Gun Control & RKBA
Related: About this forumNow that Scalia has died, are gun-lovers feeling...
...quite worried?
After all, both the Heller and McDonald v. Chicago decisions were 5 to 4 decisions, with the CONSERVATIVES on the U.S. Supreme Court favoring SELFISH PROPERTY RIGHTS and the LIBERALS on the court favoring THE RIGHT TO LIFE.
Antonin Scalia was NOT one of the liberals, but instead was one of the conservatives. Now he is gone.
Let us reflect on one of the statements of one of the liberal justices: "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, 'fundamental.'"
-- Justice Stephen Breyer, appointed by Bill Clinton. And now, Justice Breyer awaits a new colleague. Are gun-lovers everywhere going to do what they can to stall the replacement of Scalia?
Is the right to have a particular piece of property, a gun, so crucial to them that they would do what they can so that a Republican president can appoint Scalia's replacement?
We shall have to see.
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discntnt_irny_srcsm
(18,603 posts)
GGJohn
(9,951 posts)
ileus
(15,396 posts)a ban isn't what we want, but instead insist it "common sense" gun control?
Are we being dishonest.
JonathanRackham
(1,604 posts)Laws passed on the basis of ignorance and selfishness are just as bad.
CommonSenseDemocrat
(377 posts)krispos42
(49,445 posts)It's based on the post-9/11 Bush Administration rhetoric. "Liberals are for selfish privacy rights while we conservatives are favoring the right to be safe!"
Or how about stop-and-frisk? Same argument... "my right to be safe trumps your right to privacy".
Nuclear Unicorn
(19,497 posts)Brown v Board of Education?
Roe v Wade?
Lawrence v State of Texas?
By the way, the 2A is no more about property rights than the 4A is, which is to say, not at all.
MohRokTah
(15,429 posts)Nuclear Unicorn
(19,497 posts)Don't get me wrong, I'm all for anarchy, but unless someone is intellectually and spiritually prepared undermining case precedence will only undermine overall trust in the system. You might as well go around rewriting the standards for weights and measures every other year just to see how it effects the economy.
I say, "Go for it!" but, then again, I'm an anarchist.
MohRokTah
(15,429 posts)Nuclear Unicorn
(19,497 posts)MohRokTah
(15,429 posts)Look at affirmative action, long standing precedent was overturned.
Look at Citizens United, long standing precedent was overturned.
This is how our system works. Precedent is dependent upon the whims of whomsoever sits on the court at a particular moment.
Nuclear Unicorn
(19,497 posts)Yet, it all boils down to the system is merely a matter of personal whim and political fashion. It's all theater.
It's best if we not surrender our rights to such creatures.
MohRokTah
(15,429 posts)except for every other system that has ever been tried.
stone space
(6,498 posts)And in any case, Scalia voted with the dissent in that case.
Bowers v Hardwick is one of those Supreme Court decisions with which took I exception to rather strongly at the time.
Folks claimed that it couldn't be changed, but they were wrong.
Nuclear Unicorn
(19,497 posts)If USSC become little more than political jump balls than they will cease to be of any value. The USSC overturning of Heller and MacDonald that you and so many others anticipate would then also be open to being overturned itself as soon as the political tide shifts.
stone space
(6,498 posts)Were we not right to protest that decision?
Were we not right to fight back?
Or should we have just meekly simply accepted it, instead.
I think we did the right thing in fighting that Supreme Court decision.
Nuclear Unicorn
(19,497 posts)that's because I believe personal freedom trumps obedience to unjust laws. That the previous ruling was overturned merely spared us the duty of civil disobedience.
Kinda like Heller.
stone space
(6,498 posts)We were spared nothing.
We did our duty.
They arrested 481 of us on the steps of the US Supreme Court in protest of Bowers v Hardwick.
Nuclear Unicorn
(19,497 posts)stone space
(6,498 posts)I see the word "rights" mentioned in this forum in sentences like "My rights trump your dead".
Nuclear Unicorn
(19,497 posts)TeddyR
(2,493 posts)Bowers took away a right, and the government has no place telling two consenting adults what they can or cannot do in the bedroom. Heller, contrary to Bowers, protected a right. There is a key difference between the two.
stone space
(6,498 posts)TeddyR
(2,493 posts)Took away a right?
stone space
(6,498 posts)
TeddyR
(2,493 posts)You just "disagreed." Do you have trouble explaining why you disagreed and with what point?
stone space
(6,498 posts)discntnt_irny_srcsm
(18,603 posts)I was kind of expecting a Dem president, aren't you?
2naSalit
(94,096 posts)nothing you construct or formulate is ever really "yours" until the "fire gods" are done with it. I am highly concerned over the voter fraud where voting machines flip votes during an election. That's where I am concerned about whether we get an elected president or one chosen for us by the oligarchy.
discntnt_irny_srcsm
(18,603 posts)...may be thinking that once Obama appoints a new justice it's not a problem since after Trump is elected he may just call that rudely appointed person in and say, "You're fired." 
discntnt_irny_srcsm
(18,603 posts)2naSalit
(94,096 posts)I'll be looking for it though.
discntnt_irny_srcsm
(18,603 posts)Robin Williams, Christopher Walken, Laura Linney, Lewis Black, Jeff Goldblum
2naSalit
(94,096 posts)DonP
(6,185 posts)So, because the court will now be tilted to the left, you think that all those pesky 2nd amendment decisions you don't like, or understand for that matter, will be shortly overturned?
Soooo if that's the way the court works, then why didn't that Conservative court overturn the ACA, Roe v Wade, Gay Marriage and all those other cases the right doesn't agree with when they had the chance and the majority?
Here's a hint ... because that's not the way SCOTUS works. It may be influenced politically, but the truly dim bulbs out there actually think of it as a purely political tool. It ain't.
Or are you all suggesting that Justices Ginsburg, Sotomayer, Kagan, Breyer et. al are nothing more than political hacks that should do your or any political types bidding?
First, they can only decide existing cases that; 1. reach SCOTUS from lower courts and represent a constitutional conflict among the appellate courts and 2. a majority of the judges have to agree to accept for consideration, e.g. grant Certorari.
Second the court is loathe to take a case that will overturn their own established precedent, e.g. Stare Decisis. The typical time for reversing a decision runs historically into the decades, not a few weeks or even years.
Third, the chances of any outspoken gun control type getting approved by the Senate ... are about zilch.
So all the grave dancing might be a little premature.
discntnt_irny_srcsm
(18,603 posts)
Maybe the control folks think the appointment is as simple as an executive action...
Then the justices, working as a majority, will get some white-out and fix Heller.
DonP
(6,185 posts)More likely they think (using the term "think" very loosely); "Well now we can just ignore Heller and McDonald".
discntnt_irny_srcsm
(18,603 posts)...I would decide that I could just go back to business (banning) as usual and wait for the case(s) to reach the SC figuring 'the fix is in."
MohRokTah
(15,429 posts)DonP
(6,185 posts)MohRokTah
(15,429 posts)the 4 that would grant cert decide not to.
gejohnston
(17,502 posts)including California governor Jerry Brown and legal scholars hoping it would overturn the Slaughterhouse cases as well as Cruikshank.
In attempting to overturn Slaughter-House, this case garnered the attention and support of both conservative and liberal legal scholars interested in its potential application in areas outside of firearms law. Their interest was that if Slaughter-House had been overturned, it would have been possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would have been applied against the states automatically.[12][13][14]
https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago
https://en.wikipedia.org/wiki/Slaughter-House_Cases
MohRokTah
(15,429 posts)There can be no doubt about that simple fact.
beevul
(12,194 posts)No big deal, no electoral consequences. 
MohRokTah
(15,429 posts)Supreme Court Justices are not elected specifically for that reason.
No matter who replaces Scalia, the interpretation is going to change.
I would bet that more latitude in regulating arms will be the end result.
beevul
(12,194 posts)Any party that appoints a justice hostile to the individual right of Americans to keep and bear arms, will pay at the polls, possibly for a generation.
MohRokTah
(15,429 posts)The interpretation is not going to be altered drastically. All that will change is local governments are going to be given more leeway to regulate how arms are transferred. That's it.
beevul
(12,194 posts)I only know how the American people have responded to talk about "strict" gun control:
Several consecutive record breaking months of gun sales.
