Supreme Court: 2nd Amendment NOT about militias [Archive]

Drudgewire

26th June 2008, 07:50 AM

From the Scotus Blog:

The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg.

And so there is no ambiguity:

Quoting the syllabus: The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home.

And from The Hill (http://thehill.com/leading-the-news/supreme-court-shoots-down-d.c.-gun-ban-2008-06-26.html)

The U.S. Supreme Court has struck down Washington D.C.’s ban on handguns, ruling the restrictions do not infringe on the Second Amendment.

The 5-4 decision handed down Thursday is the Supreme Court’s first major Second Amendment ruling in nearly 70 years. It declared unconstitutional a D.C. law on the books for more than 30 years.

The District since 1976 has restricted handgun ownership to former or current law enforcement officers who registered their guns before 1977. The law permits shotguns and hunting rifles in homes but requires them to be kept unloaded and either disassembled or fitted with a trigger lock.

The U.S. Court of Appeals for the District of Columbia Circuit ruled D.C.’s gun ban unconstitutional last year. Dissatisfied with the ruling, lawyers for the District appealed the decision, and in November the Supreme Court agreed to consider the case. Arguments were heard in March.

Dozens of lawmakers in almost every Congress have put forward amendments and bills to revoke the D.C. gun ban, all of which have failed.

Critics of D.C.’s law say it infringes on their right to bear arms, while D.C. Mayor Adrian Fenty and other supporters of the ban argue that restricted gun ownership is a tactic to battle gun violence in the city.

:cheerleader1 :bounce2 :cheerleader3 :cheerleader2 :cheerleader5

157 page ruling (http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf)

RenaissanceBiker

26th June 2008, 07:51 AM

Thank you, SCOTUS!
http://forums.randi.org/imagehosting/thum_1116844e60fc01caf2.jpg (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=1035)

Demigorgon

26th June 2008, 07:52 AM

Nice to see there's still a bit of sanity left in this world.

billydkid

26th June 2008, 07:52 AM

I'm with you! Let's hope this settles it for a while.

billydkid

26th June 2008, 07:54 AM

Thank you, SCOTUS!
http://forums.randi.org/imagehosting/thum_1116844e60fc01caf2.jpg (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=1035)

RB - that is just mean!!! It is clear your intention is to torment old farts like me.

BPSCG

26th June 2008, 08:00 AM

Thank you, RenaissanceBi... Hey, wait, that's my sister, you :talk034:!!!

NoZed Avenger

26th June 2008, 08:09 AM

From the majority decision:

Scalia, J.: Well, we were really torn, but the exhibits from RenaissanceBiker were very compelling.

BPSCG

26th June 2008, 08:09 AM

The Hill (http://thehill.com/leading-the-news/supreme-court-shoots-down-d.c.-gun-ban-2008-06-26.html):

Mayor Adrian Fenty and other supporters of the ban argue that restricted gun ownership is a tactic to battle gun violence in the city.Emphasis mine.

I believe that's a misstatement of the District's position. Nobody argues that the District doesn't have the right to restrict gun ownership. But the District was arguing it had the right to ban it outright.

Now the District has to decide what restrictions it wants to put in place. Felons, mental patients, minors, would all be a good place to start. They also need to decide what kind of firepower people should be allowed to have. I suspect Abrams tanks won't be permitted.

Darth Rotor

26th June 2008, 08:13 AM

The Hill (http://thehill.com/leading-the-news/supreme-court-shoots-down-d.c.-gun-ban-2008-06-26.html):

I suspect Abrams tanks won't be permitted.
Not a firearm. ;)

In Texas the open carry law is now being bandied about, and for my money, is a good start. I'd like to see everyone in DC packing an 1873 Colt Peacemaker, openly. Let the distinguished ladies and gentlemen of Congress harken back to the days of Andy Jackson and Sam Houston, when Congress was wilder and woolier, which of course was a bit pre 1873.

Let the duels of Burr and Hamilton resume their rightful place in American politics.

DR

BPSCG

26th June 2008, 08:16 AM

Another compelling argument:

ponderingturtle

26th June 2008, 08:35 AM

Not a firearm. ;)

The second amendment doesn't mention firearms. Just Arms.

Let the duels of Burr and Hamilton resume their rightful place in American politics.

Because killing people over insults is what we want to encourage, just look at the inner city youth, they have got it so right.

Complexity

26th June 2008, 09:14 AM

I'm delighted.

It is important to remember that the right to bear arms is there in part, and I think most importantly, to resist an unworthy government.

Darth Rotor

26th June 2008, 09:16 AM

The second amendment doesn't mention firearms. Just Arms.
Do you take the position that subsequent legislation passed since the Constitution's original drafting is not binding? Do you hold the laws the ATF tries to enforce as non binding? Do you hold that the distinction made between firearms in various act and elements of the US code to be non binding and invalid?
Because killing people over insults is what we want to encourage, just look at the inner city youth, they have got it so right.
How are these inner city youth you cite American politics? Please explain.

Please explain how you equate a drive by with a duel.

@ Complexity: *tips cap*

DR

Garrette

26th June 2008, 09:19 AM

The second amendment doesn't mention firearms. Just Arms.I say let the man who can bear an Abrams have an Abrams.

Just don't complain about my stock of depleted uranium.

Because killing people over insults is what we want to encourage,Absolutely. That's exactly what the 2nd amendment says; it's exactly what SCOTUS has said; it's exactly what Darth Rotor said; and it's exactly what every supporter of gun ownership rights is thinking. You nailed it, PT. Well done.

just look at the inner city youth, they have got it so right.Give a few of 'em an Abrams and watch the internecine murder rate drop right off. After an initial upswing, of course.

volatile

26th June 2008, 09:21 AM

Giggywig

26th June 2008, 09:24 AM

BPSCG

26th June 2008, 09:27 AM

I say let the man who can bear an Abrams have an Abrams.

Just don't complain about my stock of depleted uranium.

Absolutely. That's exactly what the 2nd amendment says; it's exactly what SCOTUS has said; it's exactly what Darth Rotor said; and it's exactly what every supporter of gun ownership rights is thinking. You nailed it, PT. Well done.

Give a few of 'em an Abrams and watch the internecine murder rate drop right off. After an initial upswing, of course.:biggrin:

Let me repeat, :biggrin:

LTC8K6

26th June 2008, 09:28 AM

A well regulated militia being necessary to the security of a free State

Yes, the word is there, but the amendment is clearly about the individual right. Particularly when it's put into historical context.

LTC8K6

26th June 2008, 09:29 AM

If you win the argument that it's about the militia, well, the militia was the people.

Garrette

26th June 2008, 09:30 AM

So even though the amendment specificially mentions militias, it isn't actually about militias? That's some crazy cognitive dissonance y'all got there, America!

I don't really want another gun thread, but seriously... let's have a semantics thread. How can any sane person read the sentence "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" and not interpret it as being about militias?

All arguments about the rights of people to bear arms or not aside, trying to pretend that a sentence which includes the words "A well regulated militia being necessary to the security of a free State" is not really about militias is just weird, isn't it?

I also note the utter disdain groups like the NRA have for those "well-regulated" words in the Amendment, too.Speaking just semantically and not legally or philosophically, I think there is a legitimate case for exactly the position you deride.

"A well regulated militia being necessary" is the reason.

"the right of the people to keep and bear arms shall not be infringed" is the means.

Reasoning being this:

If ever the state requires a militia, it will be unable to raise or keep one if the populace from which it is to be raised is unarmed. Therefore, the practical implication is that an individual has the right to keep and bear arms separate from any actual service in the militia.

BPSCG

26th June 2008, 09:34 AM

Let the duels of Burr and Hamilton resume their rightful place in American politics. And let us not forget the 1850 fracas on the Senate floor between Missouri's Senator Thomas Hart Benton and Mississippi Senator Henry Foote (http://www.senate.gov/artandhistory/history/minute/Bitter_Feelings_In_the_Senate_Chamber.htm).

ponderingturtle

26th June 2008, 09:36 AM

Do you take the position that subsequent legislation passed since the Constitution's original drafting is not binding? Do you hold the laws the ATF tries to enforce as non binding? Do you hold that the distinction made between firearms in various act and elements of the US code to be non binding and invalid?

I was pointing out that consititutionaly the distinction you make does not exist. The basis of something being a firearm or not is not something that is significant as to a law being constitutional.

Please explain how you equate a drive by with a duel.

They are both based on the idea that violence is how you need to respond to personal slights. So they are very much the same and stem from the same sense of personal honor.

ponderingturtle

26th June 2008, 09:37 AM

I'm delighted.

It is important to remember that the right to bear arms is there in part, and I think most importantly, to resist an unworthy government.

Which is of course why SAM's need to be legal. How else am I supposted to protect my house from their helicopters?

Home defense is one of the rights cited after all.

Gagglegnash

26th June 2008, 09:40 AM

Hi

So even though the amendment specificially mentions militias, it isn't actually about militias? That's some crazy cognitive dissonance y'all got there, America!

I don't really want another gun thread, but seriously... let's have a semantics thread. How can any sane person read the sentence "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" and not interpret it as being about militias?

All arguments about the rights of people to bear arms or not aside, trying to pretend that a sentence which includes the words "A well regulated militia being necessary to the security of a free State" is not really about militias is just weird, isn't it?

I also note the utter disdain groups like the NRA have for those "well-regulated" words in the Amendment, too.

I dunno... the Ablative absolute?

How about that, "the right of the people part?" Ever considered what that might do to the rest of the thing is it were decided that, "the people," was a collective, and not individual, designation?

Just asking.

ponderingturtle

26th June 2008, 09:41 AM

Absolutely. That's exactly what the 2nd amendment says; it's exactly what SCOTUS has said; it's exactly what Darth Rotor said; and it's exactly what every supporter of gun ownership rights is thinking. You nailed it, PT. Well done.

