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June 26, 2008 09:19 PM UTC

Supreme Court Rules 2nd Amendment Individual Right

  • by: HamiltonRoberts

( – promoted by Colorado Pols)

Today the Supreme Court ruled in the case of Heller v. District of Columbia that the Second Amendment of the Constitution is an individual right. From

Answering a 217-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession. Although times have changed since 1791, Justice Antonin Scalia said for the majority, “it is not the role of this Court to pronounce the Second Amendment extinct.”

This is a historic day for the court, because this is the first time in the history of our Republic that the court has defined what the Second Amendment means. Many have thought that the militia clause of the Amendment governed the whole, and that it meant only militaries and law enforcement have a right to bear arms. But the court today relied on the “right of the people” clause to justify their ruling.  

This should open up a lot of legal challenges to laws the prohibit the possesion of fire arms.

Here are some quotes from Justice Scalia’s majority opinion to give you a grasp of what the majority was thinking.

“Logic demands that there be a link between the stated purpose and the command.”

“We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

“the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons.”

“The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”

“Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”


33 thoughts on “Supreme Court Rules 2nd Amendment Individual Right

  1. Understand the reasons why and how this came about now, but still don’t like it.

    I am for a person being able to own a gun, but societal changes dictate that there should be specific regulations on how individuals are to control the use of said guns and how government is able to respond to outbreaks of violence in cities.

    ‘Well regulated militia’, IMHO, does not mean individuals – but, the SCOTUS has spoken.  

    Suppose I’ll have to wait around for awhile longer until the pendulum swings back towards common sense.

    1. A number of friends called today to shout joyous victory.

      The logic on the ruling could be that ya’ll need to be locked and loaded as we have child rapists running these here streets in need of some special treatment.

      p.s don’t own a gun, don’t do the gun scene, etc….

  2. Since you didn’t answer them on the open thread, I’m going to repost Craig’s questions for you to answer here.

    Just shows what Hypocrites they are

    Now they’ve just read the pre-amble out of the Constitution.  Why?  Because this is a pet political issue and they had to give payback.  What ever happened to original intent?  Now they’re saying that because society changed (i.e. we don’t have militias anymore) that it is OK to read out that clause of the Constitution.  Let’s just be real.  Each side interprets the constitution.  Each side makes law from the bench.

    Wow.  This looks like Roe for guns.  You can ban in school and public buildings, you can ban mentally disabled people and felons, you can ban certain types of weapons.  How, how is this any different that what they did in Roe?

    I also have one more question for you. Do you consider this judicial activism? This is first Supreme Court ruling on the 2nd Amendment, which many will consider “legislating from the bench.” And what’s ironic about that, is the fact that it’s a Conservative bench ruling as you noticed in a 5-4 decision.

    The court ruling can be found here, including the dissenting opinions (two in fact) by Justice Stevens and another by Justice Breyer; both were joined by each other, Justice Souter and Justice Ginsburg.

    1. First off, this was an original intent reading of the Constitution. They took the words for what they said. “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.” These are two separte parts of the text. When you read it like that you can see clearly that the “right of the people.” Go to this website too see what the founding fathers had to say about the 2nd Amendment

      Second, I don’t consider this judicial activism, because they did not legislate. They held an opinion on what the Constitution said and struck down a law and then did what the court is suppose to do and explain the meaning of the Constitution.  

      1. And the discussion of the 2nd Amendment at the time seems to back it up.

        The preface clause is separable from the statement of rights by any plain reading.  Nor is “the people” generally construed as granting States the right; rather, it is specifically a right granted to the People at-large.

    2. I was expecting the Court to recognize an even broader right than the one they defined today, especially as it was known that Scalia was the likely opinion-writer.

      The only thing today’s ruling appears to forbid is banning (or effectively banning) the ownership by lawful and capable people of “common” weaponry.  It does not forbid restrictions on waiting periods, or background checks, or limits on types of weapons, or carrying limitations, or limits to felons or the dangerously mentally ill.

      As to how it differs from Roe – Roe is a much more complex case, since it involves an unenumerated right.  This ruling is specifically on the meaning, intent, and scope of the defined 2nd Amendment right to bear arms.