Americans are "having a conversation" that you, apparently, can not hear.
How Americans would therefore respond to an anti-gun zealot making it to the court, is quite obvious.
MohRokTah
(15,429 posts)She's a hunter and a firearm owner.
I think you're being pretty ridiculous about the forthcoming changes. In fact, probably beyond ridiculous.
beevul
(12,194 posts)I don't actually know what the forthcoming changes will be.
In fact, between the two of us, only ONE of us has actually weighed in on that.
That would be you.
MohRokTah
(15,429 posts)Elena Kagan.
Somebody who owns and regularly fires weapons.
There's your worst absolute possibility for the changes that will coem.
beevul
(12,194 posts)
Jackie Wilson Said
(4,176 posts)And as time goes on, each generation will become less and less interested in guns for any reason. It is happening now I am certain, though I tried to find a poll by age group and compare it to years ago and cant, but I am certain that the young folks care less about guns than our generation.
beevul
(12,194 posts)I see over 100 million guns sold domestically in the last decade give or take, as being somewhat contrary to that notion.
Jackie Wilson Said
(4,176 posts)show exactly what I am saying.
beevul
(12,194 posts)Nor do I think they matter much even if they are accurate.
If we lived in a true majority rule nation I might.
pablo_marmol
(2,375 posts)I'm guessing that you also think that "assault weapons" are more lethal than other semi-auto rifles and think that we close the "gun show loophole".
This sort of thinking is truly hurting the Democratic Party. For Dog's sake........please JUST STOP thinking.
MohRokTah
(15,429 posts)pablo_marmol
(2,375 posts)MohRokTah
(15,429 posts)pablo_marmol
(2,375 posts)Not your true feelings and beliefs?
Thanks for clearing that up!
MohRokTah
(15,429 posts)You created the straw man and decided that's what i believed.
Response to MohRokTah (Reply #81)
pablo_marmol This message was self-deleted by its author.
pablo_marmol
(2,375 posts)Anyone who doesn't understand that our constant lies vis-a-vis "gun control" come with a political price attached is too naive to debate with in good faith.
Lizzie Poppet
(10,164 posts)I suppose a legal argument can be made for the "collective right" interpretation. A legal argument can be made for most any kind of idiocy.
However, there is simply no rigorous linguistic argument for interpreting the 2nd Amendment in that manner. To arrive at the right to keep and bear arms pertaining only to members of a militia would require a significant re-write. Placing a linguistic ignoramus on the Court won't get the language of the amendment altered, for all that it might permit a stupid, ultimately disastrously destructive ruling to be made.
MohRokTah
(15,429 posts)I suspect what will happen is a bit more weight given to the words "well regulated". What this will do is give a bit more latitude to local governments seeking to regulate transfer of arms more closely.
Lizzie Poppet
(10,164 posts)The descriptor will still apply to the militia, not to the People, who are the (obvious) bearers of this right.
The collective right interpretation, regardless of any legal standing it may have once enjoyed, is linguistically indefensible. Reversing Heller might allow a legal situation in which the collective right interpretation enjoys a resurgence, but unless the actual text of the amendment is changed, that interpretation will continue to be challenged on a linguistic basis.
MohRokTah
(15,429 posts)Which was the interpretation prior to Heller.
beevul
(12,194 posts)"To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege." Wilson v. State of Arkansas (1878)
The collective rights interpretation was a construct of those with an agenda, one which can not be legally argued as meshing with the text of amendment 2, or the nuts and bolts function of the bill of rights, and can not fit within the process of rights versus powers as we know and understand them in American jurisprudence.
To believe the collective rights theory one must ignore all of the above, in addition to believing that in spite of the fact that 40 plus state constitutions recognize the right of the people to keep and bear arms, that the framers who had just fought a war which was sparked by the british trying to confiscate arms, decided to restrict rights to a group instead of individuals, at a time where privately owned fully outfitted and armed warships was well known and approved of.
It doesn't even pass the smell test, let alone pass any legal discussion.
AtheistCrusader
(33,982 posts)Section 24 - Right to Bear Arms
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this Section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
jmg257
(11,996 posts)Re: Heller
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.[June 26, 2008]
"The Second Amendment says that: “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.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
(2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U. S. 174, 178 (1939) ; see ante, at 26 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.
(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) ; ante, at 22, 54 (opinion of the Court)."
https://www.law.cornell.edu/supct/html/07-290.ZD1.html
sarisataka
(21,342 posts)the collect right theory is a relatively modern fiction that is an attempt to create the illusion the intent of the 2A is to allow government controlled troops to arm themselves.
No SCOTUS ever has supported that position. Indeed the major former 2A ruling, US v. Miller gives very clear acknowledgment that the right belonged to individuals:
***
In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.
The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.
discntnt_irny_srcsm
(18,603 posts)...when you return.
friendly_iconoclast
(15,333 posts)I suppose years of failure could do that to a person...
DonP
(6,185 posts)They come down here and get away with being rude and uncivil to DU gun owners.
Then they screw up, forget where they are, and treat other DU groups the same way and voila! They be gone.
TeddyR
(2,493 posts)"Well regulated" doesn't mean what you think it means. It means "in good working order" or "well trained." For example, Alexander Hamilton in Federalist Paper No. 29 wrote:
The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.
guillaumeb
(42,649 posts)was a complete rejection of all previous SCOTUS precedent, and that Scalia invented a ridiculous "interpretation" of the Second Amendment that requires eliminating half of the Amendment to justify his interpretation, one hopes that a liberal judge would bring the SCOTUS back to a true original intent affirmation.
http://smartgunlaws.org/understanding-district-of-columbia-v-heller/
sarisataka
(21,342 posts)The previous SCOTUS precedent the Heller rejected.
I expect it will take some time...
guillaumeb
(42,649 posts)This is another view of the DC v Heller decision. I realize that it is only the Yale Law Journal, and I am certain that the NRA viewcarries far more weight in your eyes.
http://www.yalelawjournal.org/note/open-carry-for-all-heller-and-our-nineteenth-century-second-amendment
As to previous SCOTUS decisions:
United States v. Miller, 307 U.S. 174 (1939) is the most recent, coming obviously in 1939. The SCOTUS, as you are probably aware, rejected any individual right to carry.
Prior cases in the 19th century do not address the issue of individual rights.
sarisataka
(21,342 posts)You mean one case. Unfortunately it does not even support your case as it did not reject any individual right to carry.
Miller was not an individual rights case. If you read the decision, it was never argued that Miller lacked militia standing. He was never enlisted in any form of the US military and as a felon was disqualified from militia service. If it was a question of individual rights or a militia requirement to own a firearm that would have made it an open and shut case. The Court was completely silent on the requirement of a person to have militia standing or an individual right to own firearms.
The case was about the ability of the government to restrict non-militia related weapons. They found, incorrectly by the way, that a short barreled shotgun was not in use by and had no purpose to be used in a militia so was therefore not protected by the 2A. I say incorrectly as minimal research would have showed the short barreled shotguns had been used in WW 1, a mere fifteen years earlier. This error was likely due to the fact that Miller was argued by the government only. As Miller had died prior to the SCOTUS hearing, no one argued against the government position.
If one were to look at Miller in a current day context, it is completely in line with Heller and McDonald. Also it would be a precedent to overturn so called assault weapon bans, as it can be easily shown that low to mid caliber semiautomatic rifles have many similarities to weapons commonly used by modern military forces.
You are correct in saying "Prior cases in the 19th century do not address the issue of individual rights"
As for Yale, it appears to say the Heller is ahistorically restrictive. I have no idea what the actual NRA position is, nor do I care.
guillaumeb
(42,649 posts)And Heller broke with precedent. So much for stare decis.
And DC v. Heller did not create an unrestricted right even as it broke with SCOTUS precedent.
gejohnston
(17,502 posts)said that the BoR, including the first amendment, applies only to the federal government but not the states. They were decided in a time when a state could ban free speech and have a state religion and still be constitutional.
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
None of them supported the collective rights theory you are pushing.
Nuclear Unicorn
(19,497 posts)1.The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury..
