Supreme Court Holds Right to Bear Arms Applies to Individuals

Now.Imperfect writes "In its last day of session, the Supreme Court has definitively clarified the meaning of the Second Amendment. The confusion is whether the Second Amendment allows merely for the existence of a state militia, or the private ownership of guns. This ruling is in response to a case regarding the 32-year-old Washington DC ban on guns." This is one of the most-watched Supreme Court cases in a long time, and Wikipedia's page on the case gives a good overview; the actual text of the decision (PDF) runs to 157 pages, but the holding is summarized in the first three. There are certainly other aspects of the Second Amendment left unaddressed, however, so you can't go straight to the store for a recently made automatic rifle.

Comments

It's about damn time

[sabre86]

It has long amazed me how anyone could manage to construe the subordinate clause "A well regulated militia being necessary to a free state," as anything other than an explanation as to why the amendment was being included in the first place. It is clear that this clause is an introduction to the rest of the amendment: "the right of the people to keep and bear arms shall not be infringed." It's an even stronger prohibition on action than the First Amendment's "Congress shall make no law..."

Scalia and co, make this very point in their decision (found at http://www.supremecourtus.gov/opinions/07slipopinion.html -- a wonderful site for Supreme Court decisions. The site, really.):

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53. (a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22. ...
It's dead on.

On a related note, why don't new sites ever link to the actual decision? It makes no sense.

--sabre86

Re:It's about damn time

[Astro Dr Dave]

Read the opinion; there are limits to those arms protected by the 2nd Amendment. Here is an excerpt from Scalia's majority opinion:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35â"36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Elsewhere, he writes:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [...] It may be objected that if weapons that are most useful in military serviceâ"M-16 rifles and the likeâ"may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Breyer's dissent notes a logical problem with the majority opinion:

Nor is it at all clear to me how the majority decides which loaded "arms" a homeowner may keep. The majority says that that Amendment protects those weapons "typically possessed by law-abiding citizens for lawful purposes." Ante, at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as "the most popular weapon chosen by Americans for self-defense in the home." Ante, at 57; see also ante, at 54â"55. But what sense does this approach make? According to the majority's reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority's reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Re:Sweet

[Anonymous Coward]

The average /.r is male, and we are already allowed to bare chests. Thankfully, we don't go outside much, so other /.rs dont have to see our bare chests all that much. We are also sociophobic, so we don't have enough friends to take pics of us and put them online too.

Brietbart.com?

[sm62704]

How about a link to a real newspaper?

here
here
here
here (oops, my bad ;)
here
here
here
or how about one from a city that is directly impacted by the decision, like here?

Mayor Daley calls Supreme Court's gun-ban reversal 'a very frightening decision'
High court strikes down Washington D.C. law in ruling that could have Chicago implications
An angry Mayor Richard Daley on Thursday called the Supreme Court's overturning of the Washington D.C. gun ban "a very frightening decision" and vowed to fight vigorously any challenges to Chicago's ban.

The mayor, speaking at a Navy Pier event, said he was sure mayors nationwide, who carry the burden of keeping cities safe, will be outraged by the decision.

Chicago's handgun ban, which has lasted for more than a quarter-century, came under threat earlier in the day when the Supreme Court decided that Washington D.C.'s law against handgun ownership is unconstitutional.

In a 5-4 decision, the high court determined that Americans have the right to own guns for self-defense as well as hunting. The decision, which had been expected, is a win for gun-rights advocates and provides a better definition of the rights of Americans to own firearms.

Illinois gun-rights activists have said they expect to mount a quick legal challenge to the Chicago Weapons Ordinance.

Other city officials said they felt confidant that challenge would fail.

As someone who tries to avoid RTFAs, I was annoyed that the summary dodn't even HINT at what the actual decision was, obviously to drive traffic to the submitter's site.

I'm disappointed in you, timothy. I'm sure there were a lot more submissions than this one. Since this is Thursday, I hereby nominate you as "Aurthur Dent" (Monday is my Dent Day).

Why do I have to <p> on my paragraphs when I've selected "plain old text"??

Re:"you can't go straight to the store"

[i.r.id10t]

Well, he's right - the May '86 law still stands....

Re:fuck yes

[ptbarnett]

Exactly which people are to keep and bear Arms? Is it only the people of the Militia? For that matter, what Arms are they to bear? And for what purpose? It specifically mentions the "security of a free State". To whom would this security be against?

