cushioncrawler
11-29-2006, 09:25 PM
How the NRA Rewrote the Constitution On Second Amendment, Reporters Side With Gun Lobby Against Supreme Court (By Howard Friel).
On April 5, 1996, the United States Court of Appeals for the Ninth Circuit handed down its ruling in Hickman v. City of Los Angeles. Ray Hickman had argued that the Second Amendment to the U.S. Constitution gave him a right to keep and bear firearms, and that this right was infringed by the city's refusal to issue him a permit to carry a concealed weapon. The Ninth Circuit rejected Hickman's claim: "We follow our sister circuits in holding that the Second Amendment is a right held by the states," the court said, "and does not protect the possession of a weapon by a private citizen."
The Hickman case is the most recent in an unbroken chain of federal decisions, spanning 60 years, ruling that the Second Amendment does not confer an individual right to possess firearms. Courts have consistently held that the amendment's language--"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"--only gives the states the right to maintain well-regulated militias, which since 1903 have taken the form of the National Guard.
Despite this clear legal history, the National Rifle Association for years has advanced the view that the amendment provides a fundamental right to private gun ownership that cannot be abridged by the passage of gun control laws. Despite its efforts, the NRA's interpretation of the Second Amendment has never passed constitutional muster in the courts; the group has litigated and funded several Second Amendment cases in federal courts, but has never won any.
Still, the NRA has managed to dominate political and journalistic discussions of the Second Amendment. While the NRA's interpretation of the Second Amendment is repeatedly cited in newspapers and on TV, the federal judiciary gets virtually no coverage of its definitive and binding rulings. News media coverage of the Hickman case is instructive: There was hardly any. Even though the decision is one of the most important in recent years on the Second Amendment, it went unreported in the New York Times, nor was it mentioned in the networks' evening newscasts.
The Second Amendment in Court
Modern jurisprudence on the Second Amendment is founded on United States v. Miller, a 1939 Supreme Court case concerning a person convicted for carrying a sawed-off shotgun across state lines in violation of a 1934 federal law. The defendant argued in lower courts that the restraint on firearms violated his Second Amendment right to keep and bear arms. The Supreme Court upheld the conviction, ruling that the Second Amendment offers no constitutional protection for individual ownership or purchase of a firearm, unless related "to the preservation or efficiency of a well-regulated [state] militia."
Every federal court since 1939 to hear a Second Amendment case has upheld Miller, despite repeated challenges over the years by gun-rights advocates. Brief excerpts from a few of many such cases since Miller illustrate the clear consensus in the federal judiciary on the Second Amendment's meaning:
"Since the Second Amendment right 'to keep and bear arms' applies only to the right of the state to maintain a militia, and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm," the Sixth Court of Appeals ruled in 1971 (Stevens v. United States).
"These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.... The Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated Militia,'" the Supreme Court reiterated in 1980 (Lewis v. United States).
The Hickman case decided this year followed these and dozens of other clearcut precedents. "This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment," the appeals court stated in its unanimous decision. "We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court.... Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show injury when this right is infringed."
On April 5, 1996, the United States Court of Appeals for the Ninth Circuit handed down its ruling in Hickman v. City of Los Angeles. Ray Hickman had argued that the Second Amendment to the U.S. Constitution gave him a right to keep and bear firearms, and that this right was infringed by the city's refusal to issue him a permit to carry a concealed weapon. The Ninth Circuit rejected Hickman's claim: "We follow our sister circuits in holding that the Second Amendment is a right held by the states," the court said, "and does not protect the possession of a weapon by a private citizen."
The Hickman case is the most recent in an unbroken chain of federal decisions, spanning 60 years, ruling that the Second Amendment does not confer an individual right to possess firearms. Courts have consistently held that the amendment's language--"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"--only gives the states the right to maintain well-regulated militias, which since 1903 have taken the form of the National Guard.
Despite this clear legal history, the National Rifle Association for years has advanced the view that the amendment provides a fundamental right to private gun ownership that cannot be abridged by the passage of gun control laws. Despite its efforts, the NRA's interpretation of the Second Amendment has never passed constitutional muster in the courts; the group has litigated and funded several Second Amendment cases in federal courts, but has never won any.
Still, the NRA has managed to dominate political and journalistic discussions of the Second Amendment. While the NRA's interpretation of the Second Amendment is repeatedly cited in newspapers and on TV, the federal judiciary gets virtually no coverage of its definitive and binding rulings. News media coverage of the Hickman case is instructive: There was hardly any. Even though the decision is one of the most important in recent years on the Second Amendment, it went unreported in the New York Times, nor was it mentioned in the networks' evening newscasts.
The Second Amendment in Court
Modern jurisprudence on the Second Amendment is founded on United States v. Miller, a 1939 Supreme Court case concerning a person convicted for carrying a sawed-off shotgun across state lines in violation of a 1934 federal law. The defendant argued in lower courts that the restraint on firearms violated his Second Amendment right to keep and bear arms. The Supreme Court upheld the conviction, ruling that the Second Amendment offers no constitutional protection for individual ownership or purchase of a firearm, unless related "to the preservation or efficiency of a well-regulated [state] militia."
Every federal court since 1939 to hear a Second Amendment case has upheld Miller, despite repeated challenges over the years by gun-rights advocates. Brief excerpts from a few of many such cases since Miller illustrate the clear consensus in the federal judiciary on the Second Amendment's meaning:
"Since the Second Amendment right 'to keep and bear arms' applies only to the right of the state to maintain a militia, and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm," the Sixth Court of Appeals ruled in 1971 (Stevens v. United States).
"These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.... The Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated Militia,'" the Supreme Court reiterated in 1980 (Lewis v. United States).
The Hickman case decided this year followed these and dozens of other clearcut precedents. "This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment," the appeals court stated in its unanimous decision. "We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court.... Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show injury when this right is infringed."