DC V. Heller

March 16, 2008 at 9:04 pm (Guns)

On Tuesday, the US Supreme Court will hear oral arguments in the DC V. Heller case. The background of this case is quite simple. A security guard who was licensed to carry a handgun at work wanted to keep a gun at home for self defense. The DC government said no. The last appeals court ruled that DC’s law violated the 2nd amendment – and here we are. A decent write up is in the Washington Post. Because this is such a significant case, and I live close by, I’m planning on going to hear it.

Here’s my inexpert analysis:

First, the preamble of the Bill of Rights (did you know that it had a preamble?) says:

The Preamble to The Bill of Rights

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Which colors the meaning of ALL of the first ten amendments – whose purpose was to ‘prevent misconstruction or abuse of its powers’, and those amendments were to be ‘restrictive’ upon the government.

So, what does the 2nd amendment say?

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.

Kinda awkward, isn’t it. Maybe a diagram will help…

2nd Amendment diagram

So, to summarize:

‘A well regulated militia, being necessary to the security of a free state’ is the justification for ‘the right of the people to keep and bear arms’, which was not to be infringed.

Infringed – means encroached upon, and Encroach means to take by gradual steps.

Keep in mind also, that the founding fathers were really big into natural law, and that the government’s power was granted TO it by the people, and that people had natural rights, regardless of if the government recognizes them or not. The bill of rights was exclusively to protect individuals rights from being usurped by the government.

Everywhere else in the Constitution and Bill of Rights, the phrase ‘The People’ is used to mean exactly that.

Now, what do I expect the Supreme Court to do with this? Actually I expect them to punt. They will probably find some technical reason that they shouldn’t rule specifically on this, and send the case back down to the lower court.

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10 Comments

  1. DC V. Heller « Capital G Geek « Propertytoarms Weblog said,

    […] V. Heller « Capital G Geek DC V. Heller « Capital G Geek Published […]

  2. JMB said,

    “Actually I expect them to punt. They will probably find some technical reason that they shouldn’t rule specifically on this, and send the case back down to the lower court.”

    Hello Mr G man

    I think that you might be correct in your estimations.
    However, I do have a question for you.
    Do you think that this outcome would be good for a Nation of free people, and if so, why? /or why not?

  3. capitalggeek said,

    Yes. Ideally, the court would find that ‘the people’ means everyone over 18 (or 21), that ‘keep’ means to have in possession, ‘bear’ means to carry around, and the ‘militia’ is ONE of the reasons which speaks to the type of weapon that may be possessed (current military infantry issue).

    For a person to be ‘free’, they must be willing AND able to provide for themselves and assist their neighbors in providing for the common good. A good example of this is the difference between what happened with the tsunami in Sumatra, and the hurricane in NewOrleans. In both instances, the people were afflicted by a natural disaster. In one the conditioned independence of individuals encouraged them to fend for themselves and look after their neighbors.
    If we rely on government for things, we become dependent to and slaves of that government. I think it’s truly fitting that the same government (DC) that gave us the ruling that police only have a duty to protect the general public and not individuals, is the same government that will give us the ruling that allows us to protect ourselves. Only someone with a serious mental break could believe DC’s position on both cases.

  4. JMB said,

    This is a very interesting and provocative reply, Sr, that you have made, and I have found it to be most favorable to your own proclamation that, “ I particularly enjoy people that make me think.”
    I thank you for this reply, for it has also caused me to think, interestingly.

    I am in the process of reading the final review – the oral argument.
    And I am now considering that the Supreme court might very well decide in favor of Mr Heller. Now, whether this outcome might also be in favor of the People, or not, is in my opinion, a whole different topic for later discussions, mostly after this decision is made to be available.

    However I was quite amused when I had read this statement by Justice Kennedy
    “one of the concerns, of the framers, was not to establish a practice of amending the Constitution and its important provisions”

    From all the readings of the founders, that I have done thus far, this seems to me, to be a most unclean and inaccurate statement, of personal reasoning.