2.The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
3.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
4.The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization
https://en.wikipedia.org/wiki/United_States_v._Miller
That would seem to indicate that "military-style" assault weapons should be available to civilians. Yet, those are the ones most targeted by Controllers.
guillaumeb
(42,649 posts)This states that the 2nd Amendment protects ownership of military style weapons and relates it to use in the militia. The "well organized militia" that is the beginning of the actual Amendment and that Scalia dismissed as "merely prefatory". His words from the decision. Talk about ignoring the original intent that he claimed to revere!
Nuclear Unicorn
(19,497 posts)The militia is not in service to the federal government. It is protecting a quality of the organized community, not a particular government construct. Any suggestion to the contrary would be to infer that those who had just concluded a civil war with the British crown (a war started when the Crown sought to seize civilian arms caches). Obedience to government was not on their list of priorities and it was the militia that formed no small portion of that effort.
Moreover, the militia provides its own arms hence the clause, "the right of the people to keep and bear arms" (notice it acknowledges a pre-existing right) "shall not be infringed."
It would seem to most context-worthy interpretation of the amendment would be --
Groups of citizens are the best defense of a community's freedom. So for that reason the right of the people to obtain and possess military-grade weapons shall not be infringed upon by the government.
guillaumeb
(42,649 posts)the primary defense. Plus that militia must be a well regulated and organized militia, as defined by the Constitution. Again, none of this supports a lone individuals right to keep weapons. That right is linked to a well regulated militia. Thus it is not an unregulated right. And even the DC v. Heller decision states that there is no unlimited, unregulated right conferred by the Second Amendment.
And as to your title, these states are part of a union of states, a United States, if you will. Each individual state is not responsible for its own defense.
As to the supposed function of protecting a community, there are police and a state National Guard.
Nuclear Unicorn
(19,497 posts)If controllers were as eager for the 2A's militia clause as they pretend they would be insisting the best functioning military grade weapons be made available.
I will not, as your claim has no basis in fact. Whenever the Constitution refers to the states as political entities it does so unambiguously, i.e. "the several states."
Even if we permitted "a free state" to mean what you claim it still does nothing to diminish my interpretation that a quality is of greater precedent than a political entity. Are we really to the point we are claiming the people are constitutionally required to defend their own oppressors, if it were to come to such a thing?
The police and formal military were the ones being fought against in the War of Independence.
Additionally --
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
https://www.law.cornell.edu/uscode/text/10/311
guillaumeb
(42,649 posts)http://definitions.uslegal.com/m/militia/
Note the sentence:
The Supreme Court has historically defined the Second Amendment as giving states the right to maintain a militia separate from a federally controlled army
So explain to me how you make the connection that this unorganized militia cannot be regulated by the states?
It is obvious to some of us that some of the gun crowd want to claim to be part of the reserve militia for purposes of arguing for an individual right to carry, but resist any state attempt to regulate what arms they can carry. Plus, by law, the militia is:
So this right to bear arms is obviously restricted to people between 17 and 45. Any older gun owners out there?
beevul
(12,194 posts)"Well regulated" (in the context you use) refers to the militia when under government authority, not to the people as free citizens to whom the right to keep and bear arms belongs.
Nuclear Unicorn
(19,497 posts)Yes, but regulated to what end? If it is to be up to the task of "to execute the Laws of the Union, suppress Insurrections and repel Invasions" then seeking to prohibit access to military-grade weapons seems counter-productive. Yet, that is all the control crowd seems to crave these days.
As for the alleged historical definition supposedly relied upon I would like to see references to original cases rather than some commentator's opinion.
"the right of the people to keep and bear arms shall not be infringed."
If you weigh down the people with endless nuisance laws, fees, etc. then how will the people provide their own arms for militia service?
The wording of the amendment makes it clear the right of the people -- an acknowledged pre-existing right such as "the right of the people to be secure in their persons, houses, papers and effects" -- shall not be infringed.
Again, I ask, if you weigh down the people with endless nuisance laws, fees, etc. then how will the people provide their own arms for militia service?
You're trying to play this both ways: Claim the 2A is exclusively about militia service but doing everything in your power to hamper such service. And you do so neglecting the intent of "a free state" rather than "The State."
guillaumeb
(42,649 posts)Given that a militia is restricted to citizens between age 17 and 45, no other adults can claim any Constitutional right to own guns. That is indisputable according to the law.
And given the also irrefutable fact that in modern times there has never been a call to arms for this reserve militia, when are these people going to be asked to provide their own arms? The fact is, in times of trouble, it is the organized militia, the National Guard, that is called out. Not Cliven Bundy and his band of idiots.
beevul
(12,194 posts)No. Whats indisputable, is that you're trying to pretend that "the people" and the militia" are the same thing, rather than one being a subset of the other.
The right belongs to each and every one of the "all", not just a subset. THATS indisputable, because it says so very plainly in amendment 2.
The framers would not have called it a right if they had intended it only to belong to a government controlled body, they'd have called it a power like they did everywhere else in our founding documents. That alone proves your entire premise false.
But please, continue preaching about that which you clearly and deliberately do not understand.
guillaumeb
(42,649 posts)This:
is what the Militia Act of 1903 actually says. It describes the reserve militia. It describes the militia as being citizens between the ages of 17 and 45. That it does not conform to NRA fantasy history does not make it any less true.
To quote you:But please, continue preaching about that which you clearly and deliberately do not understand.
beevul
(12,194 posts)Too bad the right belongs to the people not the militia, and a law written by congress can not modify the bill of rights or its interpretation, or you might have actually gotten within a mile of a valid point.
Supreme court precedent is against you.
40 plus state constitutions are against you.
76 percent of Americans are against you.
President Obama is against you.
The Democratic Party Platform is against you.
Reality is against you, and at some point I hope you'll have the good sense to come back to it.
Nuclear Unicorn
(19,497 posts)Back at you.
You ignore the fact that the militia should have access to military grade weapons capable of executing the laws of the union, suppressing insurrection or repelling invasion.
Except for the whole, "right of the people shall not be infringed." The people have the pre-existing right; the militia is a sub-set of the people.
Immaterial.
The law was last revised in 1993 to expand the scope of who belongs to the unorganized militia. So it is growing, not shrinking.
And just because a law has not been invoked does not nullify it. There are laws that spell out the line of presidential succession down to cabinet positions but they have never been invoked. That doesn't render them moot. rather, they are held in the event they are required.
guillaumeb
(42,649 posts)On edit:
From the Militia Act of 1993:
(
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
So females of all ages cannot be in the militia, and neither can males older than 45. What should I conclude?
Nuclear Unicorn
(19,497 posts)TeddyR
(2,493 posts)jmg257
(11,996 posts)Last edited Tue Feb 16, 2016, 11:17 PM - Edit history (1)
"The Supreme Court has historically defined the Second Amendment as giving states the right to maintain a militia separate from a federally controlled army"
IF that was THE purpose of the 2nd - to give(?) states the right to form militias so those state entities could fill their constitutional duties, how the heck could the state militias be re-created into the National Guard??...Congress was given no such power.
IF that was THE purpose of the 2nd, why mention the rights of the people at all?
Yes, the well-regulated state militias must exist, they were "necessary", but the existence of the state militias was already mandated in article 1/sec 8 and Article 2...
"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States"
The State Militias already existed, they were mandated in the Article of Confederation:
"but every State shall always keep up a well-regulated and disciplined militia"
and then given vital roles to fill in the Constitution.
The 2nd declared the Militias necessary, AND secured the right of the people to arms - at least for that purpose.
jimmy the one
(2,720 posts)Disregard this 'unorganized militia' argument, guillaume, it is baseless, junk science promulgated often by nuc uni.
The UNorganized militia today is a useless & dangerous JOKE. It's basically all other americans between 18 & 45 who do not belong to the military or to the national or state guards, in other words about 98% of the adult population in this age group.
It does not meet, has no officers, has no mobilization point, has no ratings, no training, no pay, NOTHING. Was called up ONCE since created by teddy roosevelt circa 1903 for armed militia duty, right after pearl harbor attack, & you know how many of the UNORGANIZED militia showed up in early 1942? about 5,000 met in oregon to fend off mythological japanese invasion hysteria, and most of those 5,000 were wwI veterans. They never shot a gun at any enemy afaik, encountering a jap sub off Ft stevens oregon but failing to shoot their cannon since they thought it was the invasion in progress, & didn't want to give away their gun position!!! A JOKE!!!!