  3. You did a good job with your diary.

    I thought that one part of Scalia’s opinion was interesting

    Scalia said [that] nothing in Thursday’s ruling should “cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

    It sounds like the right of law abiding citizens has been strengthened without compromising a state’s right to enact reasonable laws to protect citizens from the more dangerous elements of society.

    1. it does sound to me like the court is legislating from the bench if it is codifying the exclusions as outlined by Scalia.  Those exclusions are not to be found anywhere in the 2nd Amendment.

      If the right of the citizens to bear arms is to be unfettered, then how can it be restricted from schools and other government buildings; and if one is mentally ill but has committed no crimes, how can the individual be denied the right to a firearm if a court has not taken that right from them?

      1. This whole judicial activism/legislating from the bench thing gets so tiresome.  If you agree with it, it’s honest construction of the original text; if you don’t, it’s legislating from the bench.  That’s usually all the distinction means.

        “The right . . . to keep . . . arms shall not be infringed.”  You may notice it nowhere tells us what exactly that right consists of, and it certainly doesn’t say “the absolute right to bear any arms at any time and at any place.”  The Constitution’s kind of that way, and that’s why the Court so often has to balance things.

        Example: we, the people, have the right to vote, yes?  Does it “infringe” that right to tell us we can only exercise that vote on a certain date and in a certain location?  We the people have the right to petition government – does government infringe that right if it arrests us for trespassing for marching on the floor of Congress while it is in session to petition our representative?  It is pretty well universally accepted that government can place reasonable time, place, and manner restrictions on the exercise of rights, and the Court’s endless task is to define the boundary betweeen reasonable restriction and infingement of right.

        That doesn’t mean I always agree with where they draw the distinction, mind you, I just respect the fact that it’s a difficult job with a lot less guidance available in the Constitution then the average person assumes.

              1. “House of Representatives shall be composed of Members chosen every second Year by the People

                “he United States shall guarantee to every State in this Union a Republican Form of Government

                The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”

                “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof

                The fact that the framers so took the right for granted as to have it assumed rather than expressly conveyed in the Constitution does not mean it does not exist.  Thank you for calling attention to a perfect example of why common sense is needed when construing the Constitution.

                1. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”

                  “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof”

                  can’t be used to cite the intend of the “framers”

                  The 15th amendment was ratified in 1870.

                  The 17th, direct election of senators, was added in 1913.

                  The right to vote was far from universal in the early days and many states restricted it to property owners.

                  1. Okay so I was being a little sloppy with “framers” (although in my defense, this is why I did not use “founders.”  Are “the people” who got to vote the same “the people” who get to bear arms?  If so, I suppose the right can be denied to anyone but landed white men.

    2. will keep lawyers busy for eternity arguing just what it means.

      Let’s start with what they didn’t change: restrictions on felons, mentally-ill, schools, government buildings, etc. These are all reasonable restrictions, but who exactly decides what is a reasonable restriction? Not legislative bodies, Apparently only SCOTUS.  

      This decision states that you cannot regulate guns based on the length of their barrel (remember, the DC law only banned handguns, not rifles and shotguns). Many would state that this is a reasonable restriction. And what about machine guns? Why isn’t it reasonable to shoot 100 bullets in a few seconds? What would make that UN-reasonable (especially in light of the preamble)? So who decides what’s reasonable? The guys who are appointed or the guys who are elected? And how do they decide? There are no clear lines here.

      Thus, this decision will take the rest of our lifetimes to unsort. That makes it really, really stupid.

      1. This decision is very broad and implicates most of the gun legislation of the last 70 years.

        I am pro 2A, but this decision is shockingly broad.

        It also implicates any restrictions on use of force in self defense (which some states–not colorado- have).  

  4. I agree with it. The decision shows a narrow interpretation and in fact, even states that it is not opening the door to arguments regarding the banning of weapons on school grounds, for example.

    I’m pleased with the decision. Interpreted the 2nd amendment the way I had hoped they would.

  5. Scalia seems to through Miller under the bus.

    This implicates the national firearms act (making machine guns, sawed off shotguns, explosives, and silencers a class II weapons (subject to special restrictions))  Scalia uses the word “may” which leaves open whether ownership restrictions under the law passed in 1934 to deal with heavly armed gangsters is constitutional.