That is what duels are about, someone dis's you and you fight them hopefuly kill them.

Darth Rotor

26th June 2008, 09:41 AM

I was pointing out that consititutionaly the distinction you make does not exist. The basis of something being a firearm or not is not something that is significant as to a law being constitutional.
Please look into Article I of the Constitution before you try that again, section 8. You didn't bother to respond to my questions. Please do so.
They are both based on the idea that violence is how you need to respond to personal slights. So they are very much the same and stem from the same sense of personal honor.

Wrong again.

The duel is a very formal social ritual, and has existed in numerous human societies at various times and places.

The drive by has as much relation to a duel as your foot does to a jellyfish.

DR

ponderingturtle

26th June 2008, 09:42 AM

ponderingturtle

26th June 2008, 09:46 AM

Speaking just semantically and not legally or philosophically, I think there is a legitimate case for exactly the position you deride.

"A well regulated militia being necessary" is the reason.

"the right of the people to keep and bear arms shall not be infringed" is the means.

Reasoning being this:

If ever the state requires a militia, it will be unable to raise or keep one if the populace from which it is to be raised is unarmed. Therefore, the practical implication is that an individual has the right to keep and bear arms separate from any actual service in the militia.

The problem is that this is demonstrably not true.

So when the constitution uses falacious logic, it is still all fine?

Darth Rotor

26th June 2008, 09:49 AM

The problem is that this is demonstrably not true.
Please support this vacant assertion with significant evidence, if you'd like to not be laughed at on this matter.

DR

ponderingturtle

26th June 2008, 09:51 AM

Please look into Article I of the Constitution before you try that again, section 8. You didn't bother to respond to my questions. Please do so.

Not a thing in there differentiateing firearms from other sorts of arms.

Wrong again.

The duel is a very formal social ritual, and has existed in numerous human societies at various times and places.

Yes, it was taking the basic motives of killing someone because they steped on your shoe and socialy recognizing it.

This would mean that public stonings would be better than private honor killings because one is a formal social ritual.

The drive by has as much relation to a duel as your foot does to a jellyfish.

And yet the laws against dueling still come into play.

ponderingturtle

26th June 2008, 09:53 AM

Please support this vacant assertion with significant evidence, if you'd like to not be laughed at on this matter.

DR

So do nations that broadly ban weapons have problems equiping their military?

When was the national guard BYOG?

volatile

26th June 2008, 10:06 AM

Because it says "the right of the People", not "the right of the People who are part of a well regulated militia." Or maybe I'm just not sane.

The People can make up a well regulated militia and then bear arms, as part of that well-regulated militia. That's what the sentence means. It specifically establishes that well-regulated militias are necessary for the freedom of the state. Private gun ownership is almost the opposite of a well-regulated militia, isn't it?

If it meant "Everyone should have the right to bear arms", then there is semantically and syntactically no need for the militia clause. The insertion of such a clause specifically limits the People owning guns to those within the well-regulated militia, at least in any sensible reading.

Let's replace "well-regulated militia" with "dairy farm" and "arms" with "cows". Seems like a good swap right? "Militias" are coordinated ways of organising guns and putting them to collective use, dairy farms do the same with cows.

"Dairy farms being necessary for the milk supply of a free state, the right of the people to own cows shall not be infringed". This rendering clearly demonstrates that it is the collective use of the cows, and not the individual use, which the Amendment is suggesting "not be infringed".

RenaissanceBiker

26th June 2008, 10:09 AM

Thank you, RenaissanceBi... Hey, wait, that's my sister, you :talk034:!!!

Which one of my brother-in-laws are you?

volatile

26th June 2008, 10:09 AM

Hi

I dunno... the Ablative absolute?

How about that, "the right of the people part?" Ever considered what that might do to the rest of the thing is it were decided that, "the people," was a collective, and not individual, designation?

Just asking.

Of course.

The people, collectively as you rightly assert, have the right to bear arms in the form of the necessary well-regulated militias. Collectively. Not individually, and not outside of the Well-regulated militia.

In what way does uninhibited individual gun ownership necessarily pre-figure a well-regulated militia, which is the absolute opposite?

marksman

26th June 2008, 10:11 AM

Not a thing in there differentiateing firearms from other sorts of arms.
At the time the Amendment was drafted, the term "arms" was limited in meaning to "weapons that were not specifically designed for military use and were not employed in a military capacity." For example, at the time of the Second Amendment, the federal government could restrict an individual's right to own a cannon (and often did), and many States as well required all cannon and cannonballs to be held at a central armory.

Thus, for purposes of the 2nd Amendment, "arms" does not include tanks, bombs, nukes, etc. Those can be restricted legally with no Constitutional issue being present.

Suddenly

26th June 2008, 10:12 AM

Reading the opinion is always fun. Relying on a brief snippet about the decision by a reporter is not going to give a decent picture of what is really going on.

My opinion after a quick reading:

A bit predictable. My reading is that it answers the theoretical historical question but will have almost no effect on the practical state of the law. An academic victory for conservatives that won't significantly change gun laws as they stand today.

Mostly it is the same tired historical definition hair splitting that has plagued the debate over the years. Fair enough. I'm more concerned with the quality of the opinion than the conclusion, although I find Scalia's argument a jumbled collection of claims applied in a manner indicating a results-based analysis seeking to reverse longstanding accepted principles without admitting to doing so, this is more of a matter of opinion than a critical analysis.

Scalia spends a significant part of his time worrying about the dissent. Other than that he does some curious things. Like at one point saying the "keep and bear" clause should be defined by the everyday understanding of the words as to meaning, but is limited by historical legal doctrine as to the type of weapons it covers (no nukes).

He also somehow cites the Miller court's (the only other SC case dealing with the substance of 2nd amendment) ending its analysis by determining the gun at issue was not one commonly used in military purposes as supporting an individual right because the status of the defendants was not discussed. He is citing the lack of dicta (part of the opinion beyond what was necessary to decide the case and thus with no binding legal authority) as supporting one way or another his position.

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.

This is the only passage that shocked me.... it takes an extremely unconservative attitude as to the role of the judiciary, that a court should not speak as to issues not necessary to decide a case. This line is not necessary to Scalia's conclusion, but it does not speak well as to his analysis. He does some similar things with a few other cases that touch on the second amendment but are silent as to substance of the amendment. While not as bad as above, still a bit odd.

The rationale for holding that the DC ban on hanguns is not a reasonable regulation is that they are really popular, and useful because one can dial the phone with one hand while holding the gun in the other. So much for judicial deference to legislative policy determinations.

There was no finding that this new formulation of the second amendment will apply to state gun laws, nor that it will overturn many federal laws. Scalia all but states that bans on automatic weapons are just peachy keen, as are provisions about felons and the mentally ill. The weakness of the holding finding the handgun ban not a reasonable regulation indicates that the practical effect of this opinion will be limited because it largely relies on present ownership patterns without noting that existing laws have a very solid effect on those patters.

webfusion

26th June 2008, 10:14 AM

When was the national guard BYOG?

In the American War of Independence, the local militias were able to be formed as a result of the fact that individuals owned muskets. And bayonets.
Even during the US Civil War, the Confederacy was composed of troops that brought their own weapons when they joined.

Jimbo07

26th June 2008, 10:21 AM

Wrong again.

The duel is a very formal social ritual, and has existed in numerous human societies at various times and places.

... and has been ridiculous every time. Whether sword or pistol, a duel comes from some crybaby being insulted...

** edited **

Got rid of the second part of my post, because I really just wanted to share my opinion on duelling.

Giggywig

26th June 2008, 10:25 AM

volatile

26th June 2008, 10:35 AM

The Court found that the prefatory clause announces a purpose, but does not limit or expand the scope of the operative clause.
But why do you keep insisting your reading is the only sensible one? Why do you keep dismissing your opposition as unreasonable?

The Court could announce that the sky was pink, it wouldn't change reality.

The sentence is about militias. The clause, which establishes "well-regulated militias" as "necessary" in fact seems to actively exclude private, unregulated gun ownership (because it is not "well-regulated", and has nothing to do with militias), and if you'd read it as you would any normal English sentence, that would become clear. The first clause establishes the conditions for bearing arms, quite clearly.

It really is baffling that someone can claim, as the OP does, that a sentence which includes the words "a well-regulated militia being necessary for the security of a free state" isn't actually about militias at all. I don't understand the weird distortive lens that is the pro-gun lobby, at all.

Architect

26th June 2008, 10:38 AM

Sigh.

Drudgewire

26th June 2008, 10:39 AM

Leif Roar

26th June 2008, 10:41 AM

That is what duels are about, someone dis's you and you fight them hopefuly kill them.

Actually, formalised duels were a social convention that controlled and limited the use of violence. Basically, rather than having a heated argument turning directly into a violent fight, it was sidetracked into a challenge for a duel. This was a way to let tempers cool and let the persons involved work out their differences. There would usually be significant pressure from family, friends and people in authority to make amends and call off the duel. Only if this failed would the disagreement end up causing violence, and that violence would be carefully controlled and limited to the protagonists.

volatile

26th June 2008, 10:42 AM

Nope. You interpret the comma one way, the Supreme Court interpreted it the other (and correct) way. "You have the right to bear arms. Want a specific reason? OK, someday you might have to overthrow the government and should have arms at the ready so you can form a militia. Happy now?"

It's not just the comma. It's also the words "well-regulated", "militia" and the collective noun "people", which have specific meanings that, together, produce a sentence that is entirely the inverse of "unregulated individual private gun ownership".

The comma just underscores that fact.

Drudgewire

26th June 2008, 10:45 AM

It's not just the comma. It's also the words "well-regulated" and "militia", which have specific meanings that are entirely the inverse of "unregulated private gun ownership".

The comma just underscores that fact.