RTFD.

All of your questions are answered, if you choose to listen.

Re:Oh great...

[Anarke_Incarnate]

You mean that "SHALL NOT BE INFRINGED" part? Infringe

http://www.merriam-webster.com/dictionary/infringe

transitive verb1: to encroach upon in a way that violates law or the rights of another

Re:fuck yes

[i.r.id10t]

The people are the people, same people as the first, fouth, etc. amendments.

According to Miller vs. US (last SCOTUS 2A case, back in '34) ruled that the arms are arms that are common to the times (which is why Miller lost on his sawed off shotgun - they weren't in common military use).

And the security part? Its the security of being Free from a tyrannical government. Believe it or not, there have been armed revolts against The Government here in the US. And not just the Civil War. You may want to read about the Battle of Athens, Tenn. A revolt agains the local government with the underlying issue being Voting Problems (wonder how many remembered that in 2000 and 2004, and if I'll have an excuse to remind 'em in November this year) ...

Re:Who Goes to the Store for Guns?

[MBGMorden]

Not true. Even at 'gun shows' any firearm purchases *require* the same federal background check as if you purchased from a store. The 'gun show loophole' simply does not exist....you can not make an end run around state and federal laws by buying a firearm from a gun show. Depending on the state, you're not quite correct. In MOST states (exceptions are California for sure, and maybe 1 or 2 others that I'm not aware of), a sale between private individuals does not require any Federal NICS check. So I can take one of my rifles to a gun show, tote it around with a "For Sale" sticker on it, and if someone wants to buy it they can without background check.

DEALERS at Gun Shows and flea markets have to do the standard background checks, but you don't have to be a dealer to sell a gun. There's a hazy grey area on the volume you need to be moving before you're considered to be "engaging in the business of selling firearms" and hence in need of a dealer's license.

Not saying that I have a problem with any of this (uncheck private sales are fine by me), just saying that not "every" sale at a gun show needs a NICS check.

Re:Oh great...

[onecheapgeek]

Actually, the right of a mother to not have the government's nose in her medical records and decisions was upheld 7-2. But don't let facts in the way of your argument.

Re:Sweet

[multisync]

The average /.r is male, and we are already allowed to bare chests

So are females in most places.

Re:Kansas

[Astro Dr Dave]

If you can afford it... 18 USC 922(o) prohibits the transfer or possession of a machinegun which was not grandfathered, i.e. legally possessed before 1986. Scalia's opinion suggests that this ban would likely be upheld by the court.

Re:Who Goes to the Store for Guns?

[Anonymous Coward]

But that has nothing to do with any 'gun show loophole'. The fact is that in most states the sale of a firearm between two private individuals requires no background check. That holds whether the sale takes place in your living room, a parking lot, or a gun show. Might as well call this the "transfer of private property between two private citizens loophole'. Lot more accurate.

Re:Oh great...

[jfsimard79]

Quote: 'India didn't gain their independence through guns.' Yeah, but they also died by the thousands.

Re:Who Goes to the Store for Guns?

[MBGMorden]

Handguns, by Federal law, require a NICS check. Citation needed. In my state of SC, no sale between private individuals, INCLUDING handguns, requires a NICS.

Re:Oh great...

[i.r.id10t]

Don't forget the Battle of Athens, Tenn. While there were racial elements in the root cause, it was not a white vs. black thing.

(Voting issues in Tenn. in 1946...)

Re:Good; Gun "Control" is bad

[FleaPlus]

It just isn't really supported by the numbers [statemaster.com].

Thing is, the statistics you linked to are for gun deaths overall, which includes things like suicides (which account for ~50% of all gun deaths) and people shot by the police. The statistics look quite different if you only look at homicides.

Re:The melacholy of gun control laws

[Snocone]

And the militia is everybody. More specifically, able-bodied free male citizens between 18 and 45.

The *organized* militia aka "National Guard" is not the Militia to be well regulated, as you are probably thinking.

Since there was no organized militia when the 2nd Amendment was passed, how could it possibly refer to anything except the unorganized militia, that is, everybody?

Re:Oh great...

[amliebsch]

If I had to hazard a guess, I'd say it's because so many American men are obese - can't see their dick, let alone get laid, so they buy a gun and get a stupidly huge truck to compensate. But that's just, like, me opinion, man.

