TriggerFinger


The Second Amendment


This is the meat of the case -- the argument (or at least the first part of that argument) that the 2nd Amendment presents an individual right to keep and bear arms.
THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION PROTECTS AN INDIVIDUAL?S RIGHT TO KEEP AND BEAR ARMS, EVEN WHILE NOT ENGAGED IN STATE SERVICE.

Justice Story argued that ?[t]he right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.? 3 Joseph Story, Commentaries on the Constitution, p. 746 (1833). An examination of the Second Amendment?s history, text, and structure, separately and within the context of the Constitution as a whole, confirms ?that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as [an ordinary] pistol . . . that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.? United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001) (citing United States v. Miller, 307 U.S. 174 (1939)).
This reading of Miller agrees with my own.
 Professor Tribe agreed in his treatise:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is . . . to arm "We the People" so that ordinary citizens can  participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities . . . Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes . . . a right that directly limits action by Congress or by the Executive Branch . . . . 1 Laurence Tribe, American Constitutional Law, n.221 at 902 (3d ed. 2000) (emphasis added).
There's not much to be said that isn't already in the brief.  The details of the argument will follow.

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This entry was published Wed Jul 12 23:07:54 CDT 2006 by TriggerFinger and last updated 2006-07-12 23:07:54.0. [Tweet]

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