would be a useless force in opposition. Sure a self-styled mitilia would have their moment but any member not lucky enough to get shot is going to get a chance to see what the feds have learned at Gitmo. Beluga.
Sorry about duplicate posts. I guess my reload but restates also.
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