Hmmm, and here I was thinking it might have something to do with the U.S.'s armed revolutionary founding, or the historical significance of guns and frontier culture, or the philosphical importance of an armed citizenry. But no, you must be right, it's all about cocks.

Re:"you can't go straight to the store"

[i.r.id10t]

No, the May '86 law still stands, that is where new tax stamps for Form 4 transferrable full auto goodies for us civilians were cut off. Police & military can still request dealer samples, but they must supply a formal request on letter head for the Class 3 dealer to order one. And, then, that item can only be transferred to police, military, or another class 3 dealer that has a sample request letter.

FWIW you can still get the tax stamps for short barrel rifles (less than 16" barrel), short barrel shotguns (18" barrel), Destructive Devices (hand grenades, etc), silencers, and "any other weapons" (such as the cylinder fed 12 ga "street sweeper" shotguns). Actual process involves finding the item, affording it, buying it, and working with a class 3 dealer. You may need the local sherrif to sign off (or form a living trust to bypass this step), but you definately need fingerprint cards, passport photos, and some time. Recently (past year) the wait times on form 4 approvals have dropped dramatically, so a 4-6 week wait is now typical for paperwork processing.

Re:Sweet

[Mr_Huber]

Interestingly, the new D&D 4 rules have added 'radiant' as a type of damage.

Re:Sweet

[Anonymous Coward]

Where? Not in America

I don't know what part of America you live in, but in Canada it is legal for a woman to be topfree anywhere it is legal for a man to be.

Here's a page that discusses Nudity and the Law in Austin TX.

If you are curious about whether women and men enjoy equal rights regarding being topfree in public where you live, you might find this link helpful.

Analysis of the Heller Majority Opinion

[frodo527]

I read Scalia's majority opinion when I should have been working (haven't read the dissents). ;)

My initial impressions:

1. The Court held that the Second Amendment ("2A") protects an individual right, one not dependent upon membership in an organized militia. The right exists for otherwise lawful purposes, specifically noting that self defense is one of the bases for the right. The Court recognized the pre-existing nature of the right, as well.

2. Some restrictions of the RKBA are permissible. E.g., licensing is not forbidden by the 2A, but only when imposed in a manner that is not arbitrary or capricious. That would seem to disallow much of the discretion typically exercised by issuing officials in places like New York.

3. Outright bans of classes of arms in common use by the people are forbidden. This is a key point because it disposes of the frivolous argument that even if the 2A protects an individual right, it only protects the right to keep and bear arms of a type common in use during the 18th Century. In particular, the Court notes that handguns are in common use and overwhelmingly chosen by Americans for self defense. In dicta, the Court noted that machineguns could *possibly* be banned. However, it left open the argument that the reason machineguns are not in common use is because they have been so heavily regulated since 1934.

4. The Court declined to specify a standard for review in 2A-based challenges to gun control laws. For example, it will leave the matter of whether gun control laws must pass rational basis or strict scrutiny to later challenges. This wasn't unexpected.

5. The Court did not explicitly incorporate the Second Amendment against the states. However, it did cite several state cases in its decision supporting the idea that the 2A protects an individual right. This leads me to believe that the Court would be open to incorporation in a future case where a state law is challenged, e.g., Chicago's handgun ban. Again, this isn't totally unexpected, since the D.C. law which was struck down was a Federal matter, not a state law. The Court tries to craft most decisions narrowly.

In my opinion it is a sound legal decision.

Re:fuck yes

[CrimsonAvenger]

That is the decision of the courts. That is how they chose to interpret the constitution. As best I know, the court did not travel back in time to ask the writers of the constitution to clarify the message they were trying to convey when they wrote it.

Well, consider reading the Federalist Papers on the Bill of Rights. It tells you exactly what the writers of the Constitution thought about the issue, since the Federalist Papers were written by writers of the Constitution.

I note a single example:

What is the militia? The militia is the whole body of the people, except for certain government officials.

Oy.

[debrain]

Some illuminating gun statistics.

- Nine times out of ten, the gun that kills you is your own or belongs to someone you know.

- Nine times out of ten, the gun that kills your children and spouse is your own or belongs to someone you know.