    For I have found it to be more so of the founders concerns, that the important provisions of the Constitution, and especially the Amendments, be not amended by those who have not been given this authority to do so.

    And this my friend, is the one provocative, that is causing me to haunt this internet to the very fullest of my own abilities to disregard those of my own limitations, lest they be more favorably seen unannounced, to my enemies.

  5. capitalggeek said,

    I believe that what Justice Kennedy was talking about, was that the framers wanted amendments to be rare, and difficult to make – ensuring that full thought had been given to their consequences.
    Specifically in that passage, he is questioning Mr Dellinger (DC Counsel) about why they would need a separate amendment to permit arms to the militia, when the militia was already established in the Constitution.

  6. JMB said,

    In historic reality Sr, it was Patrick Henry who had argued so stridently against the founders, and this Constitution, and those very procedures that were to allow these States, applications to Congress, for amending the Constitution. Now, while it can be most properly said, that the founders were intent, that full thought would be giving to those consequences of Amending the Constitution. It can not, However, be said here, that the founders, had not firstly anticipated that such improper attempts would be made, and that they had not therefor put into place those very mechanisms that would ensure that these possibilities would be rarely if ever successful. One of those basic principals that can not be found absent in those very procedures of this Constitution, was that the Judiciary had been given no authority whatsoever to Amend the Constitution, themselves.
    The people of this Nation have forgotten that they own abilities, to influence what shall be placed in their own Constitution, and the States have forgotten there responsibilities to this Constitution, and therefor to themselves, and this Congress has forgotten that they have any authority in these matters at all. Properly produced and properly excepted changes, to these amendments, and therefore this Constitution, are to the rights of this Nation, and these rights are nonnegotiable, and are not to be left improperly attended, by those authorities of this, or any other Judiciary, when the gravity of such opinions have overarched there own authorities.

  7. capitalggeek said,

    You’re right. ‘The People’ have forgotten lots of things. That their rights aren’t granted by the Constitution is my biggest pet peeve. I’m not so sure that I’m disappointed that congress, the states, and the very people have ‘forgotten’ their authority to amend the Constitution. Judging by the laws that do get passed, I wouldn’t be surprised if the ‘right’ to housing, transportation, employment, or healthcare ended up as amendments.
    Not that it matters. The courts have shown in Kelo that they can read ‘public use’ and what it really means is that your property is never really yours without the government’s continuing approval.

  8. JMB said,

    Although I am still of the belief that this Nation would not fail, if it could find the will to address itself, and that there will be no chance, but to fail, if we continue to allow government law to override constitutional restrictions, or continue to believe that none are needed were they are needed.
    I find your comments to be very fair and trustworthy Sr, and I hope some day, as you do, that this Nation returns to those freedoms that their people so rightly deserve. Thank you for your patience.

  9. capitalggeek said,

    I’m probably not as optimistic as you about the direction of our country. I see no way that the sheeple will do anything other than to continue to vote themselves largess from the public till. Until, of course, the till is empty. At which point, all of those that are dependent upon it will have serious problems. I’m not sure if the current banking/energy/food problems are leading us quickly to that day, or if they will just be a bump in the road to that eventuality.
    I’m working on a post concerning that, as others have done. Two of them are:
    Munchkinwrangler
    http://munchkinwrangler.wordpress.com/2008/03/17/canned-beans-and-canned-ammo/
    and
    Crankyprof
    http://crankyprof.blogspot.com/2008/03/timely-quoteand-my-paranoia.html

    I’ve been frequently reminded of the coming tribulation in Revelation 6 (violence,famine, disease, war) and the great desire of the people for a political savior.

  10. JMB said,

    It is very possible that until the till that contains our freedoms, is completely empty. That the people, or their State, representatives, or their representatives from the States, or even their representatives from Congress, will not act. The right to act, is not the same, as the right not to act, but these effects can have the same meaning.

    Thanks for the links, I will read them.

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