If we have to form a militia, it will be a little too late after the fact to suddenly ask an oppressive government to legalize the sale of firearms so we can rise up against them.

But the point of the ruling is that there are two separate clauses in the amendment. The right to bear arms stands alone, as does the right to a well-regulated militia. And you don't need the second part to make the first part one of our constitutional rights.

Leif Roar

26th June 2008, 10:50 AM

It's not just the comma. It's also the words "well-regulated", "militia" and the collective noun "people", which have specific meanings that, together, produce a sentence that is entirely the inverse of "unregulated individual private gun ownership".

The comma just underscores that fact.

Still, it is the responsibility and authority to interpret the constitution lies with the supreme court, so the supreme court's interpretation is, by definition, the correct one. (We can of course argue the soundness of the Supreme Court's reasoning, but that has strictly academical interest.)

volatile

26th June 2008, 10:51 AM

If we have to form a militia, it will be a little too late after the fact to suddenly ask an oppressive government to legalize the sale of firearms so we can rise up against them.

Irrelevant to the discussion of the meaning of the Second Amendment as written, especially as it requires you to read the words "against the Government" into the sentence.

But the point of the ruling is that there are two separate clauses in the amendment. The right to bear arms stands alone, as does the right to a well-regulated militia. And you don't need the second part to make the first part one of our constitutional rights.

The are not separate clauses, because the first clause is a sub-clause of the second. Both clauses contain collective nouns, make no mention of individual ownership, and, taken together, establish conditions (a well-regulated militia, gun ownership of the people, collectively) that are entirely the opposite of individual, unregulated gun ownership. You speak English, and well. Why do you resort to such syntactical torture here?

Now - the rights and wrongs of individual gun ownership are a different issue, and should perhaps be settled with a new, and clear, amendment. But trying to pretend the Second says the opposite to what it actually does is just facetious.

volatile

26th June 2008, 10:52 AM

Still, it is the responsibility and authority to interpret the constitution lies with the supreme court, so the supreme court's interpretation is, by definition, the correct one. (We can of course argue the soundness of the Supreme Court's reasoning, but that has strictly academical interest.)

Of course. I understand that entirely.

Doesn't mean the Court's not wrong, though, or that its interpretation isn't just weird from a semantic standpoint.

Leif Roar

26th June 2008, 10:58 AM

Of course. I understand that entirely.

Doesn't mean the Court's not wrong, though, or that its interpretation isn't just weird from a semantic standpoint.

Actually, it does mean that the Court's not wrong. The Supreme Court is the interpreting authority so any legal interpretation it makes is, by definition, the right one. (As the right interpretation of the constitution is the one made by the Supreme Court.) It might be unsound, in that the reasoning behind the court's decision is flawed, but it can't be erronous or wrong.

Drudgewire

26th June 2008, 10:59 AM

Now - the rights and wrongs of individual gun ownership are a different issue, and should perhaps be settled with a new, and clear, amendment. But trying to pretend the Second says the opposite to what it actually does is just facetious.

The second amendment is interpreted as "private ownership of firearms for home defense is legal and shall not be infringed upon."

Supreme Court just said so, and all other interpretations are nothing more than lip service as of 10:15 am EST on 6/26/08. :D

Neally

26th June 2008, 11:36 AM

Doesn't mean the Court's not wrong, though, or that its interpretation isn't just weird from a semantic standpoint. Not at all weird if you look historically at where James Madison was coming from when he wrote the amendment and what his intention was.

Madison said that Americans had "the advantage of being armed," that was lacking in other nations, where "the governments are afraid to trust the people with arms."

The DOJ did an opinion paper that discuss this and came to the same opinion that The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.

http://www.usdoj.gov/olc/secondamendment2.pdf

volatile

26th June 2008, 11:49 AM

The second amendment is interpreted as "private ownership of firearms for home defense is legal and shall not be infringed upon."

Supreme Court just said so, and all other interpretations are nothing more than lip service as of 10:15 am EST on 6/26/08. :D

I get that. I get that you're happy, and I understand that the legal and democratic process of your country has decided that private gun ownership is OK.

What I don't get is why this necessitates some completely weird semantic wrangling. Why not just say "The Second Amendment is clearly about militias, but we, as a country, want to crystallise the further right to private ownership to arms, so let's do that properly and transparently with a new, clear amendment". It's like you have to jump through weird, semantic twists just to make it feel like you're right.

This is torturous abuse of the English language in the pursuit of a strange ideology, and it's so strange to witness from afar.

cafink

26th June 2008, 11:51 AM

The sentence is about militias. The clause, which establishes "well-regulated militias" as "necessary" in fact seems to actively exclude private, unregulated gun ownership (because it is not "well-regulated", and has nothing to do with militias), and if you'd read it as you would any normal English sentence, that would become clear. The first clause establishes the conditions for bearing arms, quite clearly.

I don't think that is clear at all. I do not see how the first clause can be read as establishing a condition for bearing arms. It merely establishes the reason for the the right to bear arms.

volatile

26th June 2008, 11:53 AM

Not at all weird if you look historically at where James Madison was coming from when he wrote the amendment and what his intention was.

Madison said that Americans had "the advantage of being armed," that was lacking in other nations, where "the governments are afraid to trust the people with arms."

The DOJ did an opinion paper that discuss this and came to the same opinion that

http://www.usdoj.gov/olc/secondamendment2.pdf

That might be the court decision, reached through a particular ideological lens, but it manifestly is not what the text of the Amendment means in the English language. That's what I'm arguing against here - that somehow the text of the Amendment itself supports private gun ownership. It doesn't. It obviously doesn't, because it talks about "a well-regulated militia", and the right of "the People", collectively, to "bear arms". Which is the opposite of unregulated private gun ownership.

Whether or not private gun ownership is good or bad, the text of the amendment simply does not support it.

volatile

26th June 2008, 11:54 AM

I don't think that is clear at all. I do not see how the first clause can be read as establishing a condition for bearing arms. It merely establishes the reason for the the right to bear arms.

The key word is necessary.

Suddenly

26th June 2008, 11:55 AM

Sound and fury signifying nothing.

There is a right. Whatever. This is of concern mostly to academics. Next page.

It leaves completely open the real question: how far can the Federal government go in regulating this right. The implication is that it can go pretty far.

If it makes someone happier that a gun law is in place as a permissible regulation of a right to bear arms rather than just there, great...

NoZed Avenger

26th June 2008, 11:56 AM

And from The Hill (http://thehill.com/leading-the-news/supreme-court-shoots-down-d.c.-gun-ban-2008-06-26.html)

The District since 1976 has restricted handgun ownership to former or current law enforcement officers who registered their guns before 1977.

* * *

D.C. Mayor Adrian Fenty and other supporters of the ban argue that restricted gun ownership is a tactic to battle gun violence in the city.

And how has that been working out for DC since 1976, Mr. Mayor?

volatile

26th June 2008, 11:57 AM

If it makes someone happier that a gun law is in place as a permissible regulation of a right to bear arms rather than just there, great...

Well, quite. You're exactly right. All this constitutional hand-waving is just bizarre, and, I think, serves as a buffer to real debate on the issue.

Garrette

26th June 2008, 12:00 PM

Sound and fury signifying nothing.

There is a right. Whatever. This is of concern mostly to academics. Next page.Which volatile has made quite clear; it is an academic/semantic discussion. Nothing wrong with that; don't participate if you don't care for it.

That might be the court decision, reached through a particular ideological lens, but it manifestly is not what the text of the Amendment means in the English language. That's what I'm arguing against here - that somehow the text of the Amendment itself supports private gun ownership. It doesn't. It obviously doesn't, because it talks about "a well-regulated militia", and the right of "the People", collectively, to "bear arms". Which is the opposite of unregulated private gun ownership.Staying in the semantic realm, you haven't convinced me. My earlier post still stands. It can just as obviously be read to mean that to achieve the purpose of a well regulated militia, the means must be protected and the means are found in an individual right.

Drudgewire

26th June 2008, 12:05 PM

I've just written the ACLU (which yes, I'm a member of) to see if they're going to change their policy:

http://www.aclu.org/police/gen/14523res20020304.html

ACLU POLICY

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." — Policy #47

Guess what guys? It's a civil right now. Get with the program. :D

Garrette

26th June 2008, 12:11 PM

I've just written the ACLU (which yes, I'm a member of) to see if they're going to change their policy:

http://www.aclu.org/police/gen/14523res20020304.html

Guess what guys? It's a civil right now. Get with the program. :DGranting you gave it a smilie, but it is possible to disagree with a Supreme Court decision without being hypocritical.

What was the ACLU's stanc in Kelo v. City of New London (http://http://www.law.cornell.edu/supct/html/04-108.ZS.html)?

cafink

26th June 2008, 12:13 PM

The key word is necessary.

I don't understand how that word gives the clause the meaning you ascribe to it. If the second amendment said, "A well regulated militia being desirable for the security of a free State..." would that change the subsequent clause's meaning?

Drudgewire

26th June 2008, 12:16 PM

Granting you gave it a smilie, but it is possible to disagree with a Supreme Court decision without being hypocritical.

Agreed, but since my membership dues are coming up it's pretty much going to be the determining factor as to whether or not I remain a member.

And damnit, I wasn't going to update my NRA membership but now I gotta get the next issue of First Freedom where they celebrate the patootie out of this.

Garrette

26th June 2008, 12:29 PM

Agreed, but since my membership dues are coming up it's pretty much going to be the determining factor as to whether or not I remain a member.

And damnit, I wasn't going to update my NRA membership but now I gotta get the next issue of First Freedom where they celebrate the patootie out of this.Holy Schmokes, Drudgeman! Is it possible to be a member simultaneously of the ACLU and the NRA?

Why do you hate my caricature of America?

Drudgewire

26th June 2008, 12:34 PM

Holy Schmokes, Drudgeman! Is it possible to be a member simultaneously of the ACLU and the NRA?

