Handsome but not home free
Nov 6, 2007 Lex scripta, Politics and Poker
A New York state criminal court judge, not unexpectedly, rejects the decision of the U.S. Court of Appeals for the District of Columbia in Parker v. District of Columbia, and rules that Rashawn Handsome has no “a constitutional right to bear arms [that] protected his keeping three unlicensed handguns in his
apartment,” according to the New York Law Journal (subscription required) :
In refusing to follow Parker, Judge Gerstein noted that the ruling’s conclusion is at odds with the holdings of nine other circuits and the last U.S. Supreme Court decision to address the issue, U.S. v. Miller, 307 U.S. 174 (1939). All those rulings concluded that the Second Amendment, rather than creating a personal right to bear arms, circumscribes potential efforts by the federal government to curb state militias.
While the Second Circuit has not directly addressed the issue, Judge Gerstein wrote, it observed in a 1984 ruling that “the right to possess a gun is clearly not a fundamental right” (U.S. v. Toner, 728 D.2d 115).
The U.S. Supreme Court in Miller and the nine circuits agreeing with it, Judge Gerstein noted, all considered the prefatory clause of the Second Amendment controlling.
In its entirety, the Second Amendment reads: “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.”
Mr. Handsome’s argument relying on the Parker case to overturn New York’s law “requires rejection of viable Supreme Court precedent and half of the [Second] Amendment’s text,” Judge Gerstein wrote.
The New York decision is here. It may not do justice to the learned opinion or the level of complexity surrounding this issue, but it is certainly a full-bore gun control opinion. In short, it rejects the assertion that there is any independent right to bear arms except in connection with the establishment of a “well-regulated militia” or that the right to bear arms could be numbered among the fundamental individual rights of the Constitution such as free speech. On the one hand, the New York Times quoted former Chief Justice Warren Burger as saying, “The Second Amendment doesn’t guarantee the right to have firearms at all,” and calling the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.” In the same article, however (hat tip to Instapundit), no less a liberal light — and considerably more respected legal scholar than Burger, who was not really regarded as an intellectual heavyweight — comes to the exact opposite conclusion.
Judge Gerstein’s opinion does note that, unlike the D.C. statute that was overturned, the New York statute does not purport to be a total ban, merely a (draconian) licensing and regulation scheme. That means that even if, in the fantasy world of gun rights enthusiasts (such as myself — why, some day I may even see a real gun thingy up close), the Supreme Court were to take up and affirm the Parker decision, this New York law would probably be unaffected.
November 6th, 2007 at 2:14 pm
The second amendment is poorly worded – at least from the modern perspective. It could be worded thus:
The right of the people to keep and bear Arms shall not be infringed because a well regulated Militia is necessary to the security of a free state.
But that doesn’t help because you are creating an absolute for an unclear reason a well-regulated militia – whatever that means. There’s no mention of “militias controlled by the individual states.”
Sounds to me like Handsome may have failed the “well regulated” part but Gerstein stretched to ban guns.
November 6th, 2007 at 5:50 pm
Of course, I’m no lawyer. And I AM biased, but…
There are many arguments, such as other writings by the framers, constitutions of various states, etc, that support the view that the Second Amendment was intended to cover individual rights. But setting all those aside, I think context alone makes their true intentions clear.
Read on its own, the Second Amendment is confusing, and the door is open for twisting its meaning. But when considering the Bill of Rights in its entirety, things become clear. It’s not titled “The Bill of Rights” for nothing…..
All nine other Amendments in the Bill of Rights clearly pertain to protecting the rights of individuals. So why would they throw one oddball state’s right into this Bill?
IMO, the argument that the Second Amendment was intended to give the states the right to maintain their own militias makes no sense whatsoever when considered in the context of the Bill of Rights as a whole.
November 6th, 2007 at 10:12 pm
[...] Handsome but not home freeAll those rulings concluded that the Second Amendment, rather than creating a personal right to bear arms, circumscribes potential efforts by the federal government to curb state militias. While the Second Circuit has not directly …likelihoodofsuccess.com [...]