Analysis - Owning a gun is not a preventative measure for the vast majority of gun deaths. In fact, owning a gun is magnitudes more likely to cause a fatality than random gun violence, and discouraging your acquaintances from owning a gun is in fact your best protection. For that relative rarity when it's a stranger's gun, maybe that person wouldn't have had a gun if there were sensible gun laws or attitudes. If America could reduce it's gun violence to random violence, it would be a reduction of 90%, and it would be doing very well. Owning a gun is not, nor has it ever been, shown to be a useful defensive mechanism. In my humble but correct opinion, the best defense against gun violence is living in a society that abhors gun ownership.

The consequence is obvious, and statistically correlates:

- You are four to ten times as likely to die of a gun-inflicted injury in the United States than other Western countries.

- Gun violence is one of the top ten reasons for death in the United States.

I believe that the rampant gun violence in the United States promulgates a society of fear, insularity and obstinate entitlement. It is wholly evil and backwards.

Further, gun ownership does nothing to prevent tyranny. It's the ability to coalesce en mass, and revolt as a general populace that controls governments' tendency towards totalitarianism. The prevalent gun ownership has clearly done nothing to deter the Bush administration's onslaught on freedom and rights. Gun ownership to protect freedom is a sexy idea, but utterly specious.

So what to do? Effectively removing guns from the streets ought to be a carrot-and-stick approach. The punishment for having a gun during a crime should be higher than without (but not so high that the perpetrator would choose to fight-to-the-death), but there should be an amnesty to turn guns and maybe even a minor reward for it.

I think what SCOTUS has done has been an assault on State sovereignty, as they have undermined the ability of States to self-govern. I believe they have misconstrued the Constitution of the United States, to the detriment of the ability of states to control peace and security, and to the benefit of gun manufacturers and their lobbyists.

Re:Oy.

[99BottlesOfBeerInMyF]

Analysis - Owning a gun is not a preventative measure for the vast majority of gun deaths.

You have logically misstated the problem. Most of us are a lot more concerned about being killed, more so than being killed with just a gun. The statistic that is relevant is if owning a gun is more likely to result in you or a member of your family dying than not owning one. For example, if a person breaks into your house and murders your whole family with an axe because you don't own a gun, and you are considering this in terms of "gun deaths" well that is not counted as a negative, despite whether or not owning a gun would have prevented it.

The consequence is obvious, and statistically correlates: - You are four to ten times as likely to die of a gun-inflicted injury in the United States than other Western countries.

Again, you're misinterpreting the data. Take Sweden. They have very similar gun ownership rates to the US, but still some of the lowest violent crime rates in the world. If you look at violent crime rates and strict gun control laws in general, you'll find there is basically no correlation at all. Well, overall there is a very slight, barely significant correlation between strict gun control and increased violent crime.

I believe that the rampant gun violence in the United States promulgates a society of fear, insularity and obstinate entitlement. It is wholly evil and backwards.

Your fixation on guns is blinding you. The US has a culture of violence that causes a lot of problems, but blaming it on guns is not supported by the evidence. The strongest global correlation with violent crime is wealth disparity. The US's wealth disparity is higher than most industrialized nations and increasing. Violent crime is right about where you'd expect if you factor in the problems of criminalized drug usage.

So what to do? Effectively removing guns from the streets ought to be a carrot-and-stick approach. The punishment for having a gun during a crime should be higher than without (but not so high that the perpetrator would choose to fight-to-the-death), but there should be an amnesty to turn guns and maybe even a minor reward for it.

All of these programs are already in place in DC, but it doesn't seem to have had much impact on crime. You know what would have an impact on crime? Socialized healthcare would reduce wealth disparity and likely decrease violent crime significantly. You don't see politicians trying to explain this though, because the causality is not simple and it doesn't prey on people's fears and get people emotional and afraid.

I think what SCOTUS has done has been an assault on State sovereignty, as they have undermined the ability of States to self-govern. I believe they have misconstrued the Constitution of the United States, to the detriment of the ability of states to control peace and security, and to the benefit of gun manufacturers and their lobbyists.

That's a fine opinion, although I disagree with it. I think anyone who tries to sell gun control and an anti-violence measure has either not not looked at the numbers or bought into intentionally misleading "gun crime" studies that misstate the problem in an attempt to spread fear and misinformation.

Re:Sweet

[rrkap]

Hey, at least they're usually kinda hairy which cuts down on the glare.

Re:Oh great...

[gorehog]

March on the White House to storm it eh?

