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September 19, 2009

Another prominent athlete presents another potential Second Amendment test case

Regular readers know that I was disappointed that Plaxico Buress did not assert a serious Second Amendment claim after being charged and prosecuted in New York with serious crimes based on his possession of a gun for personal self-defense (details here and here and here).  Now, as detailed in this Washington Post article, another prominent athlete present another potential Second Amendment test case:

A D.C. area native-turned-NBA player was arrested in Prince George's County on Thursday after a police officer who pulled him over on the Beltway found that he was carrying three loaded guns, authorities said.

Delonte West, 26, a graduate of Greenbelt's Eleanor Roosevelt High School and a guard for the Cleveland Cavaliers, was traveling north on the Beltway in a three-wheeled motorcycle called a Can-Am Spyder when he cut off a Prince George's canine officer near Route 214, authorities said. The officer pulled over West for making an "unsafe lane change," police said, and when the officer approached the motorcycle, West told him he had a handgun in his waistband.

That prompted the officer to call for backup and search West's vehicle. He found three guns -- a Beretta 9mm in West's waistband, a Ruger .357 magnum strapped to his leg and a shotgun in a guitar case slung over his back, said Maj. Andy Ellis, a spokesman for the Prince George's police.

Police charged West with two criminal counts of carrying a handgun for the Ruger and the Beretta, and issued him a traffic citation for driving "in excess of reasonable and prudent speed," court records show. Ellis said West was within his rights to carry the shotgun.

It is not clear why West was so heavily armed or why he was traveling alone in the Largo area at 10 p.m. on a Thursday, Ellis said. West's father, Dmitri West, said, "All I can say is Delonte was looking behind his back and protecting himself." He said his son was looking out for both specific people and because he was generally concerned about his well-being as a high-profile athlete. He declined to say who might be targeting the NBA star. "Bottom line is there's a lot of not-too-nice people out here," Dmitri West said....

Police arrested West and seized his guns and his motorcycle, Ellis said. He was released from jail early Friday on his personal recognizance, court records show. He is scheduled to appear in court Nov. 20.

Though I am not an expert on Maryland law, I think West may only be facing misdemeanor charges and thus West and his lawyers might not need to bring in Heller and the Second Amendment in order to ensure that these gun possession charges go away quickly.  Nevertheless, if Heller stands for the proposition that the Second Amendment protects a persons right to possess guns for self-defense, it seems that West's gun possession might arguably be constitutionally protected.

September 19, 2009 at 09:50 AM | Permalink

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First, I do not recall any language in Heller creating a generalized and unmodified right to armed self-defense outside the home. Second, even if there were such a thing, why does this guy need three loaded guns? Does he have three hands to use in "defending" himself? Third, the notion that "there's a lot of not-too-nice people out here" would carry the law of self-defense further than any court could, or would, allow.

Even the NRA would gag on this one. To respect the Second Amendment -- in a way most liberals declined to do until Heller came along -- is not to acquiesce to making the country over into Dodge City.

If I were to choose a test case for the application of Heller, this assuredly would NOT be it.

Posted by: Bill Otis | Sep 19, 2009 11:27:39 AM

The language of the Second Amendment is "keep AND bear," so once Heller decided that this right extends to individuals then it seems also that gun possession for self-defense would safeguard the bearing of arms as well as the keeping.

Just to be clear, Bill, are you asserting that the Second Amendment does not extend to carrying arms for self-protection outside the home, or are you asserting that one is limited to carrying only one gun per hand? Or are you saying that government's get to decide who is allowed to exercise the right of self-defense?

Like all rights, Bill, the hard questions for the Second Amendment do not involve only "nice people." And that's why I keep bringing up these cases, since most Second Amendment fans seem eager to believe that we can have enforceable gun rights without having to answer any of these hard questions.

Posted by: Doug B. | Sep 19, 2009 2:42:50 PM


History says that the right guaranteed by the Second Amendment was really the right of the people as a political community to keep arms and provide itself with militia service. That can easily be seen by looking at another use of the people’s “right to keep and bear arms” as an expression in a context was also entirely about the militia. In 1788, New York’s ratification convention framed the future Second Amendment’s idea in this way:

“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” (Elliot’s Debates, vol. 1, p. 328)

It is plain in this wording that the people’s right to keep and bear arms was the right of the people as a political society to defend itself using a well-regulated militia. If “bear arms” and “bearing arms” here were interpreted to mean “carry arms” and “carrying arms,” the declaration would obviously be nonsense.

Applying the “carry arms” definitions would result in a declaration saying that the people as individuals had a right to carry arms but that a well-regulated militia included that subset of the people who were actually capable of doing so. It would convey the empty-headed message that well-regulated militiamen must be capable of carrying arms.

Furthermore, since virtually everyone, even the physically handicapped and the superannuated, is capable of carrying arms of some sort, the “carry arms” version of the right to keep and bear arms would have resulted in an enormous well-regulated militia. The facts of history, however, show that the state laws that regulated militias pertained only to able-bodied men within specified age limits (e.g. 18 to 45).

The often-ignored fact is that when the phrase “bear arms” was used in a context that was wholly militia, 18th-century Americans understood it to mean “provide militia service.” That’s what it means in the New York declaration, as well as in the Second Amendment. Persons who were physically and by age qualified for militia service were said to be “capable of bearing arms.” That was the idiomatic language of the time. The difference between the New York declaration and the Second Amendment is that the Second Amendment adds the prohibition against the federal government infringing the people’s right to their well-regulated militia.

The New York declaration was part of a Bill of Rights proposed by New york’s ratification convention, in conjunction with that state’s ratification of the Constitution. Among those delegates who approved the declaration were Alexander Hamilton and John Jay, two of the nation’s greatest Constitutional experts, who between them wrote two-thirds of the Federalist Papers.

Posted by: Leif Rakur | Sep 19, 2009 3:18:24 PM

Leif. What a bunch if unmitigated hogwash. And here I was thinking this tripe was deader than a doornail.

Thank God what is "obvious" to you is not obvious to anyone else.

Posted by: Daniel | Sep 19, 2009 6:53:38 PM

Daniel -

So, you abhor my post, but you're are unable to make an argument in an effort to disprove what it says. Interesting.

I was hoping someone would at least attempt a counter-argument.

Posted by: Leif Rakur | Sep 19, 2009 8:34:58 PM

Doug, you mentioned Hamilton and the Federalist papers. In Federalist #29, Hamilton wrote this:

"This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

To that, I would add the words of Madison in Federalist #46:

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

Also in #46:

"Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes."

I think that the "militia" is a subset of the "people." The 2nd Amendment speaks to the right of the "people," not the right of the state. Regulated meant trained in arms as in "regular" army. I don't think that either Hamilton or Madison were arguing that the people would have the right to keep and bear arms only during those times that the militia is called into service.

As I recall, the recent Heller case came down on the side of the "people" in the second amendment being the same "people" mentioned in the 1st, 4th, 9th, and 10th amendments in the Bill of Rights. However, the 2nd Amendment hasn't been incorporated. If it is, it will apply to the states as well as the federal government.

If someone stopped me right now, they would find a rifle, a shotgun, and a handgun. And also ammunition for a trip to the range that I want to do some evening. Of course, I'm in Texas. There are no restrictions on rifles and shotguns. To routinely carry a handgun requires a license which I have. I'm carrying the "arsenal" right now because, I consider them more secure in my automobile than they would be if I left them at home.


Posted by: cbrtxus | Sep 20, 2009 1:40:11 PM

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