Why do you hate my caricature of America?

When I worked in film production my boss once told me he had never met anyone who he couldn't read immediately. But every single time he thought he had me pegged, I'd say something that totally destroyed his psychological profile of me.

To be honest though, I've always hated the fact the two groups don't go hand in hand. I love the first amendment, and I love the second amendment. Seems clear enough to me. v:)v

volatile

26th June 2008, 12:49 PM

Staying in the semantic realm, you haven't convinced me. My earlier post still stands. It can just as obviously be read to mean that to achieve the purpose of a well regulated militia, the means must be protected and the means are found in an individual right.

Well, here's my analysis again, and why I don't think the arms comes prior to the militia.

- The sentence structure asserts primacy to the militia clause. It comes first.

- "The People" is a collective noun. It is different from "individual citizens", and functions linguistically and conceptually different from even the word "people" on its own.

- "Well-regulated" sits in opposition to the court's judgement, to my mind. A well-regulated militia is the opposite to everyone having the direct right to own guns individually.

- "People have the right to bear arms" carries the force you are ascribing to the current text of the Second. As soon as you add sub-clauses, the sentence becomes qualified.

- Militia agrees linguistically as a collective noun with "the people". Militia are bands of armed citizenry designed to protect the people as a whole; that's what a militia is. So it strikes me as rather clear that the sentence means that the people, collectively, are allowed to bear arms through the means of a militia. Why mention militia (particularly a "well-regulated" one) otherwise? It simply isn't necessary in the sentence otherwise, especially given that nowhere else in the constitution, as I'm aware, are reasons for the stated rights given.

- "being necessary" implies that the establishment of a militia is the key purpose of the sentence.

- Dairy farms being necessary for the production of milk, the right of the
people to own cows shall not be infringed. In this substitutional analogy, it becomes clearer that the productive collective use is what is being established. There's no implication in this sentence that singular private cow ownership is desirable, because it does not fall into the usefulness of dairy farming. The sentence is obviously establishing collective cow ownership (via dairy farms) as a useful act, not individual cow ownership.

Garrette

26th June 2008, 01:00 PM

volatile,

I understand your interpretation of it. What I do not agree with is your insistence that it is the only reasonable interpretation. My post on the first page (http://forums.randi.org/showthread.php?postid=3807412#post3807412) gives an equally plausible interpretation.

Perhaps if we keep the structure but change the nouns it will be clearer:

A well-regulated NFL, being necessary to the economy of a free state, the right of the people to keep and use footballs, shall not be infringed.

i.e., We want an NFL, but to have an NFL we have to allow people individuals to keep footballs.

Further ETA: I read down to but not including your cow analogy before posting mine. We have a fundamental disagreement. I absolutely see an individual right of ownership in your cow analogy. The purpose is to ensure collective dairy farming, but the means is individual ownership.

Tez

26th June 2008, 01:15 PM

I am always baffled by this issue. It seems pretty clear the constitution allows for individuals to bear firearms. Fine. But the constitution is not holy writ. IMO it is a completely anachronistic document in some respects, and to fail to change it according to modern circumstances is absurd, and would have been found as absurd by those involved in writing it.

It requires but a very small glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non-repealing passes for consent.

...

The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living or the dead?

(From "The Rights of Man")

Garrette

26th June 2008, 01:19 PM

SDC

26th June 2008, 01:34 PM

I agree with those who are saying that, well the Supreme Court has spoken, more clearly than it has before in this area; and we need to learn to live with it, and not complain about the decision or try to prove it, somehow, wrong.

OK then!! Who's going to set up a Gun Market every Saturday morning (9 am-2 pm) in the summer in my suburban train station parking lot, right next to the Farmers' Market?

ETA: ps Can we somehow use this to tick off the foreigners something royal? Let's start with the Canadians.

GreyICE

26th June 2008, 01:46 PM

marksman

26th June 2008, 01:48 PM

Whew!

I've now read the entire 157-page decision (including dissents). And from what I can glean, the crux of the difference between the majority and minority comes down to what the sides respectively feel was the purpose of militia in the 18th century.

The minority takes the "short view". It looks at militia only in the context of the colonial experience and states that militia were in fact the State's version of an army. The militia is designed to prevent exclusively external threats such as Indian attack, foreign powers, or, of course, the tyranny of King or the federal government. In such a view, individual self-defense is not a mainstay of the right, which is really about allowing the States to maintain their military readiness.

The majority takes what I would call the "long view". They look at the history of militia in England and the US from the 1600's through the 1780's. They cite the initial use of militia as what would today be considered paramilitary groups. These militia were born in the Protestant-Catholic wars during England's Civil War and the "right to keep and bear arms" was born in the aftermath of the Civil War in which the King (and later, Cromwell) would appoint "special militias" who would be empowered to run off and disarm other militias. The right to keep and bear arms was designed to allow minorities within the polity to defend themselves from other groups who may or may not be acting with official imprimatur. The majority acknowledges the minority's "short view" but tries to put it into context as a natural outgrowth of the original view of militia as groups within a community banding together for mutual defense. In this view, self-defense is an important aspect of the right to bear arms because the individual's gun was used not only to defend the State, but to defend himself, whether against the State or against some lawless mob seeking to kill him or his companions because of their beliefs.

I can't say which side is right or wrong from an historical context. They both cite 17th and 18th century documents and legal precedent. They both take issue with one another's support. In the end, without a time machine, I don't think one can definitively say either of them got the documents wrong.

And to be sure, this distinction seems utterly anachronistic in the modern age. And Scalia's majority even acknowledges the anachronism in pages 55 to 56 of the decision, which I think is worth reprinting:

It may well be true that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause ["a well-regulated militia being necessary"] and the protected right ["to keep and bear arms"] cannot change our interpretation of the right.

I note that the dissent did not take issue with this portion of Scalia's opinion.

So, yes, the Second Amendment is anachronistic under either the majority's view that it is intended to allow people to maintain arms to defend themselves against roving bands of lawless (or sinisterly deputized) gun-toting mobs, or the minority's view that it is intended to provide individual States with latter-day Minutemen ready to protect the populace from Indian raids and Canadians. But "anachronism" isn't a basis for invalidating a Constitutional amendment.

Drudgewire

26th June 2008, 01:48 PM

OK then!! Who's going to set up a Gun Market every Saturday morning (9 am-2 pm) in the summer in my suburban train station parking lot, right next to the Farmers' Market?

Give me a few months. I'm just starting to look at my FFL paperwork. :cool:

Leif Roar

26th June 2008, 01:52 PM

volatile,

I understand your interpretation of it. What I do not agree with is your insistence that it is the only reasonable interpretation.

Particularly since seas of ... uh, pixels[1] has been wasted on discussing just how the second amendment should really be interpreted. Whichever way you cut it, it's a pretty awkwardly worded phrase, and it's certainly not been obvious how to interpret it.

[1] What would be a good collective noun for pixels anyway? "A pornography of pixels"?

ZirconBlue

26th June 2008, 01:57 PM

Militias are not standing armies. They are called up when needed from the civilian populace, who (historically) provide their own arms. Therefore, in order to have a "well-regulated militia" when needed, the citizenry has to already have arms in their possession.

Garrette

26th June 2008, 01:59 PM

Particularly since seas of ... uh, pixels[1] has been wasted on discussing just how the second amendment should really be interpreted. Whichever way you cut it, it's a pretty awkwardly worded phrase, and it's certainly not been obvious how to interpret it.Fortunately, I am still around to set them all straight...

[1] What would be a good collective noun for pixels anyway? "A pornography of pixels"?On some computers this is quite often true. I make no claims about my own...

Garrette

26th June 2008, 02:00 PM

OnlyTellsTruths

26th June 2008, 02:05 PM

Completely as an aside (no opinion implied)…… I tend to lend more weight to 9-0 through 6-3 decisions than I do a 5-4 one.

Garrette

26th June 2008, 02:07 PM

Completely as an aside (no opinion implied)…… I tend to lend more weight to 9-0 through 6-3 decisions than I do a 5-4 one.Quite a reasonable academic position but an untenable legal one.

marksman

26th June 2008, 02:08 PM

As do we all, but that's not always possible.

WildCat

26th June 2008, 02:08 PM

The Court could announce that the sky was pink, it wouldn't change reality.

The sentence is about militias. The clause, which establishes "well-regulated militias" as "necessary" in fact seems to actively exclude private, unregulated gun ownership (because it is not "well-regulated", and has nothing to do with militias), and if you'd read it as you would any normal English sentence, that would become clear. The first clause establishes the conditions for bearing arms, quite clearly.
So your claim is the second part was to give the Army reserve the right to have arms? That, frankly, is ridiculous.

Garrette

26th June 2008, 02:09 PM

So your claim is the second part was to give the Army reserve the right to have arms? That, frankly, is ridiculous.The militia equates more to the National Guard than to the Reserve, but point taken.

Gagglegnash

26th June 2008, 02:18 PM

Hi

Of course.

The people, collectively as you rightly assert, have the right to bear arms in the form of the necessary well-regulated militias. Collectively. Not individually, and not outside of the Well-regulated militia.

In what way does uninhibited individual gun ownership necessarily pre-figure a well-regulated militia, which is the absolute opposite?

Sooo... all those other, "the people"s can be interpreted as a collective right too, then, right? You have to be a part of a group to have a nice peaceful assembly or bring suit against the government if, "the people," is a collective. You have to be in some kind of a group to avoid unreasonable search of you home and person, and avoid seizure of your stuff without warrant.

Why, if you want to analyze the Constitution syntactically, would, "the people," have a different semantic origins for the second amendment than the others?

To maintain consistency, the people who wrote the thing would use identical words to describe identical concepts.

(Note the sentence structure in the previous paragraph. Ablative absolute (http://en.wikipedia.org/wiki/Ablative_absolute#Ablative_absolute).)