Look at this:
http://en.wikipedia.org/wiki/Bonus_Army

That is only one example.
For instance, did you know that according to the supreme court there is NO expectation of protection against crimes by the police? They are there to maintain the peace, not to protect you. That's your responsibility.

The purpose of guns is not to protect your freedoms. That's what voting is for. The guns are to protect your person. To make the soldiers think twice before coming in. If you debate that look at the third amendment.

Essentially, the idea is that a democracy puts power in the hands of the people. Ask any political scientist about the political uses of lethal force. To have political power one must ultimately be willing to wield lethal force.

In short, yes, the point of all those guns is so crowds of angry citizens can overthrow their corrupt leaders. Whenever they want.

Re:Here's what I believe

[mlwmohawk]

Well, I believe that when I go to work, make a living, and adhere to certain societal norms that result in my ability to take of my health care needs being met, taking money from me at gunpoint against my will to meet the needs of people who fail to take care of their own health care needs is tyrannical.

Not tyrannical, not at all. We have a society, a community, and a nation. There is an amount of shared responsibility for the good of the society, community, and nation.

1st, not everyone can afford health care.
2nd, universal health care will raise your taxes but save you money. If you look at what you or your company pays for your health care, it will be reduced. Every nation with universal heath care pays less for care than we do and according to the UN have better care.
3rd, shared responsibility is the glue that makes society work. We no longer have the wild wild west.
4th, your neighbor's sickness or ill health cost you money. What are you going to do, let them die?

Re:Oh great...

[Anonymous Coward]

Excellent comment.

Those that refuse to join the military and put their life on the line are exactly the ones that the military is protecting. Those that refuse to bear arms will trust to those of us that do OR to their own powers of persuasion.

The guys that have the guns don't NEED as much protecting. They protect themselves. They protect the 1st amendment. Without the 2nd amendment, the only thing keeping the government from controlling every aspect of your life is the hope that calm, cool, rational discourse will sway the evil doer. LOL...talk the thug from mugging your wife and I will start to believe.

Anyone every wonder why big, muscular guys seldom get attacked? They can defend themselves.

Anyone wonder why Stalin and Hitler liked to confiscate guns? Maybe they were trying to protect the citizens from themselves?

I have often heard that if a cause for us to need to bear arms against our government ever arises again, it would be from the right. I really, really, doubt that is the case. In cases where the government took control, it has always been from the left. These are the people that gravitate towards government. Folk like Lenin, Hitler, Mao. When a single dictator takes power (versus just the head of a governing party), it has mostly been simply for power and because they could. Left and Right wing politics don't really enter into the picture.

Re:Sweet

[Tawnos]

Speak for yourself. I appear on a particular xkcd-guitar related website :P

Actuall Information

[Digital End]

In 2006, about 68% of all murders, 42% of all robberies, and 22% of all aggravated assaults that were reported to the police were committed with a firearm.
Roughly 400,000 crimes total

http://www.ojp.usdoj.gov/bjs/glance/guncrime.htm

How Are Victims Killed?

Homicide: 11,624 / 39% of All Fatalities
Suicide: 16,750 / 57% of All Fatalities
Unintentional Death (Accidental): 649 / 2% of All Fatalities

How Are Victims Injured?

Assault Injury: 43,592 / 68% of All Injuries
Unsuccessful Suicide Attempt: 3,352 (may be incorrect -- actual number may be larger, see CDC website) / 5% of All Injuries
Accidental Injury: 16,555 / 26% of All Injuries

http://washingtonceasefire.org/resource-center/national-firearm-injury-and-death-statistics
This site has a good number of statisics on it, broken up by age/race and so on...

I'm not really taking either side with this post, I'm just sick of unsupported facts being thrown around. From this data, my own opinion is "Wow, more people kill themselves with guns then other people."

I could care less if you have a gun, though I don't agree you should have enough to equip an army. More then anything, I personally just hate the fact that most people who are really all about having a gun are assholes. Gun owners (actuall good people) should focus their attention on shutting up gun assholes, then both Gun Owners and Non-Gun Owners would stfu about it all.

Re:Oh great...

[DnemoniX]

Why yes I can. The first the comes to mind is the American Revolution, maybe you have heard about it. The second in more recent times was the Soviet occupation of Afghanistan. Maybe you have heard about that as well. Sorry to burst your bubble but it has happened on several occasions throughout history.

