Parker/Heller update
Kopel on Significant Developments in DC Case on Handgun and Self-Defense Bans notes:
It appears that DC has decided that its long-gun self-defense ban is constitutionally indefensible. The most logical inference is that DC (despite statements by the Mayor at press conferences) has concluded that it cannot convince the Supreme Court that the Second Amendment is not an individual right. DC is retreating to position that the individual Second Amendment right is not violated by a handgun ban, as long as individuals can possess other guns.
September 17th, 2007 at 2:31 pm
The real question is: If the District believed/believes there is no right to handguns, then why were ANY of them grandfathered in 1976?
Assuming the SCOTUS accepts the Miller test (Is the arm in common use and useful to the militia?) as precedent. This case is looking like more and more of a slam dunk!
September 17th, 2007 at 5:34 pm
Uh, the word is “infringed”, as in “…shall not be infringed.”
It doesn’t say, “…shall not be obliterated, though massive restrictions are allowable if not encouraged.”
“Infringed”. Look it up (you know, in one o’ them there “dictionary” thingies).
September 17th, 2007 at 7:21 pm
Blast. If they go at it from that angle, would that not prevent the Supreme Court from making a decisive ruling on the individualness of the Second Amendment? I do not know about the rest of you all, but that is what I was primarily looking for from this case…
September 17th, 2007 at 9:43 pm
nah, this still won’t get cert granted. the come-back is too obvious; D.C. residents would have to either become prisoners in their own homes, or be granted the right to carry long arms openly slung over their shoulders down the streets of Washington. that lawsuit might get cert granted in turn, but would just land us back at square one. so unless the supremes are willing to blatantly stall for time, they’ll refuse to take the case.
September 17th, 2007 at 10:15 pm
Lyle, Xrlq says that the pre-1800s definition of infringed is significantly different than the modern day version, and much closer to that sorta meaning than we think today.
I’m not sure I agree with his interpretation as to registration — the courts have rather unanimously agreed that any laws requiring registration of rights in the first amendment or state constitutions pass strict scrutiny — but at least on the matter of originalism I’m certain he’s several times the scholar I am.
September 17th, 2007 at 11:08 pm
Thanks Gattsuru. Having recently batted around the concept a time or two of late, I thought it best to try to dig up a link to support the older definition. Unfortunately, the best I could come up with this this, which made my overall point about the old vs. new definitions of “infringe” but provided less guidance than I had hoped for with regard to the time line. One silver lining for the gunnies: the modern definition goes back further than I thought (1760), making it at least possible, though not IMHO probable, that the modern definition could have been the intended one in the Second Amendment. Then again, even the modern definition of “infringe” may not go as far as many Second Amendment purists would prefer. Under the modern definition, one can copy a good chunk of a copyrighted work, even over the objections of the holder of that copyright, without having been deemed to “infringe” it.
Also of note: apparently the medieval Latin “infringere” (break or crush) derives from real-Latin “in- + frangere.” From this, I think we can safely deduce that any law that does to the RKBA what a brick wall does to a “frangible” bullet clearly violates the Second Amendment, but anything less is, at a minimum, debatable.