I'm really looking forward to reading the Minority Opinion on this one, too.

WildCat

26th June 2008, 02:29 PM

The militia equates more to the National Guard than to the Reserve, but point taken.
D'oh, too much time in the heat today. I knew that... :p

skeptifem

26th June 2008, 02:30 PM

I agree about 'the people' being the most important part. if they meant 'people within a well regulated militia only' they would have friggin said that, but they didnt. its not as though the document was slapped together and that the wording was sloppy. many people have suggested that the historical context screams that they did indeed mean 'the people' to mean everyone, militia or not. seems to me like the idea is that citizens of the us need to be able to fight against the government if the need arises, and if the government is the only side with guns then we could potentially get screwed into multiple types of oppressive government without even getting a chance to fight back. thats my take on it anyway.

GeeMack

26th June 2008, 02:51 PM

That might be the court decision, reached through a particular ideological lens, but it manifestly is not what the text of the Amendment means in the English language. That's what I'm arguing against here - that somehow the text of the Amendment itself supports private gun ownership. It doesn't. It obviously doesn't, because it talks about "a well-regulated militia", and the right of "the People", collectively, to "bear arms". Which is the opposite of unregulated private gun ownership.

Normally there would be a consensus agreement if something is considered "obvious", so it's interesting that you're the only one here who finds that particular interpretation to be so clear and obvious. But then again, maybe the word "obvious" is open to a looser interpretation than I had previously understood.

Oh, and while you're nitpicking semantics, volatile, where in the United States would you find anything that might be described as "unregulated private gun ownership"?

Whether or not private gun ownership is good or bad, the text of the amendment simply does not support it.

May I remind you that the highest court in the US has decided that your interpretation is incorrect. As Drudgewire already mentioned...

The second amendment is interpreted as "private ownership of firearms for home defense is legal and shall not be infringed upon."

Supreme Court just said so, and all other interpretations are nothing more than lip service as of 10:15 am EST on 6/26/08. :D

Quad4_72

26th June 2008, 02:51 PM

Well, here's my analysis again, and why I don't think the arms comes prior to the militia.

- The sentence structure asserts primacy to the militia clause. It comes first.

- "The People" is a collective noun. It is different from "individual citizens", and functions linguistically and conceptually different from even the word "people" on its own.

- "Well-regulated" sits in opposition to the court's judgement, to my mind. A well-regulated militia is the opposite to everyone having the direct right to own guns individually.

- "People have the right to bear arms" carries the force you are ascribing to the current text of the Second. As soon as you add sub-clauses, the sentence becomes qualified.

- Militia agrees linguistically as a collective noun with "the people". Militia are bands of armed citizenry designed to protect the people as a whole; that's what a militia is. So it strikes me as rather clear that the sentence means that the people, collectively, are allowed to bear arms through the means of a militia. Why mention militia (particularly a "well-regulated" one) otherwise? It simply isn't necessary in the sentence otherwise, especially given that nowhere else in the constitution, as I'm aware, are reasons for the stated rights given.

- "being necessary" implies that the establishment of a militia is the key purpose of the sentence.

- Dairy farms being necessary for the production of milk, the right of the
people to own cows shall not be infringed. In this substitutional analogy, it becomes clearer that the productive collective use is what is being established. There's no implication in this sentence that singular private cow ownership is desirable, because it does not fall into the usefulness of dairy farming. The sentence is obviously establishing collective cow ownership (via dairy farms) as a useful act, not individual cow ownership.

Supreme Court says you are wrong...

Gagglegnash

26th June 2008, 03:18 PM

Hi

In what state do you live, volatile?

I ask because I was actually quite surprised what the Federal government and the state of Indiana consider, "militia."

TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

... clip ...

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(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.

IC 10-16-6-1
Age of personnel
Sec. 1. Under Article 12, Section 1 of the Constitution of the State of Indiana, the militia consists of all persons who are at least eighteen (18) years of age except those persons who are exempted by the laws of the United States or of Indiana.
As added by P.L.2-2003, SEC.7. Amended by P.L.115-2003, SEC.17.

IC 10-16-6-2
Classes of militia
Sec. 2. The militia shall be divided into two (2) classes, the sedentary militia and the national guard, as follows:
(1) The sedentary militia consists of all persons subject to bear arms under the Constitution of the State of Indiana who do not belong to the national guard.
(2) The national guard consists of those able-bodied citizens between the proper ages as established by this article who may be enrolled, organized, and mustered into the service of the state as provided in this article. The organized militia of the state constitutes and shall be known as the Indiana national guard.
As added by P.L.2-2003, SEC.7.

So, yeah: I may be/may have been unorganized and sedentary, but I am well regulated in that I meet all the requirements to own firearms and for Indiana to allow me to carry a firearm concealed.

So, the question I'm asking is: Who's in your state militia?

WildCat

26th June 2008, 03:27 PM

Hi

In what state do you live, volatile?
Volatile's a foreigner... in fact, it seems most people here unhappy with the decision are foreigners.

Almo

26th June 2008, 03:32 PM

and it's exactly what every supporter of gun ownership rights is thinking.

I disagree with this point.

Garrette

26th June 2008, 03:39 PM

I disagree with this point.Well, I know at least one of us was being sarcastic. I'm hoping it was actually two.

Suddenly

26th June 2008, 03:45 PM

So your claim is the second part was to give the Army reserve the right to have arms? That, frankly, is ridiculous.

Properly stated, the position is that the second amendment exists so that the Federal Government cannot restrict a person's membership in a state militia.

This was a legitimate concern at the time of the ratification, given that the Constitution featured a far more centralized government than the Articles of Confederation it replaced, and there were those that this made nervous.

Even though the majority opinion is wrongly decided in my opinion, it is nice that this will be hopefully the last thread where we all make the same arguments over and over as to the text, intent of the framers, the meaning of Miller, and other things that have felled forests and killed innocent electrons. All over an issue that isn't really going to change much.

A handful of votes in Florida, or a faster replacement of the butterfly ballot and this goes the other way. While this is not that big of a deal in the big picture, there are a lot of questions still out there. There is a four vote conservative bloc in today's court. One more and kiss goodbye things like the right to privacy, significant restraint on police investigation, and who knows what with respect to church and state....

CaptainManacles

26th June 2008, 04:02 PM

- Dairy farms being necessary for the production of milk, the right of the
people to own cows shall not be infringed. In this substitutional analogy, it becomes clearer that the productive collective use is what is being established. There's no implication in this sentence that singular private cow ownership is desirable, because it does not fall into the usefulness of dairy farming. The sentence is obviously establishing collective cow ownership (via dairy farms) as a useful act, not individual cow ownership.

I'm not exactly sure how that sentence would be intepreted like that, again, I think most people would intepret "the people" as "each individual citizen", in which case it would be read exactly the way we are saying.

But another good semantical analogy would be "An air force being neccisary to the security of a free state, the right of the people to keep and bare surface to air missles shall not be infringed"

There you can see another perfectly reasonable reading of it, and definately the most rational, given that if they wanted to say what you're saying they ment, they would have simply said "A well regulated militia, being neccisary to the security of a free state, the right of the militia to keep and bare arms shall not be infringegd." Besides pointing out that your whole arguement rests on the assumption that somehow they didn't have state militias back then, which is ridiculous, or pointing out the fact that legally, all abled bodied males over 18 are considered part of the federal militia, so, I guess your intepretation means that all men have the right to bare arms but not women?

Gagglegnash

26th June 2008, 04:06 PM

Hi

I would have said that the five-vote were the conservatives.

Have you read about this other significant recent decision (http://www.washingtonpost.com/wp-dyn/content/article/2008/06/25/AR2008062502614.html?nav=rss_email/components)?

Seems like they're on the ball, individual-protection-wise.

WildCat

26th June 2008, 04:12 PM

One more and kiss goodbye things like the right to privacy, significant restraint on police investigation, and who knows what with respect to church and state....
Your liberal bloc did away nicely with property rights in the Kelo decision.

WildCat

26th June 2008, 04:18 PM

Properly stated, the position is that the second amendment exists so that the Federal Government cannot restrict a person's membership in a state militia.

This was a legitimate concern at the time of the ratification, given that the Constitution featured a far more centralized government than the Articles of Confederation it replaced, and there were those that this made nervous.
So the Bill of Rights was really a Bill of State's Rights? Or does the meaning of "the people" vary from amendment to amendment? If so, can you identify in which other parts of the Constitution "the people" really means "the states"?

SezMe

26th June 2008, 04:20 PM

I am always baffled by this issue. It seems pretty clear the constitution allows for individuals to bear firearms. Fine. But the constitution is not holy writ. IMO it is a completely anachronistic document in some respects, and to fail to change it according to modern circumstances is absurd, and would have been found as absurd by those involved in writing it.
The issue is not whether to change it but how to interpret it. That wording quibble aside, you have hit on a fundamental difference between those interested in USA jurisprudence. Generally - but I emphasize not strictly - this difference does follow the political conservative/liberal divide.

Those who interpret the words in the constitution in accordance with the framers intent are called orginalists. Scalia is the quintessential orignalist, as he proudly claims himself. The orginalists look to the writings, beliefs and intents of the authors of the constitution to find the correct way to interpret it.

Those on the other side (I'm not sure what to call them) see the constitution as a living document. In their eyes, the proper interpretation can be found not only in the original intent but also in the context of the times and culture in which the decision is made.

So any "absurdity" that exists depends on which side of the issue you stand on.

Quad4_72

26th June 2008, 04:33 PM

Regardless of what anyone here says who thinks that the second amendment does not refer to individual rights, supreme court says you are WRONG. Give it up.

Architect

26th June 2008, 04:46 PM

Volatile's a foreigner... in fact, it seems most people here unhappy with the decision are foreigners.