Re:hopelessly outgunned...

[uniquename72]

Nobody objected to rounding up Japanese during WWII. Yes, they did.

Re:Oh great...

[hypnagogue]

If I understand correctly, the primary difference is that assault rifles are fully automatic.

You do not understand correctly. The Assault Weapon Ban did not target fully-automatic rifles. It targeted semi-automatic rifles with certain cosmetic features.

Fully-automatic rifles were banned in 1986, and only grandfathered pre-86 machine guns are currently in circulation. They were not in any way covered by the Assault Weapon Ban.

Re:Oh great...

[Atraxen]

I agree, but I'll add a relevant example. http://en.wikipedia.org/wiki/Kent_State_shootings

Re:Sweet

[orphiuchus]

I think the argument is that when the armed crook comes to rob a citizen, that citizen will be armed too. And, since we have already established that the crook is a crook, he or she(ok, he) is likely to be armed regardless of if its legal or not.

Re:hopelessly outgunned...

[Chris Burke]

History has shown time and time again that a large army is incredibly susceptible to being stalled out or ground away by guerilla warefare.

Indeed, and history has also shown that the only effective military counter to an entrenched insurgency is genocide.

The Romans did it to their conquered territories that rebelled, wiping out villages and cities entirely. The British did it to the Boers, putting the women and children into concentration camps (first usage of that term) where they starved to death, until the rebels gave up.

So the question you have to ask yourself is: Would the U.S. military be willing to do it to their own people? Simply to save the government that would give such orders?

Breyer explains this very explicitly

[ODBOL]

From page 4 of Breyer's dissent (117th page in the PDF file):

"colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the 'right to keep and bear arms,' whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home."

The majority relied on law and convention prior to the 2d amendment (in fact, way back into English history) for the notion that the right to "keep and bear arms" is a right to use arms in self defense. Nothing in the 2d ammendment expresses such a purpose explicitly---if there it is implicit in the interpretation of "to keep and bear arms." So, Breyer points out that essentially the same constituency that established the constitution and the first 10 ammendments (ratified in 1791), had passed regulations affecting the use of weapons in self defense under constitutional provisions of their times, which were stronger than the 2d amendment. Some of these constitutional provisions were the unwritten English provisions that the majority insisted supported such a right. Others were the existing state constitutions:

"Pennsylvania, like Massachusetts, had at the time one of the self-defense-guaranteeing state constitutional provisions on which the majority relies." (p. 7 of Breyer, 120th page of the PDF file)

In other words, according to Breyer, the majority relied on law preceding the 2d amendment to infer interpretations that should be applied to that amendment, yet ignored evidence that contemporary jurisprudence had not interpreted those laws in the way relied on by the majority:

"Massachusetts residents must have believed this kind of law compatible with the provision in the Massachusetts Constitution that granted 'the people ... a right to keep and to bear arms for the common defence'---a provision that the majority says was interpreted as 'secur[ing] an individual right to bear arms for defensive purposes.' " (p. 6 of Breyer, 119th page of the PDF file)

Katrina

[scorp1us]

Few people know that the citizens of New Orleans had their firearms confiscated right before the hurricane. This is only a few years ago.

Our own government stripped people of the arms they were using to protect themselves.

Re:First hand experience

[Darth]

you are correct that that is not proof it wasn't working.

The fact that they had a gun ban in place for over 30 years and still had one of the highest gun related crime rates in the country shows it wasn't working.

Re:Oh great...

[Moofie]

"Burst my bubble"? You made my point!

Golly, I really didn't think I was being that abstruse. I was DISAGREEING with my parent poster in what I thought was a humorous, sarcastic way.

Re:Oh great...

[Grym]

According to wikipedia, the military's shift from larger rifle calibers to smaller ones like the .223 had to do with the results of a study called project SALVO:

"The conclusion was that most combat takes place at short range. In a highly mobile war, combat teams ran into each other largely by surprise; and the team with the higher firepower tended to win. They also found that the chance of being hit in combat was essentially random -- that is, accurate "aiming" made little difference because the targets no longer sat still. The number one predictor of casualties was the total number of bullets fired. Other studies of behavior in battle revealed that many U.S. infantrymen (as many as 2/3) never actually fired their rifles in combat. By contrast, soldiers armed with rapid fire weapons (such as submachine guns) were much more likely to have fired their weapons in battle. These conclusions suggested that infantry should be equipped with a fully-automatic rifle of some sort in order to increase the actual firepower of regular soldiers. It was also clear, however, that such weapons dramatically increased ammunition use and in order for a rifleman to be able to carry enough ammunition for a firefight they would have to carry something much lighter. Existing rifles were poorly suited to real-world combat for both of these reasons. Although it appeared the new 7.62 mm T44 (precursor to the M14) would increase the rate of fire, its heavy 7.62 mm NATO cartridge made carrying significant quantities of ammunition difficult. Moreover, the length and weight of the weapon made it unsuitable for short range combat situations often found in jungle and urban combat or mechanized warfare, where a smaller and lighter weapon could be brought to bear faster. These efforts were noticed by Colonel René Studler, U.S. Army Ordnance's Chief of Small Arms Research and Development. Col. Studler asked the Aberdeen Proving Ground to submit a report on the smaller caliber weapons. A team led by Donald Hall, director of program development at Aberdeen, reported that a .22 inch (5.59 mm) round would have performance equal to larger rounds in most combat. With the higher rate of fire possible due to lower recoil it was likely such a weapon would inflict more casualties on the enemy.

-Grym

Re:Oh great...

[Dun Malg]

You don't have to go back 230 years. 1946 seems long ago enough.

As for the parent post, The military takes an oath to uphold and protect the constitution above all other things. Why this seems a little obvious to me, I should say that I don't think members of the military would sit back and watch this happen while following orders to execute it. It is more likely that good portions of the military would side with the civilians.

As a former member of the US armed forces, I can pretty much guarantee that your analysis is spot-on. It's one thing for the FBI to send a few National Guard yahoos to gas some Wacky Waco cultists, but if they tried to send the 101st ABN division into Hometown USA to put people under martial law, easioly half those guys would say "screw that".

Re:hopelessly outgunned...

[NMerriam]

Well, if you want to have a chance to win, you kind of do.

That depends greatly on the definition of "win". A tank is great at destroying stuff and holding ground, but sooner or later the people in the tank have to get on with some sort of post-war activity, at which point they become vulnerable again. Unless you just want to populate the occupied country with sentient tanks that eat dirt, there's no specific need for an opposition force to have an anti-tank strategy.

Guerrilla warfare isn't about winning a swift tactical victory, it's about making life unbearable for your opponent. Your entire anecdote is about tactical success, and seems to dismiss merely "political" attacks as somehow meaningless, when of course the entire purpose of war is to further a political goal, so if you're able to do that more efficiently than the other side, you're "winning", regardless of the tactical results. You can rake all the insurgents you like from rooftops, if you're making new ones at the same time, you're losing ground (since it takes you more resources to occupy than it does for them to resist).

I don't know how you came to the conclusion that guerrilla warfare is a method guaranteed to lose. There are numerous governments today that were put in place (at least initially) by guerrilla forces. Fidel Castro certainly thinks it is possible to wage a successful guerrilla war against a US-supported government. Things turned out pretty well for Mao.

Re:Crooks are unarmed

[nicolastheadept]

about 20,000 firearms offences a year

Most of those don't actually involve firearms, that figure includes imitations and airguns etc.

Re:Crooks are unarmed

[Fjandr]

http://news.bbc.co.uk/1/hi/uk_politics/2656875.stm

A BBC report from 2003 detailing the narrowing gap in crime rates as US crime rates fall and UK crime rates rise.

Also telling is the 200-year comparison showing that when firearms were virtually unrestricted in both countries, the choice of weapons to commit murder were different. The use of guns to commit murder is simply a societal "choice," and has no bearing on how many murders are actually committed. The availability of weapons to criminals has virtually no impact on crime rates. The availability of weapons to people who are otherwise law-abiding, on the other hand, does have a measurable impact on those people being able to protect themselves.

Re:Oh great...

[rohan972]

That was kind of my point.
I realized that part way through making the post but thought it was still worth clarifying. It isn't just demoralization though, there is quality of kills vs quantity (disrupt command structure), disruption to supply lines (.50 BMG round in engine block of supply trucks for example) destruction of other equipment.

Of course, the average citizen doesn't have the skills of a sniper, but 40 million people willing to take 1-2 shots then disappear would be exceedingly difficult to defeat. Especially by sending their sons/brothers against them.