Since then most presidents & governors have recognized the dangers of calling up any unorganized gun owners with little training, figuring they'd cause more harm than good.
The UNorganized militia, by definition, does not meet the 2ndA litmus test which calls for a 'well regulated militia'. An unorganized militia, by definition of unorganized, is NOT well regulated.
Nuclear Unicorn
(19,497 posts)jmg257
(11,996 posts)By definition, and in fact.
Unfortunately, per federal code the UNorganized militia IS still subject to being called forth. Whether a good idea or not.
With the re-creation of the State Militias into the National Guard, the "necessary" part of the 2nd seems to be covered.
Does leaving the people subject to being called into militia service (even though clearly not the constitutional militias) give some grounds for the right to arms?
jimmy the one
(2,720 posts)jmg: Unfortunately, per federal code the UNorganized militia IS still subject to being called forth. Whether a good idea or not.
Sure, I agree, the UN-organized militia can be called up by governors & I guess the president too. But it hasn't, except for the irrelevant inconsequential instance in wwII, where 5,000 half wwI vets showed up out of maybe 150 million americans?
Ask any governor about calling up thousands of american adult UNorganized militia members to mobilize someplace with their firearms. IE activating their state's Unorg'd militia. Same as activating an UNorganized MOB.
An unorganized mob which includes proportionally mostly non gun owners, many of whom would balk at showing up anywhere where hundreds of untrained gun owners would be carrying firearms, loaded or not. Democrats and republicans; christians and jewish and muslims & hindus & buddhists; white supremists & democrat socialists; adolescents & older guys; drunks, alcos, druggies, unidentified criminals, & law abidings citizens; mixed into just one big happy family, eh? a good portion of them with guns & ammo.
I suppose a lot of southern governors might do it if the police & state guards were overwhelmed, but hardly any sane democrat governor would - they'd let the president federally activate adjoining states, right? And how many HAVE? sure they call up unarmed volunteers in declared emergencies, but never have I seen activation of an armed UNorganized militia. It would be potentially worse than the problem at hand.
jmg: With the re-creation of the State Militias into the National Guard, the "necessary" part of the 2nd seems to be covered. Does leaving the people subject to being called into militia service (even though clearly not the constitutional militias) give some grounds for the right to arms?
No I don't see it, not using even pro gun reasoning; of course the National Guards (NG) is a well regulated militia which personally I would agree fits the 2ndA preamble, but since it doesn't represent 'the people', can't justify the 2nd clause.
Anti federalists, which as most of us know detested a standing army & wanted the 'people' to bear arms, hated select militias (of which the current national guard is) and desired a well regulated citizens militia:
Anti-federalist view, expressed by Richard Henry Lee: "A militia when properly formed, are in fact the people themselves, and render regular troops in great measure unnecessary... First, the constitution ought to secure a genuine {??} and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia ― useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permament interests and attachments in the community is to be avoided. …To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them…. http://www.madisonbrigade.com/library_bor.htm
(Note that the 'whole body of the people' he mentions would de facto be just adult white males, probably need be land or property owners as well)
"The necessity of an armed populace, protection against disarming of the citizenry, and the need to guard against a select militia and assure a real militia which could defend liberty against any standing forces the government might raise were topics interspersed throughout the ratification period."
So, the current national guard select militia would not fit the 2nd amendment. True, the current UNorganized militia would be a citizens militia, but obviously is not what FF and james madision envisioned in 2ndA by a 'well regulated militia', and certainly not what the militia act of 1792 envisioned in yearly muster, officers, pay & mobilization points, etc.
No longer is there any citizen's militia as envisioned by the founding fathers in the militia act of 1792. There is indeed a select militia the NG, but that is what anti federalist FF held in contempt and not what they envisioned. Unorganized is not well regulated, nuff said.
As bill maher & jon stewart & many talking heads have poked fun at numerous times in the past, the FF, the 2nd Amendment & the militia act of 1792 created a well regulated citizens militia with the right to keep & bear arms, to defend against dreaded standing armies and select militias.
Yet what exists today? A very powerful standing army, floating navy, flying air force, and a well regulated select militia. But there is no longer any well regulated citizen's militia as envisioned iin 1791.
Thus obvious to some of us, the 2nd amendment is worthless and obsolete, & should be rescinded just as the militia act of 1792 was done away with by the militia act circa 1903, which rendered the militia system envisioned by the FF as indeed worthless and obsolete (their very words if I remember correctly).
Nuclear Unicorn
(19,497 posts)Even if that were the case it is still in effect. There is no legal or rational basis for arguing "we ain't done this in a while so we ain't ever gonna do it again."
We've never had to invoke lots of laws, i.e. the 3rd Amendment prohibition against quartering troops in the homes of citizens; but that doesn't render the amendment null and void.
Rights do not expire. Rights preexist the paper upon which they are codified and will continue to exist even if never codified.
guillaumeb
(42,649 posts)But even accepting the legitimacy of such a militia, the acts all agree that there is an age range of 17-45 for such a militia. So clearly gun ownership cannot be a right for the older than 45 crowd.
What I find interesting is that DC v. Heller stands alone among SCOTUS Second Amendment decisions regarding the concept of individual right to carry, but ever since that decision the gun crowd has talked about the decision as representing original intent. Amazing how people can mentally rewrite history to conform to desires.
discntnt_irny_srcsm
(18,603 posts)...the accepted practice of general firearm availability and the distinctive lack of bans, registration and ideas of "demonstrated need" have been absent 200 years have led to the invention and acceptance of these concepts and the assertion that "this is how the Founders wanted it".
guillaumeb
(42,649 posts)for 200 plus years, people have not openly carried guns. Except in American movies of course, apparently the source of much knowledge at DU and elsewhere.
Heller represented entirely new ground, a ground that was worked by a so-called originalist who invented this individual right by ignoring the plain text of the Amendment and the Constitution.
And that after this decision, aided by a steady drumbeat of NRA propaganda, gun owners everywhere now insist that Heller conforms to prior decisions.
beevul
(12,194 posts)Before the invention of the automobile, where and how did people carry firearms, if not openly?
Nope. Heller just made clear that "the people" in amendment 2, are the same "the people" as in the other amendments.
You just don't like the facts, because you hate guns, that's all.
friendly_iconoclast
(15,333 posts)...about how the Constitution really doesn't (or shouldn't) apply to their particular
bugbear.
For some, it's same-sex marriage, immigrants, and/or unpopular religions.
For others, it's guns.
They will all tell you that they are merely looking out for the best interests of society...
beevul
(12,194 posts)discntnt_irny_srcsm
(18,603 posts)However, numerous jurisdictions have/had restrictions on concealed carry.
Heller was new ground in that it challenged a law saying firearms on private property need to be rendered locked and safe or disassembled. This was also not the norm over the past 220+ years.
jimmy the one
(2,720 posts)guillaum: But even accepting the legitimacy of such a militia, the acts all agree that there is an age range of 17-45 for such a militia. So clearly gun ownership cannot be a right for the older than 45 crowd.
45 years old was considered old circa 1776, as 50 was avg life expectancy. So they allowed for a 5 year retirement plan!
The military & national guards I'm pretty sure have extended this age to mid 60's, maybe 65.
But you're right I think (nuclear uni in a catch 22!) since they didn't change the militia age bracketing in 1903 when they revised the militia into the national gds & UNorganized militia, they kept the eligible ages as 17 - 45.
I even checked footnotes, and it appears that as of at least 1956 the age was 17 - 45:
US militia code(a) The militia of the United States consists of all able-bodied males at least 17 years of age and under 45 years of age.... (b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. (Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, § 1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, § 524(a), Nov. 30, 1993, 107 Stat. 1656.) https://www.law.cornell.edu/uscode/text/10/311
The emboldened above is this link, aug 10, 1956 I presume: http://uscode.house.gov/statviewer.htm?volume=70A&page=14
guillaum: What I find interesting is that DC v. Heller stands alone among SCOTUS Second Amendment decisions regarding the concept of individual right to carry, but ever since that decision the gun crowd has talked about the decision as representing original intent. Amazing how people can mentally rewrite history to conform to desires.