Sauce for the goose, sauce for the gander. USians gonna stop commenting on decisions other countries make?

dudalb

26th June 2008, 04:55 PM

The second amendment doesn't mention firearms. Just Arms.

Because killing people over insults is what we want to encourage, just look at the inner city youth, they have got it so right.

BY that logic, because some people overeat, we should have universal food rationing to insure that no one overeats.
I am not against all regulation of firearms..I see nothing wrong with through background checks before being allowed to purchase a gun, but out and out banning a whole class weapons was wrong.

dudalb

26th June 2008, 04:58 PM

And let us not forget the 1850 fracas on the Senate floor between Missouri's Senator Thomas Hart Benton and Mississippi Senator Henry Foote (http://www.senate.gov/artandhistory/history/minute/Bitter_Feelings_In_the_Senate_Chamber.htm).

Hell that was nothing compared to the duel that Benton fought with Andy Jackson in his younger days. It sounds like something out of a Hollywood movie,and left Jackson carrying some lead for the rest of his life.
The irony is in later years they became freinds and political allies.

The Painter

26th June 2008, 04:59 PM

Sauce for the goose, sauce for the gander. USians gonna stop commenting on decisions other countries make?

Sure, why not? I don't give 2 craps what you do over there. Just keep it over there. Our constitution is based on things that tore us away from Europe. Of course you will disagree with it. You're supposed to. We don't want to be like you. Got it??????

This place has become predictable and cliqued and clichéd. BORING.

Quad4_72

26th June 2008, 05:10 PM

sure, Why Not? I Don't Give 2 Craps What You Do Over There. Just Keep It Over There. Our Constitution Is Based On Things That Tore Us Away From Europe. Of Course You Will Disagree With It. You're Supposed To. We Don't Want To Be Like You. Got It??????

This Place Has Become Predictable And Cliqued And Clichéd. Boring.

Agreed.

SezMe

26th June 2008, 05:22 PM

This place has become predictable and cliqued and clichéd. BORING.
Typical Painter comment. *yawn*

SDC

26th June 2008, 05:31 PM

Give me a few months. I'm just starting to look at my FFL paperwork. :cool:

Hoo-hah! I can hardly wait to take an assault rifle to a pile o' organic broccoli. Preferably wearing Earth Shoes (anyone remember those? The ones that tilt you over backwards). While munchin' granola.

Have I missed any cliches?

ps Let's invade England, or Germany, or someone. Send over armies of heavily armed tourists. If we invade England the Scots will help. And if we invade Germany, well, let's just say that a lot of people might help.

pps Who wants to bet that this latest decision, right or wrong, correctly or incorrectly reasoned, has zero effect on the crime rate? Except in so far as it gives one more thing for Scalia to carrying under those saucy robes he wears...

quixotecoyote

26th June 2008, 05:48 PM

pps Who wants to bet that this latest decision, right or wrong, correctly or incorrectly reasoned, has zero effect on the crime rate? Except in so far as it gives one more thing for Scalia to carrying under those saucy robes he wears...

I'll bet it has no effect initially. I bet it'll take a couple years for legally purchased guns to really start hitting the streets.

WildCat

26th June 2008, 05:54 PM

Sauce for the goose, sauce for the gander. USians gonna stop commenting on decisions other countries make?
When did I suggest you should stop commenting?

WildCat

26th June 2008, 05:57 PM

I'll bet it has no effect initially. I bet it'll take a couple years for legally purchased guns to really start hitting the streets.
Seeing as DC's firearms murder rate is higher now than when the ban went into effect 30 years ago I doubt it will make things worse.

Quad4_72

26th June 2008, 06:08 PM

You know what I find funny? People from other countries who think THEY are right as opposed to our supreme court justices with regards to our right to bear arms.

quixotecoyote

26th June 2008, 06:09 PM

Seeing as DC's firearms murder rate is higher now than when the ban went into effect 30 years ago I doubt it will make things worse.

Maybe it'll be a counterintuitive outcome, but my initial reaction is that if you put more guns on the legal market, more guns will find their way into illegal hands, causing more gun violence.

I also expect to see the firearm accident rate increase fairly linearly with the number of guns purchased. I bet we could find some stats on that, but there's SO many bad statistics out there I don't feel up to wading through them for the good stuff.

Drudgewire

26th June 2008, 06:19 PM

Maybe it'll be a counterintuitive outcome, but my initial reaction is that if you put more guns on the legal market, more guns will find their way into illegal hands, causing more gun violence.

Yes because it's so hard for criminals to get guns right now, what with them having to be smuggled in from such faraway lands as Virginia and Maryland. :rolleyes:

quixotecoyote

26th June 2008, 06:21 PM

Yes because it's so hard for criminals to get guns right now, what with them having to be smuggled in from such faraway lands as Virginia and Maryland. :rolleyes:

Yes there are guns. Soon there will be MORE guns.

guns to more guns =/= no guns to guns

Drudgewire

26th June 2008, 06:28 PM

Yes there are guns. Soon there will be MORE guns.

guns to more guns =/= no guns to guns

Which doesn't equal more guns in the hands of those who commit crimes with them. For every one that gets stolen, a criminal gets shot by someone protecting their home. It all evens out in the wash. :p

luchog

26th June 2008, 06:29 PM

The People can make up a well regulated militia and then bear arms, as part of that well-regulated militia. That's what the sentence means. It specifically establishes that well-regulated militias are necessary for the freedom of the state. Private gun ownership is almost the opposite of a well-regulated militia, isn't it?

You don't have a clue what you're talking about. Are you a native English speaker?

1) Due to language drift, the meaning of the term "well-regulated" has drifted considerably. At the time of the drafting of the Constitution, the meaning was more equivalent to "proficient" and "functioning properly", eg. "a well-regulated clock" being one that kept time accurately.

2) "A well-regulated militia being necessary to the security of a free state" is what is known in English as a supportive dependent clause. That is, it has no effect whatsoever on the meaning of the self-contained sentence "the right of the people to keep and bear arms shall not be infringed". It exists in order to provide additional descriptive information about the sentence. In this case, to state the justification for the declaration made in the sentence.

3) At the time the Constitution was drafted, the "militia" consisted of all able-bodied adult male citizens. That is still the case, as evidenced by the institution and continued existence of the Selective Service.

4) The amendment says nothing whatsoever about the "freedom" of the state. Anywhere. It specifically refers to the security of a free state. Again, due to language drift, the meaning of "security" has, not change as such, but become narrower and more limited. "Security" did not refer only to protection against foreign and domestic enemies bent on invasion or destruction, or governments bent on oppression; but also for individuals to "be secure", that is, safe from, the depredations of criminals. This usage is echoed in the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". That is, safe from such things.

I would strongly recommend doing some research and actually understanding what you're talking about; instead of parotting ignorant hoplophobic propaganda.

luchog

26th June 2008, 06:34 PM

At the time the Amendment was drafted, the term "arms" was limited in meaning to "weapons that were not specifically designed for military use and were not employed in a military capacity." For example, at the time of the Second Amendment, the federal government could restrict an individual's right to own a cannon (and often did), and many States as well required all cannon and cannonballs to be held at a central armory.

Thus, for purposes of the 2nd Amendment, "arms" does not include tanks, bombs, nukes, etc. Those can be restricted legally with no Constitutional issue being present.
Specifically, it referred to any weapon likely to be carried and operated for extended periods by an average infrantryman, along with all necessary ammunition and other accoutrements. It did not include artillery, nor did it include what we would now call "crew-served weapons". It did, however, include swords, which no jurisdiction allows to be carried, to my knowledge.

quixotecoyote

26th June 2008, 06:36 PM

Which doesn't equal more guns in the hands of those who commit crimes with them. For every one that gets stolen, a criminal gets shot by someone protecting their home. It all evens out in the wash. :p

Show me a believable stat on that and I'll join the NRA. :cool:

Drudgewire

26th June 2008, 06:48 PM

Show me a believable stat on that and I'll join the NRA. :cool:

Ban's lifted, 2nd Amendment is secure.

We don't need you anymore. :D

WildCat

26th June 2008, 07:21 PM

The NRA and the Illinois Rifle Association have already sued Chicago, and Daley is going apoplectic. I heard better audio clips on the radio today, but at the 1:15 mark in this one he starts to get hysterical:

pEP9G2v-_LA

WildCat

26th June 2008, 07:36 PM

OMG, Chicago officials are so worked up over this they're actually going to use a Ron Paul argument (http://mensnewsdaily.com/archive/p/paul/ronpaul070602.htm) to defend their ban (http://www.chicagotribune.com/news/local/chi-supreme-court-gun-ban,0,3522044.story)!

City officials expressed confidence the city would prevail in any court challenge, asserting, among other things, that the 2nd Amendment as part of the Bill of Rights restricts the federal government and does not apply to state and local governments.
:dl:

casebro

26th June 2008, 08:58 PM

So what was the minority opinion? "Think of the CHILDREN"?

SezMe

26th June 2008, 11:01 PM

Actually reading the minority opinion might well answer your question, casebro. Primary sources and the like, ya know?

Bob Blaylock

26th June 2008, 11:51 PM

I've just written the ACLU (which yes, I'm a member of) to see if they're going to change their policy:

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." — Policy #47

Guess what guys? It's a civil right now. Get with the program. :D

That isn't what the Supreme Court said in U.S. vs. Miller, nor in any other ruling; and it is blatantly dishonest for the ACLU to attribute that position to the Supreme Court. What the court ruled in that case was that individual possession of a sawed-off shotgun was not protected; and it was explicitly stated that the reason that such a weapon was not protected was because, as far as the court knew, such a weapon had no military application. Had there been someone there to argue for Miller's side, then surely the court would have been informed that, in fact, such a weapon was in use by the Army at that time, and that they were known as “trench sweepers”; and the court, assuming it was consistent in its logic, would have had to rule the other way, that such a weapon was, in fact, covered by the Second Amendment.

