Majority of Hill Stands Against D.C. Gun Ban
Members to File Friend-of-the-Court Brief in 2nd Amendment Case Before Justices

By Robert Barnes
Washington Post Staff Writer
Friday, February 8, 2008; Page A02

A majority of the Senate and more than half of the members of the House will file a brief today urging the Supreme Court to uphold a ruling that the District's handgun ban violates the Second Amendment.

Sen. Kay Bailey Hutchison (R-Tex.), who led the effort to file the friend-of-the-court brief, said her staff could not find another instance in which such a large portion of Congress had taken a position on an issue before the court.

"This court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the amendment guarantees the personal right to possess firearms," their brief contends.

"The District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable."

District of Columbia v. Heller, scheduled for argument March 18, offers the Supreme Court a chance to settle years of debate over whether the Second Amendment -- "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" -- guarantees an individual right to possess firearms or a "collective" civic right related to military service.

Last spring, a panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2 to 1 that the right is an individual one, and because handguns should be considered "arms," it is unconstitutional to ban them. The District has the nation's most-restrictive law.

The Bush administration, in a brief filed by U.S. Solicitor General Paul D. Clement, said such a categorical approach could endanger federal gun control measures, such as a ban on private possession of new machine guns. Clement proposed that the court recognize an individual right but send D.C.'s law back to lower courts to determine whether it is an unreasonable restriction.

Hutchison and Sen. Jon Tester (D-Mont.), who spoke at a Heritage Foundation event yesterday, said the court could find D.C.'s law unconstitutional without another trip through the courts and without endangering Congress's ability to pass other gun control legislation, such as banning assault weapons.

All Senate Republicans except three -- Virginia's maverick Sen. John W. Warner was one of the missing -- signed on to the brief. Nine Democratic senators -- Virginia's other maverick, Sen. James Webb was among them -- joined the effort. The total was 55 senators and 250 House members, 68 of whom were Democrats.

Webb campaigned in 2006 as a strong supporter of the Second Amendment. Warner said in a statement he stayed out of the case because of respect for home rule.

"While the District of Columbia is not a state, it operates under a framework of laws enacted by the Congress which gives its elected leaders the duty to advocate the positions and interest of its citizens before the federal judiciary," he said.

Virginia will file with a large number of other states on behalf of those challenging D.C.'s law. Maryland has joined a smaller group of states urging the court to reverse the lower court's opinion, and the state's two Democratic senators did not join Hutchison's brief.

The House voted to overturn the D.C. ban in 2004, but supporters failed to muster enough votes in the Senate.

This is a tricky one. If you win on the specifics, you lose on the principle.

I'm not happy with this case being before the current Supreme Court. If they decide that the right to keep and bear arms is "collective" and doesn't reside in each individual, what will that principle mean to other rights, like freedom of speech, speedy and public trial, and freedom from unreasonable search and seizure?

"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"

That's correct. I don't think anyone construes the Second as allowing outlaw militias to operate as death squads and laws unto themselves.

However, you haven't answered my question. What does the "Shall Not" in the amendment actually forbid?

Does that not then also mean they might well regulate their firearms?

They can set minimum standards, sure.

Why not set any standard they want?

To the extent that they don't infringe upon the right to keep and bear arms, sure.

Yes, but a few word earlier it said well regulated.
Is this not in conflict?

No. Congress already has the power to regulate the militia (see article I). The second amendment just means that a militia (but not an outlaw band) is so important that Congress shouldn't be able to fuck it up by banning guns.

Then if I'm not a member of an officially recognized militia, such as a member of some outlaw band, I should not have the right to have an keep a weapon with the intention of using it to protect my country from attack, if need be?

1) You still haven't answered my question.
2) If Congress disbands all militias, would anyone have any right to keep and bear arms?

Sorry, I didn't think it was a question that really needed an answer.

My point Happy, is that the first part of the ammendment seems as though it may be in conflict with the last part.
You may wish to focus on the last part, but that doesn't make the first part just go away!

SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

OK, so then if you have ever broken the law, orbeen a member of any subversive organization, or have ever publicly advocated violence, then you don't qualify to own a gun? Isn't this then part of regulating the gun and gun ownership?

If you've been convicted of a crime, and as part of your sentence been barred from gun ownership, then you don't have the right anymore.

The second amendment protects gun ownership. It does not protect extortion, murder, terrorism (KKK but also al-Q, take your pick), etc. That's all. Don't try to read more than that into fairly plain, straightforward language.

We can argue about the particulars, but unless you're going to address the general, I don't see the point.

The particulars Happy, are exactly the point.
The second amendment is in todays reality, ambiguous, which is exactly why the SCOTUS has to "interpret" the law.

What in it is ambiguous? What part of "RIGHT" do you not understand?

Seems to me that you are splitting hairs to suit your argument, and though valid, it's still hair splitting, and as such, the anti-gun crowd can equally split these same hairs to suit their beliefs.

What hair am I splitting? SHALL NOT BE INFINGED means what it says. Period. Gun bans are unconstitutional, period. And you still haven't addressed any of my points, so I'm getting damned tired of answering yours.

Personally, I'm in a conundrum. I live in a rural part of Washington state in which gun violence is very minimal. However it seems quite clear to me that in some parts of the country hand gun violence is exceptionally high.

These are the parts where guns are illegal. DC banned guns and their crime rate skyrocketed. Illinois enacted the FOID, and murders in Chicago more than doubled. If we ban handguns in Washington, the crime rate will probably do the same here too.

And when we look specifically at cases in which people who should not have, did get access to guns and did act out heir violence, and when we look at cases in which violence happened specifically because of the ready available hand gun, and additionally the instances of violence in the home perpetrated by members of the same family, when looking at these issues, one tends to wonder what we can do to reduce the carnage? At what point does society accept that something is out of hand?

You'd prefer if they used machetes instead? Cho could have killed a lot more people if he'd used kerosine instead of a gun.

It is a basic function of society to protect both it's self as well as it's membership. When a point is reached in which the protection becomes the liability, then society must rethink it's priorities.

Well, you're basing this on a whole host of false assumptions and weak logic. But if you really believe that, then go ahead and try to repeal the second amendement and section 24.