Revisionist history abounds in the gun culture. At least heller left it up to the states whether they wanted these concealed carry laws to apply.
Oh, btw, I've removed scalia from my 'hope he drops dead' list. Of natural causes I'll add but not that necessary; remaining are the perpetrators of the 2003 gulf war, & a few others.
beevul
(12,194 posts)Sorry but nope. The only operative part of amendment 2 is the part that restricts government. "Well regulated" is justificatory, nothing more.
The right belongs to the people, as ALL rights do, not the militia.
sarisataka
(21,342 posts)- organized militia only governs " such Part of them as may be employed in the Service of the United States"
-this is not the Army/NG as the officers of those are appointed by the Federal Government, not reserved to the states as the Constitutional militia is defined
-the use of the word "Part" demonstrates that the Militia is a set greater than those just in Service of the United States.
-per Art I Sec. 8 the 2A is irrelevant as Congress is required to provide for ..., arming,... the Militia.
Clearly the Militia of the 2A is neither the Army, National Guard nor anyone called into Service of the United States. Per the Organization of the Militia per the Act of 1903 right is referring to what is defined in the Act as the unorganized militia.
Even assuming that being a member of a Militia is a requirement to keep and bear arms, contrary to the majority of public opinion, the President, the Democratic platform and SCOTUS, the Right would still be retained by individuals under the Ninth Amendment.
A Right cannot be simply revokes by government inaction. The failure of the States to provide an organized militia does not remove the Right any more than a State failing to send out jury notices would remove a person's right to trial by a jury of their peers.
guillaumeb
(42,649 posts)The Founders did not provide for a standing army, nor did they provide funds for such an army. That was the reason that a militia was described. That militia would serve for self defense. Thus the need for a well regulated militia.
And even with the limited role assigned to the states, Congress prescribed the regulations for these militias. Thus establishing Congressional oversight.
So if people insist that the Second Amendment provides for an individual right to carry, according to the Amendment those individuals must be a part of the militia.
Remember also that the Amendment refers to "the people" rather than "any and every individual(s)".
beevul
(12,194 posts)Only when currently activated under governmental authority, in which case rights aren't in question. As government actors, they have no rights, they have powers.
That power over the militia was granted in the constitution, not the bill of rights, and its very specific and very limited. Amendment 2 which is contained in the bill of rights, on the other hand, authorizes nothing and restricts only government.
The second amendment doesn't provide for anything. It restricts government and authorizes not a single thing. I doing so, it protects without qualification, a right explicitly reserved to the people.
You can't have 'the people' with out individuals. By your logic, no individual is secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, because it says "the people" rather than "any and every individual(s)".
Calling your argument specious would be charitable.
Nuclear Unicorn
(19,497 posts)Do you take "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" to mean that only groups of people are allowed to demonstrate or petition?
Or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" to only refer to the collective possessions of groups of people"?
Or "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" to mean only collective rights?
Or "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" only apply to corporate group?
beevul
(12,194 posts)Nuclear Unicorn
(19,497 posts)
sarisataka
(21,342 posts)Though you did not address any points I made, simply reiterated your opinion.
I submit these contemporary opinions as to who the writers of the Constitution considered the militia-
— George Mason, in Debates in Virginia Convention on
Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
— Tench Coxe, 1788.
jimmy the one
(2,720 posts)sarisataka: Please cite The previous SCOTUS precedent the Heller rejected. ... Unfortunately it does not even support your case as it did not reject any individual right to carry. Miller was not an individual rights case. If you read the decision,
It did not reject an individual right to carry because state laws had changed dramatically by 1939 from original intent in 1791 writing of 2ndA. Miller did however, reject the individual interpretation of 2ndA.
Here, this is from the 1939 supreme court Miller decision. Read it over & over maybe 10 times, so that it sinks in. It does not refute any 'individual' right, but it pretty clearly spells out the MILITIA one:
The Constitution, as originally adopted, granted to the Congress power --To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
https://www.law.cornell.edu/supremecourt/text/307/174
sarisataka
(21,342 posts)so it sinks in.
From link you provided:
{And for those who think bullets are exempt from the 2ND Amendment}
The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.
The Miller court supports the position that the militia is "plainly" made up of "all males"expected to bear arms supplied by themselves. I.E. the Right is conferred upon the individuals.
jimmy the one
(2,720 posts)sarisataka: The Miller court supports the position that the militia is "plainly" made up of "all males"expected to bear arms supplied by themselves. I.E. the Right is conferred upon the individuals.
As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.
In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment (United States v. Adams, 11 F. Supp. 216 (S. D. Fla.)), the contention was summarily rejected as follows (pp. 218-219):
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights. * * *
CONCLUSION
For the reasons stated, we respectfully submit that Section 11 of the National Firearms Act does not infringe "the right of the people to keep and bear arms" secured by the Second Amendment, and therefore that the judgment of the District Court should be reversed and the cause remanded for further proceedings.
http://www.guncite.com/miller-brief.htm
http://rkba.org/research/miller/Miller.html
sarisataka
(21,342 posts)After spending a few paragraphs indicating the militia is everyone capable of of providing defense, the court makes a passing reference to a lower court ruling that is in opposition to their previous statements. It appears that SCOTUS needs to weigh in to remove any confusion that may result from this.
Let's see, the next SCOTUS 2A ruling would be..., Heller
jimmy the one
(2,720 posts)sarisataka: After spending a few paragraphs indicating the militia is everyone capable of of providing defense, the court makes a passing reference to a lower court ruling that is in opposition to their previous statements. It appears that SCOTUS needs to weigh in to remove any confusion that may result from this.
That 1935 adams quote was from a dept of justice brief representing the US govts position on the 1939 miller case to the 1939 scotus, which was used by the 1939 supreme court to support it's own opinion on the militia. The US govt won the miller case.
doj brief, 1938: In the only other case in which the provisions of the National Firearm Act have been assailed as being in violation of the Second Amendment (United States v. Adams {1935}, the contention was summarily rejected as follows: The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.
supreme court 1939 miller uses the above paragraph to support this following contention: The Constitution, as originally adopted, granted to the Congress power --To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
sarisatak: the court makes a passing reference to a lower court ruling that is in opposition to their previous statements.
No it is not in opposition to previous statements by the 1939 scotus. Since white males adults were 'the militia' they had the right to keep & bear arms, & bring them to militia service. They could own guns of course, but the 2ndA gave them the basis for doing so, as they were the militia. You cited:
the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Yes, they were (tentatively) obliged to provide their own arms for themselves when attending militia muster, since that is why they had the right to keep & bear arms (eventually an impermanent requirement). And recall pictures of armed militia men with bows, swords, & pitchforks.
Nuclear Unicorn
(19,497 posts)TeddyR
(2,493 posts)Where do you read in the Second Amendment that an individual "must be a part of the militia" to carry a weapon? The part of the Amendment dealing with the militia at most states the reason behind the Second Amendment. It doesn't mandate participation in a militia, but states that the right of "the people" -- i.e., all of us, you, me and everyone else -- to keep/bear arms "shall not be infringed." It doesn't say "those serving in a militia have the right to keep and bear arms," or "the people must be in the militia before having a right to keep and bear arms." You accuse 2d Amendment advocates of ignoring or reading out the "militia" language and then turn around and read in a requirement that doesn't appear in the text.
With respect to "the people," "the people" is "any and every individual." Don't you believe that "any and every individual" has the right to "peaceably assemble" (1st Amendment) or the right "to be secure . . . against unreasonable searches and seizures" (4th Amendment)? Both those amendments refer to "the people" and both unquestionably preserve individual rights.
guillaumeb
(42,649 posts)To justify the DC v. Heller decision, Scalia choose to read the first clause as prefatory and having no real significance. Thus he could claim an individual right that had never been claimed prior.
If the entire Amendment is read, not just the second clause, the well regulated militia is the reason for the right.
TeddyR
(2,493 posts)"The people." Do you agree that "the people" as used in the 1st and 4th means the same as used in the 2d and thus protects the right of each and every individual?
With respect to the militia clause, let's assume for arguments sake that the sole purpose of the 2d is to ensure a well-trained militia. Why would that fact, if true, abrogate the 2d Amendment's prohibition on infringing the right of "the people" to keep and bear arms? It seems clear that at the time the 2d was enacted the militia included everyone.
guillaumeb
(42,649 posts)The Founders did not intend that women, or non-whites, or children have the same rights as white men.