Of course, had someone been there to argue for Miller's side of the dispute, they may well have convinced the court that a weapon didn't need to have a military application in order for an individual to have the right to possess it under the Second Amendment.

Bob Blaylock

27th June 2008, 12:04 AM

"The People" is a collective noun. It is different from "individual citizens", and functions linguistically and conceptually different from even the word "people" on its own.

The use of the term “the people” to refer to government or collective society, rather than to individuals, is a Communist concept, that has no place whatsoever in any discussion relevant to a free society. No true American — who understands and agrees with the principles upon which this nation was founded — would ever use the term “The People” in the manner that you are trying to use it. Certainly, none of the authors of the Constitution would ever have used the term “The People” in such a manner.

SezMe

27th June 2008, 12:06 AM

JoeEllison

27th June 2008, 12:09 AM

Here's the part I don't understand. The Supremes also struck down the DCs requirement that guns be equipped with trigger locks. Where in the hell in the 2nd amendment does it say anything - one way or the other - about trigger locks?That was just a freebie for the gun nuts. Safety measures are a violation of their fruitcake belief system.

Bob Blaylock

27th June 2008, 12:36 AM

Rolfe

27th June 2008, 03:52 AM

Garrette

27th June 2008, 04:00 AM

I suppose one of the things the furriners find odd about all this is the extreme weight given to a 220-year-old (or whatever) constitution. What a bunch of politicians thought was a good idea that long ago doesn't seem to me to be all that relevant when discussing what's a good idea now.

Rolfe.Being a truly ardent and long time admirer of yours, I'm surprised at this rather ill-thought response.

Aside from the fact that the mechanism to amend the document were built into it, current wisdom obviously comes into play all the time in regard to interpreting the constitution; whether or not some think it should or shouldn't, it does.

I take it you are not suggesting we discard all aged thought merely because it is aged? Newton's Principiia is no less worthy for being old or for being demonstrated incomplete. Moving away from the quantitative, Solon's "commandments" are no less worthy for being ancient.

Rolfe

27th June 2008, 04:23 AM

Note that I said "extreme" weight. Where did I say it should be discarded merely because it is old? Where did I suggest that any venerable treatises should be discounted on the grounds of their age?

Indeed, I frequently hear that mechanisms to amend the document exist. Fine. Excellent. What I'm marvelling at is the nature of the debate, which so often seems to take the form of trying to figure out what was meant in the original document, and insisting that the original document's intentions must be upheld even in the present day.

Is the universal "right" to bear arms a good thing for the society of the 21st century? This seems to me to be a debate which could be conducted in a much more constructive manner were it not for the continual harking back to 200-year-old statutes by one side of the argument.

Rolfe.

Garrette

27th June 2008, 04:47 AM

Note that I said "extreme" weight. Where did I say it should be discarded merely because it is old? Where did I suggest that any venerable treatises should be discounted on the grounds of their age?If I misunderstood, then my apologies.

Indeed, I frequently hear that mechanisms to amend the document exist. Fine. Excellent.We agree.

What I'm marvelling at is the nature of the debate, which so often seems to take the form of trying to figure out what was meant in the original document, and insisting that the original document's intentions must be upheld even in the present day.Absent a change via the aforementioned mechanisms, this stance seems quite appropriate. Otherwise it may as well not exist and we subordinate our political fate to the whims of the currently ruling party. And that is precisely what was intended to be avoided.

Is the universal "right" to bear arms a good thing for the society of the 21st century? This seems to me to be a debate which could be conducted in a much more constructive manner were it not for the continual harking back to 200-year-old statutes by one side of the argument.As a philosophical argument, I heartily agree. As a practical one, at least in the USA, it must hearken back to that document (not statutes) as well as subsequent amendments (and SCOTUS interpretations).

The processes are linked, but separate:

1. Philosophically/morally/intellectually/socially we agree that X is the best thing currently regarding individual ownership of firearms.

2. To make X happen we must use the ready-built mechanisms to amend the guiding document of the nation.

Not a difficult concept.

NoZed Avenger

27th June 2008, 05:49 AM

Indeed, I frequently hear that mechanisms to amend the document exist. Fine. Excellent. What I'm marvelling at is the nature of the debate, which so often seems to take the form of trying to figure out what was meant in the original document, and insisting that the original document's intentions must be upheld even in the present day.

I must admit I fall on the other side of this. The extreme weight given to the document was necessary in order to ensure that the government or a majority of citizens could not easily change what were considered the most important rights/laws that got the various states' representatives to agree to the compact in the first place. John Stuart Mills' tyranny of the majority was very much on their minds, and there was a great fear of federal power and its thirst for expansion (which has occurred to the Nth degree, even with these roadblocks in place).

For example: the 4th amendment. People, citing "modern" thought or concerns might well be willing to authorize house-to-house searches, even absent the protections afforded by the Amendment. The extreme weight granted that document and the difficulty in amending it is what keeps those protections in place. The same with the other rights listed within the Bill of Rights -- including this one. If "present day" concerns can override the document with regard to one, then there is no reason that they cannot override it with regard to them all.

The Constitution is meant to be a brake -- a limit on the power of government and on the will of a majority of people -- even a huge majority of people. There are limits that may not be crossed. Allowing the government -- whether through the courts or legislation or regulation -- to simply go around those limits was viewed by the Founders as unwanted.

Your mileage may vary.

JoeEllison

27th June 2008, 05:54 AM

Now - the rights and wrongs of individual gun ownership are a different issue, and should perhaps be settled with a new, and clear, amendment. But trying to pretend the Second says the opposite to what it actually does is just facetious.

Which is why we can count on right-wing yahoos to pretend in just that way... because it is wrong, and their worldview is based on being as stupidly wrong as possible. Maybe that's why they want guns so badly. They aren't especially bright, so they're scared of the whole world.

WildCat

27th June 2008, 06:02 AM

I guess someone has never heard of the Fourteenth Amendment.
And which part of the 14th Amendment allows the States to ignore the Bill of Rights?

eta: On second reading, it looks like you were commenting on the City's position?

Darth Rotor

27th June 2008, 06:02 AM

That isn't what the Supreme Court said in U.S. vs. Miller, nor in any other ruling; and it is blatantly dishonest for the ACLU to attribute that position to the Supreme Court. What the court ruled in that case was that individual possession of a sawed-off shotgun was not protected; and it was explicitly stated that the reason that such a weapon was not protected was because, as far as the court knew, such a weapon had no military application.

But there is. Trench clearing and MOUT.

DR

WildCat

27th June 2008, 06:05 AM

Leif Roar

27th June 2008, 06:07 AM

For example: the 4th amendment. People, citing "modern" thought or concerns might well be willing to authorize house-to-house searches, even absent the protections afforded by the Amendment.

On the other hand, there is the example of the 18th amendment. People, citing "modern" thought or concerns might well be willing to authorize the manufacture, sale or distribution of intoxicating liquids, even absent the prohibitions established by the Amendment.

Garrette

27th June 2008, 06:09 AM

Leif Roar

27th June 2008, 06:10 AM

You had no problem with that 220 year old doctrine when it was used to block Bush policy wrt Guantanamo, yes?

"What is the law?" and "What should the law be?" are different questions. For the first it makes sense to appeal to the authority of the Constitution. For the latter, it does not.

JoeEllison

27th June 2008, 06:10 AM

The bristles on your broad brush are a mite ticklish. I've got one labeled left-wing tree-hugging commie pinko; stand still a moment and tell me if it makes you giggle.

It IS pretty funny, because it isn't accurate. My description is sad, because it IS accurate. I wish it weren't, the world would be a better place if it weren't.:(

Garrette

27th June 2008, 06:10 AM

But there is. Trench clearing and MOUT.

DRAye, but in fairness to Bob Blaylock, his post pointed that out.

WildCat

27th June 2008, 06:11 AM

On the other hand, there is the example of the 18th amendment. People, citing "modern" thought or concerns might well be willing to authorize the manufacture, sale or distribution of intoxicating liquids, even absent the prohibitions established by the Amendment.
That didn't happen. The 21st Amendment did.

Garrette

27th June 2008, 06:13 AM

It IS pretty funny, because it isn't accurate. I agree.

My description is sad, because it IS accurate.For exactly the same small minority of gun-ownership supporters as my broad brush is of gun-ownership opponents is.

I wish it weren't, the world would be a better place if it weren't.:(It would be a better place with narrower brushes. Set it down, Sir, and step away from the paint.

Leif Roar

27th June 2008, 06:18 AM

That didn't happen. The 21st Amendment did.

How was the 21st amendment not "People, citing 'modern' thought or concerns were willing to authorize the manufacture, sale or distribution of intoxicating liquids"? Yes, they did so within the constraints through the process of constitutional amendment, but nobody has been implying other mechanisms.

The 4th amendment is relevant to the question of whether gun control[1] is legal. It is no more relevant to whether gun control should be legal than the 18th amendment was relevant to whether the manufacture, transportation and sale of intoxicating liquids should be legal back when that was an issue of contention.

[1] To use an inaccurate, but short, term.

JoeEllison

27th June 2008, 06:23 AM

I agree.

For exactly the same small minority of gun-ownership supporters as my broad brush is of gun-ownership opponents is.

It would be a better place with narrower brushes. Set it down, Sir, and step away from the paint.I narrowed my brush... "right wing yahoos." Also, it is stupid and dishonest to paint people for gun control as "gun-ownership opponents." Most people are for gun ownership, and the debate is about the amount of regulation. Even the stupid right-wing yahoos are for regulation, even the ones who claim to be against gun control.

WildCat

27th June 2008, 06:32 AM

How was the 21st amendment not "People, citing 'modern' thought or concerns were willing to authorize the manufacture, sale or distribution of intoxicating liquids"? Yes, they did so within the constraints through the process of constitutional amendment, but nobody has been implying other mechanisms.
Look at Rolfe's post. She apparently thinks that judges should be able to ignore the "220 year old document" if they feel like it.

