Posted by Brad @ 10:07 am on March 19th 2008

D.C. vs. Heller

Speaking of The Liberty Papers, their coverage this week of the oral arguments in the case of D.C. vs. Heller, the handgun ban case, is great. Check out their posts here and here.

As they note, the arguments were surprising in that they were pretty good indicators for we libertarians. Many worried that the Supreme Court, which hasn’t looked at a second amendment case in years, would side with the view that has almost become conventional wisdom on the appeals circuit, that being the the 2nd amendment only refers to militia, i.e. the right to bear arms is a collective, not an individual, right. While the decision won’t come down until probably June, at least four of the justices in the oral arguments very clearly indicated that they felt that was poppycock. The contentious issue is what constitutes reasonable regulation of that right, but thankfully, the battleground does not appear to be over a reimagining of the most basic premise of the 2nd amendment, as it’s commonly been understood for hundreds of years. Most of the analysts, at least on the basis of the oral arguments, expect that while the case will likely help codify regulation of the right to bear arms (and that could be good or bad, depending), it will almost invariably be a re-affirmation of it as well, in the core sense.

To view a transcript of the oral arguments, click here (PDF).

To skip right to the expert analysis, click through to ScotusBlog.


  1. What most people have forgotten is what a militia was during the time the amendment was written. It was a private security force, made up of individuals hired by a prominent landholder or businesses. Anyone could basically start a militia and sell their services. Since anyone could start a militia, this has always been an individual right.

    The other thing people don’t seem to understand is that the amendment doesn’t exist so we can defend ourselves and home against others, that is what the laws, polices, and courts are for. Nor does it give us an implicit right to hunt, if we had a right to hunt we could freely violate personal property in the exercise of that right. What the second amendment does do, is gives us the right as individuals to form a militia of like minded people and rebel against the established government for what ever reason we feel necessary.

    To back that claim up, the government has always maintained it had the right to squash any rebellion, but never once have they said we don’t have the right to do it.

    Comment by brad — 3/19/2008 @ 10:55 am

  2. brad, I’m going to have to change your username because one of the writers is ‘Brad’. To what would you like it changed? Well, it’ll change what you appear as (which you can actually change yourself, I think).

    Comment by Adam — 3/19/2008 @ 11:06 am

  3. Does this mean Montana won’t be seceding?

    Comment by Redland Jack — 3/19/2008 @ 11:19 am

  4. Redland Jack, yep, it looks like we’ll remain a 50-state nation. However, you’ll have to wait until June to know for certain because that’s when the actual decision comes down.

    Comment by Cameron — 3/19/2008 @ 11:23 am

  5. There can be only one.

    Nor does it give us an implicit right to hunt, if we had a right to hunt we could freely violate personal property in the exercise of that right.

    While I don’t disagree that “right to hunt” isn’t a constitutional right (well, at least not in the positive sense), that’s a pretty weird read on it. Hunting doesn’t explicitly mandate trespassing without permission. That’s like saying we don’t have freedom to travel for the same reason (indeed, at least that would be a much clearer line of causation).

    Incidentally, I think saying we have a right to arm ourselves to be able to defend against government but not a right to defend against non-government invaders is a pedantic point more than anything. In fact, that would lead to a MORE liberal interpretation of the regulation of the right, as, one presumes, you’d need a lot heavier firepower to defend against a SWAT team than a burglar.

    Comment by Brad — 3/19/2008 @ 11:46 am

  6. Actually, around here, ‘hunting’ does appear to mean going onto unposted property. Also I gather that if you wound an animal that does make it into private property that’s posted, you can still go onto it in order to finish it off.

    I’m not an expert on the local laws on hunting, however (although I guess that I could go and buy myself a rifle and take it up).

    Comment by Adam — 3/19/2008 @ 12:00 pm

  7. Also, the idea that you’ll be allowed to own arms that would be of any significant use defending yourself against the forces of the US government seems pretty unlikely to me. You’d need a lot more than handguns and rifles and yet I don’t see a lot of the NRA and their like promoting rpg and bazooka ownership. What about home landmines? Anti-aircraft missiles?

    Comment by Adam — 3/19/2008 @ 12:02 pm

  8. I’ve never, ever heard of “right to hunt” being taken to mean a usurping private property rights. People hunt on public land or private land on which they have permission. If they hunt on public land in which it’s not okay to hunt, or private land on which they don’t have permission, they can, and do, get cited for it (or, in the case of private property, shot), and I’ve never even heard of that being challenged.

    Right to hunt means “right to kill animals for sport”. I’ve never in my life heard a sportsman claim that his right to hunt means he can trespass wherever he likes (and indeed, hunters tend to be about the most vocal of private property advocates around).

    Comment by Brad — 3/19/2008 @ 12:03 pm

  9. I’m not making comments about what ‘hunting’ means in general, I’m saying what my understanding is of how it works, in practice, here (they certainly should ask permission before going onto private property), in particular my understanding of following a wounded animal onto private property.

    Comment by Adam — 3/19/2008 @ 12:11 pm

  10. My biggest objection, incidentally, to the whole guns debate is the utter crap spouted endlessly by each side. It’s the most intellectually vacant debate in modern American politics.

    Comment by Adam — 3/19/2008 @ 12:13 pm

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