The unavoidable fact, except for Scalia and some here, is that the Amendment has two necessary clauses. If the Founders had wished merely to guarantee an individual right to possess firearms the Amendment could have simply read: "The right of the people to keep and bear arms shall not be infringed".
But it does not, and the reason it does not is that a well regulated militia, to be able to defend, must be armed. The Founders made no provision for a standing army, thus the need for a well regulated militia to stand as substitute.
Nuclear Unicorn
(19,497 posts)declined to respond. Do you consider your claim to hold true for those references as well?
guillaumeb
(42,649 posts)The Amendment, this specific Amendment, is written to link a militia with a right granted to a class of people, not all people. The Founders, if they had wished, could have dropped the first clause. Or have never written it in. But they did write it, and linked it to a right guaranteed to some people. Not all people. Original intent is important here.
Nuclear Unicorn
(19,497 posts)You're choking on gnats in order to swallow camels.
guillaumeb
(42,649 posts)But "the people", as written in the Second Amendment, clearly did not include all people living in the US.
Nuclear Unicorn
(19,497 posts)"the right of the people" is so strained. You're effectively declaring it applies to individuals in every other instance yet suddenly means something else in the instance you do not approve of and you have no reply apart from "BECAUSE GUNZ!"
If you're arguing "the right of the people to keep and bear arms" does not apply to women and non-whites then you have to simultaneously claim "the right of the people to petition the government for the redress of grievances" also does not apply to women and non-whites.
guillaumeb
(42,649 posts)When you wrote:
If
And that is true. Women and non-whites could not vote. Taxation without representation. Agreed?
Nuclear Unicorn
(19,497 posts)guillaumeb
(42,649 posts)Nuclear Unicorn
(19,497 posts)guillaumeb
(42,649 posts)Scalia basically substituted his own views in the DC v. Heller decision so he could justify finding what he claimed to be original intent in the wording of the Second Amendment. To reach this finding, Scalia had to eliminate most of the Amendment, claiming, with no substantiation, that it was merely prefatory.
It appears to me that many gun owners want to make the case that the DC v. Heller decision represented a continuation of Second Amendment SCOTUS decisions when in fact it was legislating from the bench.
And even if you, or anyone here, wants to make an original intent argument, you are caught by what the Founders clearly meant. The phrase "the people" simply did not refer to all people in all cases. It referred to white males.
Nuclear Unicorn
(19,497 posts)Your only argument (evasion, really) is to complain about someone who's politics you disapprove of.
So what?
We're discussing the right to self defense. It existed before the 2A, it exists even if Scalia never did.
You have no basis in historical argument or legal precedent. You're maintaining that the founders whose war for independence was begun over a battle to defend arms caches would then deny those same arms. You claim somewhere some as yet unrevealed case precedent is on your side.
Hide behind Scalia if you must but the only one you're fooling is yourself.
beevul
(12,194 posts)Some are for expanding that original intent, to include women and minorities.
Some are for shrinking it to almost nobody.
Which camp do you fall into?
guillaumeb
(42,649 posts)One: yes, I agree that "the people" as referred to in "We the people" must refer to all people.
Two: that has nothing to do with what I believe is the clear meaning of the Second Amendment. And that is that it was never intended and never interpreted as a right of individual carry divorced from "a well regulated militia", and that SCOTUS decisions prior to District of Columbia v. Heller never referenced an individual right in the way that the NRA and others would claim. Heller is an anomaly in Second Amendment SCOTUS decisions. Pure legislating from the Bench.
beevul
(12,194 posts)Which has nothing to do with reality. Believe. That's the key word. You 'believe'.
Its a religious tenet with you anti-gun folks. Whats new.
Your understanding of the second amendment is as deficient as your understanding of basic jurisprudence and constitutional theory. Under OUR system of government, all rights belong to the people, whether they be protected rights specifically enumerated in the bill of rights, or covered under the ninth and tenth. You proceed as if we are only allowed to do that which is bestowed upon us by government, when the fact is, EVERYTHING starts out as allowed. Government can not allow, it can only forbid.
Without an accurate understanding of how things work, as opposed to how you wish things worked, how can you have an opinion of even minimum value, or factual pertinence, within this debate? The sad truth, is that you can't.
No. Legislating from the bench, would be something like:
Pretense that "the people" means something different in the second amendment than the other 5 or 6 places that same phrase is used in an amendment which restricts government with the intention of that restriction being to protect a right. That's something that by your own words, you can get behind.
Ignoring history pre-miller:
"To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege." Wilson v. State of Arkansas (1878)
Like you're doing now.
I could go on about privately owned warships and letters of marque and reprisal, for contextual value of the time the documents were written, and what was lawful to own privately in those days. I could then point out that it would make no sense for the framers to yolk the strength of privately owned warships and then throw them under the bus as unprotected.
I don't really need to do that though. You're simply wrong.
TeddyR
(2,493 posts)Do you justify the argument that "the people" in the 2d Amendment is a different group than "the people" in the 1st and 4th Amendments? The 2d immediately follows the 1st and both use the exact same phrase - "the people" - when referring to certain rights and were written by the same individuals. Why do you think "the people" would mean something different? That is contrary to every basic tenet of constitutional and statutory interpretation. You can argue that the militia clause somehow limits the 2d, but it is simply intellectually dishonest to contend that "the people" means different things when used in the 1st and 4th than when used in the 2d.
I certainly agree that original intent is important. In fact, I think it is dispositive with respect to the 2d. I should ask this question -- what do you think the 2d Amendment does protect? I believe it protects the right of every single law-abiding individual -- "the people" -- to own a firearm, for whatever legal reason they wish, and to carry that firearm outside of the home, and there is no mandate that you serve in a militia. I also believe that this right is subject to certain restrictions, such as no firearms for felons, or mentally ill.
beevul
(12,194 posts)Amendment 2 does not contain "we the people".
Not relevant to this discussion.
Irrelevant. The second amendment has only 1 power - to restrict government. It authorizes nothing.
If they had meant only "the militia", the words "the right of the people" would not have appeared at all.
And that's not your only problem, either. If by "militia" the framers meant "the militia which is under the control of congress" they never would have mentioned "the people" or "the right of the people", since government bodies under government control have powers, not rights. Since they authored the document, I'd call it a fact that they knew the difference, even if you don't.
Your argument basically boils down to this:
That argument, is, to be blunt, quite preposterous.
The collective rights argument is dead. Trying to resuscitate it will only lead to places you wont like, such as machine guns (actual militia weapons).
discntnt_irny_srcsm
(18,603 posts)Article II section 2: "The President shall be Commander in Chief of the Army...".
While the Founders were not fond of the idea of a LARGE standing army, the country clearly had both an army and a navy as well as various state militias.
Naming a reason for the militia and providing for their continued existence does not eliminate a right of individuals upon which the existence of the militia is predicated. The reason why everyone who wasn't a white male was excluded is they were basically viewed as second class citizens. Various laws and changes to laws have been made to accommodate the reality that such an idea is wrong.
jmg257
(11,996 posts)Aren't the same ones that would be in service to the United States if called forth?
OF course they are the same entities....the State militias are THE militia - as referred to throughout the Constitution.
All to be armed & well-regulated per guidelines provided by Congress. All deemed "necessary".
All subject to being "governed" per congress if called forth in service (very much like federal troops were, president is C in C etc.), and all subject to being governed by the states when not in federal service.
Yes - things have changed with the creation of the unorganized militia, but that new entity isn't exactly " constitutional", nor was it the one identified as necessary as in the 2nd.
beevul
(12,194 posts)The second the militia comes under active control of government, whether it be local or federal, they become agents of government, and as such have no "rights" under the second amendment.
The framers knew this, the system was designed by them after all, which is why they explicitly protected the rights of the people, not the militia.
Governmental actors have powers, not rights, just like governments have powers, not rights.
The ONLY time rights apply, is as people, individuals, unrelated to governmental function.
This really is easier than you try to make it.
jmg257
(11,996 posts)Of course along with all the associated "hi-cap" mags, and other accoutrements.