November 7th, 2007 at 1:27 pm
As a Jewess in the US, I want to say that JACKASSES like “Judge” Gerstein make me ashamed to be a Jew. Let us ALL work to put the 2nd Amendment FIRST!
November 7th, 2007 at 4:48 pm
The problem is that Miller is constantly misrepresented.
Miller did not find that the individual did not have a right to bear arms (ostensibly because the person was not a part of a militia). What they found was that the weapon in question (Sawed-off Shottie) was unsuitable for being a part of the militia, and as such, the weapon (not the person) was not covered by the 2A.
IOW, the correct interpretation of Miller is that the second amendment only protects the rights of the people to own military style weapons.
Thus, owning an M-16 is protected, but owning a cross-bow isn’t.
November 7th, 2007 at 5:30 pm
“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.”
Lets reword it a bit.
“A well fed Militia, being necessary to the security of a free state, the right of the people to keep and eat food, shall not be infringed.”
The question? Does the revised wording mean only active mility/ military personal have the right to keep and eat food?
November 7th, 2007 at 6:32 pm
No, Joe, but it would raise a serious question about whether the provision itself protects, grants or what-have-you-is-a-legal-basis for providing that right.
I think the stronger question is, if they wanted to write, “A well regulated Militia, being necessary to the security of a free state, the right of a well regulated Milita to keep and bear Arms, shall not be infringed,” why didn’t they?
November 7th, 2007 at 10:56 pm
“There are many arguments, such as other writings by the framers, constitutions of various states, etc, that support the view that the Second Amendment was intended to cover individual rights. But setting all those aside, I think context alone makes their true intentions clear.
Read on its own, the Second Amendment is confusing, and the door is open for twisting its meaning. But when considering the Bill of Rights in its entirety, things become clear. It’s not titled “The Bill of Rights” for nothing…..
All nine other Amendments in the Bill of Rights clearly pertain to protecting the rights of individuals. So why would they throw one oddball state’s right into this Bill?”
Although technically not a modern legal observation in the traditional sense (it’s a shame that so many modern legal observations are totally devoid of tradition, but, c’est la vie), it is an extremely acute and logical psychological and political observation about what the framers were shooting for (pun intended). After all, all rights not expressly given in the Bill of Rights to the Federal Government are reserved for the States, and the people. (Also such matters shall not prejudice the States.) In other words, if it is not expressly a right granted to the Federal Government, then by not mentioning it, it goes to either the States (for them to conclude) or for the people, by default. By their own logic (the tenth) the framers would not have even had to mention the idea had they not been intending to publicly implicate and imprint the matter as a de facto limitation not upon either the States or the people, but upon the Federal government. Just like the other amendments, all that would have really need to have been said, was the tenth, it being the legal and philosophical Coda encapsulating the entire purpose of limited government. (All the other rights are implied in the tenth.) But they saw fit to imply that certain individual rights were worth mentioning conspicuously enough and publicly enough as to leave no doubt of the full implications of the tenth. Or as Ron put it, it is a right expressly drawn to the people, as the Tenth implies by exclusion, linguistically, philosophically, governmentally, politically (in the widest sense of the term), and Constitutionally. Or put yet another way, what they did say was (negatively) since we’re mentioning it in writing, the Federal government has no fundamental business in this matter, it is one reserved for the people. You correctly deduced that because the Tenth restricts by exclusion what powers are granted the Federal government, and since the rights mentioned in the Bill of Rights are publicly mentioned to defend against encroachment of government upon individual liberties (that is to say, practically speaking, States don’t really have Rights, they have powers), then by implication they (the Rights declared) are all related in functional aspect.
So, I award you the Hawkeye Farsight, First Class.
Use it well my friend.
Use it well.
November 7th, 2007 at 11:51 pm
Thanks, Jack!
I appreciate your award, and what you are saying.
But still, I sometimes wish I could award you an editor…
November 8th, 2007 at 9:39 am
Don’t sweat it.
I’m working on it.