    Scalia does support state/municipal laws banning concealed carry (I think).  He doesn’t opine on whether open carry is restrictable outside of ‘sensitive places.’

    Thre is going to be a LOT of litigation on the 2A for the foreseeable future.

    My gut is that Scalia would have stuck down the 1934 act and overturned Miller if he could have gotten Kennedy and Roberts to go along with it.

    great now I’ll be able to buy that FN-Fal I’ve always wanted!!!  Maybe I can get a few grenades too. Woot!!! (that last bit is a snark)

    1. when it’s so easy to make a Molotov cocktail?

      On second thought, with gasoline soaring to $5 a gallon, who can afford  a mototov cocktail?

  6. In a 68 page majority opinion he devotes 1 paragraph to “well-regulated.”

    I actually have long argued for broadened protections on gun ownership/carry contingent on training.

    I grew up hunting, took hunters saftey, did IDPA, I practice at the range, am laywer (helps in knowing self defence laws).  Many gun owners are similar–many have greater knowledge/experience.

    However, I am deeply discomforted by the minimization of “well-regulated” by the court.  To me “well-regulated” means well trained and the court agrees.  

    However they seem to believe the prefatory clause (a well regulated militia, being necessary to the security being necessary to a free state) has no purpose or meaning other than defining why the the operative clause (the right of the people to keep and bear arms shall not be infringed)is necessary.

    This is ridiculous. If the operative clause is unlimited by the prefatory clause, why bother putting it in the constitution?

    Interestingly, Scalia was an activist in reaching outside the plain text into common law to add the right of self defense as a basis to strike down the D.C. law.  (I agree with both reaching into common law for rights in the general and in the specific in the right self defense–Scalia generally does not, hence his rejection of privacy rights)

    His reasoning plainly ignores the purpose of the Prefatory clause.  

    To me the Prefatory clause must have some meaning.  The meaning of the word militia has evolved beyond the founders understanding (the NG is not the militia since the Dick act–the founders would have been discomforted by a large standing army–this is why we have Marines), but other aspects of the prefatory clause remain largely consistant with their original meaning. Well regulated means something, security of the free state means something and Scalia applying a common law concept outside of the plain text of the 2A does not change that.

  7. Put aside if we think guns should be more regulated (I think they should) – the sole question in front of the court is the interpretation of the 2nd amendment.

    And the 2nd amendment clearly gives individuals the right to own weapons.

    Yes the world has changed a lot. Yes the power of weapons has changed a lot. Yes back then they were not used for crime like they are now. So what – none of that bears on that wording.

    To restrict gun ownership further legitimately requires a constitutional amendment removing or changing the 2nd amendment.

    For all of the liberals who are very quick to say that we must retain our freedoms even when it risks our security (I agree), well our freedoms fundamentally include retaining our constitutional rights. Even rights we may wish did not exist.

    Score one for the rule of law and the U.S. Constitution.

  8. The Constitution says citizens can and should be armed. What’s the problem? Only government employees get to have guns? That makes no sense, whatsoever.

    1. You’re a state employee and you work for me Senator.

      If you don’t understand the Constitution, the law, or common sense for that matter you have no place being in office.

  9. Does anyone besides me think that it is ironic that this decision follows the news that Arapahoe County has banned the concealed carry of sticks!

    Remember, guns don’t kill people, sticks do!

    1. before he crashed his scoot and died, had a bumper sticker that rings true……”An armed society is a polite society”

      Guns don’t kill people anymore than cars kill people.

      People kill people. Anyone that says that is untrue needs to show me how a gun or car can kill anything, all by itself.

      1. But would you also agree that if there are many handguns in a dangerous community and the individuals with these handguns are killing and injuring too many people, that law enforcement has the duty to lessen the number of injuries and fatalities – protecting the public?

        If people were going around drag racing on the main strip and pedestrians were injured/ killed when drivers lost control, law enforcement would limit the amount of cars on the strip and enforce safety laws.

        The problem with the ruling is it limits law enforcement’s ability to mitigate dangerous situations.

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