Those obviously being IDEAL weapons related to and helping the efficiency of the militias...
"On March 30, 1939, the Supreme Court heard the Miller case. Attorneys for the United States argued four points:
The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
..."
"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."
If Miller was carrying a BAR instead of a SOS, sure seems the NFA would have had some changes.
shenmue
(38,538 posts)I think those are cool.
jmg257
(11,996 posts)appal_jack
(3,813 posts)The point of the Bill of Rights was to settle certain questions of individual liberty once and for all.
But of course opinions differ, so the Supreme Court gets to rule on these individual rights now and then. Though they don't always get it right in my book, opinions such as Roe v. Wade (reproductive freedom), Texas v. Johnson (free speech), and DC v. Heller (individual RKBA) have been important milestones in upholding the Bill of Rights.
Though each Party likes to take pot shots at certain rights, both have an interest in appointing Supreme Court justices that respect the principle of Stare Decisis: that is, to give prior Supreme Court decisions serious weight as precedent. For this reason, I sincerely hope that the rights to an abortion, to burn a flag in protest, or to keep a firearm in the home for individual self-defense is not questioned again, either by Scalia's replacement or the Court as a whole.
-app
Herman4747
(1,825 posts)...with your kind of attitude, Separate But Equal, (Plessy v. Ferguson) would still be the law of the land.
People want improvement, guy, and some of us are fed up with the carnage.
TeddyR
(2,493 posts)The court should revisit Roe? That's not very progressive.
Eleanors38
(18,318 posts)
shadowrider
(4,941 posts)would tell the Supreme Court, AND the Federal Government, to go f*ck themselves?
Take a second and think about that.
Response to Herman4747 (Original post)
pablo_marmol This message was self-deleted by its author.
DonP
(6,185 posts)Not a thing has changed in the law of the land, but they have all come out from wherever they have been hiding and snarking for the past 10 or 20 years ... of doing and accomplishing nothing. Now they are all as excited as a middle schooler going to the big dance. Well, I guess grave dancing is an Olympic level sport on DU.
Of course they won't personally be joining any gun control organizations or sending their own money to back up their excitement with real support. Oh, and don't expect any of them to actually show up at protests or take time off to meet with legislators.
They think that now have the ultimate "Magic bullet" in a yet to be named SCOTUS justice, so they can once again go back to being couch potato online warriors as long as someone else does all the heavy lifting.
They act like any time now Heller will be thrown out and McDonald reversed. "Stare Decisis be damned let's see some progress". I wonder if they'd feel the same way if the situation were reversed and suddenly there was a conservative majority on SCOTUS? Would they be as excited and concerned that Roe, the ACA and Gay Marriage would be reversed immediately?
Oh wait, there was a Conservative majority and they didn't reverse or block any of those?
But why wait and see who is actually named and what their judicial track record is. There are a hell of a lot of appellate judges named by Clinton and Obama that have made pro gun decisions since Heller. The chances of a truly hard core gun control supporter getting through the Senate, no matter how much they might wish for one, are nil and/or zilch.
But It's the only chance these poor folks have had to celebrate anything in 20 years. So keep throwing the streamers and confetti and check back in a year or two. I'm sure they'll let us know when Concealed Carry is repealed in all 50 states, semi autos declared actual weapons of war and the 2nd is declared unconstitutional.
Herman4747
(1,825 posts)The conservatives on the Supreme Court favored continuing the carnage; the liberals sought to diminish the prevalence of guns. I am a Democrat & liberal, so I side with the liberals instead of extending selfish property rights. How about you? Do you side with Scalia or instead with Breyer?
Let me help you in making a decision: Justice Breyer (in dissent) wrote, "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, 'fundamental.'" (Wikipedia) So, who do you side with here, Scalia or Breyer?
You write: "They act like any time now Heller will be thrown out and McDonald reversed. 'Stare Decisis be damned let's see some progress'"
Yes, progressives are indeed constantly seeking progress -- that is what we do. Now if someone just like you after the Plessy v. Ferguson decision (1896) had exclaimed "Stare Decisis!," someone like me would have exclaimed "We can't wait decades for equal rights for all -- we demand this immediately!" Alas, people just like you did win out until 1954, but was society better off as a result?
DonP
(6,185 posts)Maybe that's why you for all the Sturm und Drang gun control hasn't achieved jack shit in 20 years. Well, that and using the NRA as your pathetic excuse for failure year after year, even with $50 million from Bloomberg.
Is society better off? You mean with a 40 year record low violent crime rate, gotta say yes, yes it is.
But keep up the good work. All the whining about guns and gun owners will drive another year of record high firearm sales and NICS checks.
And BTW, who the hell made you the arbiter of who is and isn't a good Democrat anyway?
Here's an idea, go up the ATA and let Skinner know there are people here who you have decided aren't real Democrats, because they support gun ownership. Insist he close the Gungeon and ban all of us immediately. I'm sure he'll appreciate you alerting him to the crisis.
Herman4747
(1,825 posts)...so I'll not answer any of yours. My questions were too painful for you to deal with, and you have a lot on your mind right now, mourning not the loss of children shot dead at Sandy Hook, but instead the loss of your good buddy, Antonin Scalia. As you mourn, it may help to give each of your guns a goodnight kiss. Hope you feel better later on.
DonP
(6,185 posts)You've already lost the argument, as evidenced by record high numbers of gun sales and background checks month after month. And you lost it because gun control supporters are both lazy and cheap.
All you do is talk online, pat yourself on the back for being morally superior for your smug and pointless expressions of sympathy, and think that actually accomplishes something? Makes you feel all warm and fuzzy and accomplishes, well nothing.
Every year we go to my state capitol for 2 or 3 days and have 8,000 to 10,000 people marching for gun rights. We meet with our legislators one on one and in groups. Tell them face to face how we feel and what we are concerned about. We take time off work without pay or use vacation days and drive ourselves on our own dime to get there and pay for our own rooms and meals.
At home we bring them to the shooting range, introduce them to a lot of people there that vote like clockwork and teach them the safety rules and to shoot if they're interested.
Gun control shows up with 5 or 6 lobbyists on Bloomberg's payroll and promises of $$$ campaign support.
We've been doing things like that for decades now.
So share with the class some of your extensive exploits, investments of time and money in support of gun control because of "the children"? Someone as "sincere" and "committed" as you must spend quite a bit of time on the road protesting and meeting with legislators, right?
I mean what do you actually do, besides your very occasional and opportunistic condescending posts online which are so many useless electrons?
Or would your rather just put me on ignore or just trash the entire Gungeon so you can feel better and maintain that moral superiority and smug mind set?
Response to Herman4747 (Reply #89)
pablo_marmol This message was self-deleted by its author.
Lizzie Poppet
(10,164 posts)Oh, and the carnage has been lessening for decades...
beevul
(12,194 posts)Just because we don't agree on the means doesn't mean we don't agree that there is a problem. Its high time you guys dispensed with these notions to the contrary, which amount to a form of moral blackmail.
Wow. Just wow. Thats a startling admission. You don't want the court to do its job and interpret the constitution correctly regardless of where the legalities lead, you want it to legislate from the bench.
I side with the constitution, regardless of where it takes us at this point in time. You side with legislating from the bench, and you just said as much. Nothing you say really makes much difference after that, does it? Nope.
Breyer is demonstrably wrong, and he knows hes demonstrably wrong. Side with him if you want, but be aware that it makes you demonstrably wrong too. Here, again, I side with the constitution, regardless of who gets it right. I can argue in my own words why that's true. Lets see you argue in your own words, why it isn't.
Herman4747
(1,825 posts)Oh wise beevul, where precisely is your law degree from??
beevul
(12,194 posts)Whats the matter, can't you think or understand or read for yourself, and make cogent arguments which support your position?
Since you didn't even bother to try, I can only conclude that you're either incapable, or you know it will get shredded.
For a guy who complained in this very thread that someone else didn't address your points, you sure seem to relish engaging in that same behavior yourself.
Theres a word that applies which begins with the letter H.
Herman4747
(1,825 posts)...that unlike you Breyer doesn't understand the law and that "he legislates from the bench." What episode was that phrase on from Rush's show?
beevul
(12,194 posts)My claim was that YOU WANT THE USSC TO LEGISLATE FROM THE BENCH, and you do. Rush Limbaugh has nothing to do with that. Incidentally, limbaugh would ALSO like to see things legislated from the bench, just like you.
My position is to follow the constitution, where ever it leads, rather than decide with an outcome in mind.
You yourself characterized the liberals on the court as having "sought to diminish the prevalence of guns". That's your characterization of what the left leaning justices did, not mine. YOU made that statement. I did not. You then endorse that characterization by siding with it. YOUR OWN WORDS. That's not on me, that's on you.
So kindly cut the crap.
Again, My position is to follow the constitution, where ever it leads, rather than decide with an outcome in mind, as you have in your own words endorsed.
People like you need a reminder of what the actual job of a supreme court justice is and isn't.
Free hint: It isn't to make decisions with a particular end in mind, regardless of which way they personally lean, or what party they vote for, or who they were appointed by.
Herman4747
(1,825 posts)So YOU CUT THE CRAP that you know what "follows the constitution" better than Stephen Breyer, okay?
Nuclear Unicorn
(19,497 posts)The other justices that wrote the majority opinion.
Herman4747
(1,825 posts)...including the ones writing the majority opinion.
Nuclear Unicorn
(19,497 posts)So, by your own rules you don't really have an opinion to counter those with law degree.
Herman4747
(1,825 posts)...in which your beloved Scalia had a hand in in writing that all-important majority opinion (we know you treasure majority opinions), then at least in some cases I can counter those with law degrees.
Nuclear Unicorn
(19,497 posts)beevul
(12,194 posts)You don't know what I have, and frankly, this isn't about what I have.
I could say the same about you, AND the dissent:
So YOU CUT THE CRAP that you know what "follows the constitution" better than scalia and the majority, okay?
See, I can appeal to authority too, and a higher ranking legal authority than yours, namely the majority opinion, on top of it.
Do you disagree with scalias opinion in Texas v. Johnson too?
Herman4747
(1,825 posts)"Breyer is demonstrably wrong, and he knows hes (SIC) demonstrably wrong."
And how do you know he's wrong? Not through the use of arguments, oh no, but because a Supreme Court majority told you so. The "higher ranking majority opinion," that you are so fond of. Of course, Dred Scott was a majority opinion too, but you don't do nuance.
You go so far as to actually offend the integrity of Justice Stephen Breyer, suggesting he intentionally put forth a mistaken line of reasoning. I've just about had it with you. Go run to "Machine Gun" Sammy Alito for further comfort.
beevul
(12,194 posts)I just answered YOUR appeal to authority, with my own appeal to a HIGHER authority.
And how do you know hes right? You claim he is yet can't explain it in your own words.
In short, you're projecting.
Besides that, I don't approve of the heller decision because of who made it or who dissented, I approve of it because its constitutionally, legally, correct.
No. That's what YOU did, when you claimed that "the liberal justices sought to diminish the prevalence of guns". Those are YOUR words, not mine. If your premise is true, then yes, he was wrong and he knew it.
Maybe you should send those on the dissent an apology if their integrity really means as much to you as you're trying to make it look like, since You're the one that attacked their integrity, not me. Again, your own words, hung like an albatross around your neck.
Oooo. Scary.
Herman4747
(1,825 posts)...they constitute the "higher authority," just as they did in Dred Scott & Plessy v. Ferguson.
Yeah, I know, I know, you have the finest law degree available .
"If your (SIC) premise is true, then yes, he was wrong and he knew it." Your harsh words of condemnation of him did NOT feature ANY premise of ANY kind; you just came out and said he's wrong and he knew it.
Just not feeling pleasant today, are you?
Nuclear Unicorn
(19,497 posts)In an earlier case of similarly racist repugnancy -- the infamous Dred Scott decision -- the court wrote that if it were to allow blacks to be considered citizens then --
Do you dissent?
friendly_iconoclast
(15,333 posts)So YOU CUT THE CRAP that you know what "follows the constitution" better than Stephen Breyer, okay?
beevul
(12,194 posts)Not at all. In this debate you and I are having here, however, responding to your appeal to authority with a more authoritative authority is most appropriate, since you seem unwilling to discuss the ins and outs of the actual question at hand in your own words.
More of you doing anything but discussing the issue on its legal merits. Feeling insecure are we? The beginnings to my education on the law, started at the University of Thinkbeforeyouopenyourmouth. You might consider taking a couple of their courses some time, you'd benefit from them greatly.
My words didn't have to, they were based on YOUR premise. The one you set when you said that "the liberals sought to diminish the prevalence of guns." That is YOU saying, very directly, that they were not doing their jobs, since their JOB is to interpret the constitution with the only end being adherence to it. Like they take an oath to do. You then followed up by saying that you approve of them seeking to "diminish the prevalence of guns."
That is nothing less than an endorsement, by you, of judicial activism.
If we follow your premise to its logical end, then yes, stevens was wrong, and he knew he was wrong, because he wasn't doing his job, he was seeking to "diminish the prevalence of guns" which is not the job of the supreme court, no matter how bad you want it to be.
That can not be refuted.
DonP
(6,185 posts)... with apologies to John Nance Garner.
I love the way the Control Whiners haul out dissents from decisions they don't like, as if they had any legal weight at all.
If the dissent had enough support, it would be the majority opinion.
Should we give equal weight to the dissenting opinion on the ACA? On the dissent on Gay Marriage?
Or only the ones they feel bad about?
beevul
(12,194 posts)I wonder if he agrees with the dissent there too, because of whos on the majority.
DonP
(6,185 posts)I also noted that once again, I got no answer when I simply asked what they did in the real world to support their "caring and sincere" stand on gun control?
Any support, memberships in gun control groups, days spent protesting or meeting with legislators?
Nada, just another online Keyboard Kommando that's morally superior to all of us; "Neanderthal gun owners that don't care about dead babies".
Just amazing that "everyone agrees with them" but none of them ever seem to actually do anything, well, besides whine here on DU and tell us we're "not real Dems" if we own firearms and won't just turn them all in?
Feh!
friendly_iconoclast
(15,333 posts)It is an obvious one, given the noise they made about possession of a law degree:
http://www.democraticunderground.com/1172187236#post131
How long have *you* had a law degree, and what area of law is your specialty?
I fully expect Sarah Palin to be guest of honor at a MENSA convention before we
see a reply...
TeddyR
(2,493 posts)Breyer was wrong, Scalia was right. Breyer wanted to distort the text and history of the Second Amendment to . . . I'm not even sure what his goal was. Permit confiscation of guns? That would likely be legal under Breyer's reading of the Second (although that would have zero chance of ever happening since a vast majority of the country believes that the Second protects an individual right and opposes confiscation).
pablo_marmol
(2,375 posts)Utterly false. If gun restriction supporters were truly interested in saving lives, they'd dial back their self-defeating insults. You're not getting anywhere with your name-calling. You know, we know it -- and the public at large knows it. You're not fooling anyone.
I am a Democrat & liberal....
So you like to tell yourself. Liberal philosophy dictates that the burden of proof is on the person/people who wish to restrict a right. Not the other way around. Yet your team constantly shifts this burden of proof. There are countless other examples I could cite -- but I've got better things to do.
Google: 'Why liberals should love the 2nd amendment + Daily Koz' The author utterly demolishes your thesis re. liberal thought on gun violence.
Edited to add link to article:
http://www.dailykos.com/story/2010/7/4/881431/-
mikehiggins
(5,614 posts)Nuclear Unicorn
(19,497 posts)DonP
(6,185 posts)friendly_iconoclast
(15,333 posts)...probably due to some awkward questions
discntnt_irny_srcsm
(18,603 posts)
TeddyR
(2,493 posts)Even if the Supreme Court reversed Heller and said the 2d Amendment means something different, I'm not sure where that gets the gun control side. I mean, the controllers all claim that Heller invented some new right, but prior to Heller I could own a firearm in every state I've lived in (North Carolina, Georgia, Virginia, Montana and California, though I'm a little unclear on California's laws). In some of those states the state constitution clearly protects the right to keep and bear arms. Perhaps the federal government could be bothered to pass some sort of serious restriction if Heller was reversed, but I'd be shocked if that happened since Congress can't get off its ass and pass UBCs, which have overwhelming support.