The 4th amendment is relevant to the question of whether gun control[1] is legal. It is no more relevant to whether gun control should be legal than the 18th amendment was relevant to whether the manufacture, transportation and sale of intoxicating liquids should be legal back when that was an issue of contention.
Did you mean to say "2nd Amendment" instead of 4th, or are you using the 4th to define "security" as used in the 2nd? I'm not sure what you're saying here.

[1] To use an inaccurate, but short, term.[/quote]

ZirconBlue

27th June 2008, 06:38 AM

Which is why we can count on right-wing yahoos to pretend in just that way... because it is wrong, and their worldview is based on being as stupidly wrong as possible. Maybe that's why they want guns so badly. They aren't especially bright, so they're scared of the whole world.

Speaking of being stupidly wrong:

A) Not all supporters of gun ownership rights are "right wing". I'm assuming you still consider us "yahoos", thought.

2) Just because someone strongly supports the rights of the individual to own guns, does not mean that that person "badly" wants guns for themselves.

c) I'm dubious that there's a strong correlation between being not "especially bright" and "scared of the whole world". It seems to me that being fearless is often a trait of the stupid or ignorant.

IV) Among those you apparently consider not too bright are 5 Supreme Court Justices. While I, personally, have often disagreed with their ideology, I've never questioned their intelligence.

Lothian

27th June 2008, 06:38 AM

Look at Rolfe's post. She apparently thinks that judges should be able to ignore the "220 year old document" if they feel like it.

I have looked at both Rolfe's posts. What you claim is not apparent at all.

Leif Roar

27th June 2008, 06:42 AM

Look at Rolfe's post. She apparently thinks that judges should be able to ignore the "220 year old document" if they feel like it.

I won't speak for Rolfe, but that was not how I read her posts at all.

Did you mean to say "2nd Amendment" instead of 4th, or are you using the 4th to define "security" as used in the 2nd? I'm not sure what you're saying here.

I meant the second amendment. Slip of the fingers, sorry.

Garrette

27th June 2008, 06:54 AM

I narrowed my brush... "right wing yahoos." Got it. So your argument is against people not participating in this thread.

Also, it is stupid and dishonest to paint people for gun control as "gun-ownership opponents."I agree. My apologies for using poor terminology. I was going for shorthand and inadvertently sacrificed clarity and specificity. My apologies.

Most people are for gun ownership, and the debate is about the amount of regulation. Even the stupid right-wing yahoos are for regulation, even the ones who claim to be against gun control.I even agree with this.

Suddenly

27th June 2008, 07:08 AM

So the Bill of Rights was really a Bill of State's Rights? Or does the meaning of "the people" vary from amendment to amendment? If so, can you identify in which other parts of the Constitution "the people" really means "the states"?

I've answered this question roughly a million times, I am embracing the gift of Heller and would refer you to the search function were you really concerned with the answer.

Let it go. That was the position, and it had substantial historical and textual support in context. It is now a historical footnote.

WildCat

27th June 2008, 07:12 AM

I have looked at both Rolfe's posts. What you claim is not apparent at all.

I won't speak for Rolfe, but that was not how I read her posts at all.
She said "What a bunch of politicians thought was a good idea that long ago doesn't seem to me to be all that relevant when discussing what's a good idea now", which to me seems she doesn't think the Constitution should be given much, if any, weight by the SCOTUS when decideing on such issues.

Suddenly

27th June 2008, 07:15 AM

Your liberal bloc did away nicely with property rights in the Kelo decision.

It takes a pretty warped view of reality to believe there was a "liberal bloc" on that court.

Suddenly

27th June 2008, 07:26 AM

Lothian

27th June 2008, 07:38 AM

She said "What a bunch of politicians thought was a good idea that long ago doesn't seem to me to be all that relevant when discussing what's a good idea now", which to me seems she doesn't think the Constitution should be given much, if any, weight by the SCOTUS when decideing on such issues.First you claimed she said that they could ignore the constitution of they felt like it. Now you say she said they should not give it much, if any, weight.

Come on have another go, you are getting closer but are still a fair bit off. I know you will get her point if you keep trying.

Drudgewire

27th June 2008, 07:44 AM

Speaking of being stupidly wrong:

A) Not all supporters of gun ownership rights are "right wing". I'm assuming you still consider us "yahoos", thought.

I have three friends I shoot with. Two are total lefties, and one of them had never fired a gun until we went out and now he pretty much hassles me to go at least once a week.

Also, Hunter Thompson anyone?

Bottom line, it's a great day for individual rights and I'm off to the range to give a 200-round salute to the decision. http://www.lethalwrestling.com/upload/patriot.gif

WildCat

27th June 2008, 07:53 AM

It takes a pretty warped view of reality to believe there was a "liberal bloc" on that court.
Stevens? Breyer? Ginsburg? Not liberals according to you?

WildCat

27th June 2008, 07:55 AM

First you claimed she said that they could ignore the constitution of they felt like it. Now you say she said they should not give it much, if any, weight.

Come on have another go, you are getting closer but are still a fair bit off. I know you will get her point if you keep trying.
Sorry, no. I don't get the point, maybe you'll explain it? Or better yet, maybe Rolfe will.

Oliver

27th June 2008, 07:55 AM

... and I think most importantly, to resist an unworthy government.

*lol*

WildCat

27th June 2008, 08:01 AM

The 14th amendment does not apply the entire bill of rights to the states. There is a body of law called "incorporation doctrine."

It isn't a whackjob argument, and there are older Supreme Court opinions specifially on point that the second amendment is only a check on congressional power.
It sure seems like a wackjob argument to me. Ron Paul, for example, sees no problem with states establishing a religion because of this. As far as I've been able to tell, states must also abide by the 1st, 3rd, 4th, 5th, etc etc so why would the 2nd be exempted?

The next big case will be a challenge against a state law to test this issue. It will have a harder road than Heller because it will have to overturn a specific case.
I don't know of any state laws that may be struck down because of this, except maybe in New Jersey but I really don't know much about that one. The Chicago suburb of Morton Grove, the first city in the nation to ban handguns, has said they will abide by the SCOTUS ruling. Chicago says they'll fight so long as they have taxpayer money to spend on this lost cause.

Lothian

27th June 2008, 08:16 AM

Sorry, no. I don't get the point, maybe you'll explain it? Or better yet, maybe Rolfe will.She was commenting on the debate and expressed surprise that the debate centred on what was intended at the time as opposed to what is right today.

Criticism (by that I mean commentary) on the mechanics of a legal system is not criticism of the lawmakers who apply the system.

She did not say that SCOTUS had made a mistake in considering the original meaning just surprise that SCOTUS appeared legally bound to give priority to the wishes of the dead over the living.

At least that is how I read it.

Suddenly

27th June 2008, 08:35 AM

It sure seems like a wackjob argument to me. Ron Paul, for example, sees no problem with states establishing a religion because of this. As far as I've been able to tell, states must also abide by the 1st, 3rd, 4th, 5th, etc etc so why would the 2nd be exempted?

The problem is that the law is settled as to the part of the 1st amendment that Ron Paul is talking about. It is not settled, or at least there is argument to change, as to the second amendment.

If the only caselaw to be found said that the 1st did not apply to the states, Ron Paul would have a point. When the court actually applies the second to the states, then you will be free to paint those arguing against application with the Ron Paul brush.

Until then, no.

I'm not arguing about "should." If you want to research "incorporation doctrine" and the arguments about total v. selective incorporation and how they could apply, as well as analysis as to some of the unique textual aspects of the 2nd and how they affect the analysis, then perhaps you will find an answer. Unfortunately, this would require actually examining both sides.

Suddenly

27th June 2008, 08:50 AM

She was commenting on the debate and expressed surprise that the debate centred on what was intended at the time as opposed to what is right today.

Criticism (by that I mean commentary) on the mechanics of a legal system is not criticism of the lawmakers who apply the system.

She did not say that SCOTUS had made a mistake in considering the original meaning just surprise that SCOTUS appeared legally bound to give priority to the wishes of the dead over the living.

At least that is how I read it.

That is how I read it as well.

It is hard for many Americans to see that they more or less deify a bunch of dead lawyers as if they possess some sort of magical universal wisdom. It is one of those things drilled into the brain with such authority that even questioning the wisdom of this idea can cause a rather dramatic defensive reaction.

Once you add in the fact that these lawyers didn't generally agree and often left ambiguity in the document as a compromise, the strange American habit of arguing about some sort of specific identifiable intent is quite curious. Almost any interpretation can be supported by extrinsic evidence connected to these dead lawyers.

It is sort of like getting an Xian to realize that communion when viewed objectively is a cannibalistic ritual...

marksman

27th June 2008, 08:53 AM

I'm not arguing about "should." If you want to research "incorporation doctrine" and the arguments about total v. selective incorporation and how they could apply, as well as analysis as to some of the unique textual aspects of the 2nd and how they affect the analysis, then perhaps you will find an answer. Unfortunately, this would require actually examining both sides.

The problem is that it isn't as clear as people like to think that the Second Amendment is not incorporated into the 14th Amendment. The case commonly cited for this proposition is Miller v. Texas (http://supreme.justia.com/us/153/535/case.html), 153 U.S. 535 (1894). Unfortunately, Miller was decided three years before Chicago, Burlington & Quincy Railway Co. v. Chicago (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=166&invol=226) (1897), the first case in which the incorporation doctrine was first discussed. So, to the extent that Miller stands for the proposition that the Second Amendment does not apply to the States (or more accurately, that the Fourteenth Amdement does not include as "privileges and immunities" the right to bear arms referenced in the Second Amendment), this proposition has been untested against 111 years of jurisprudence that has developed on the incorporation doctrine.

Edited to add: The Miller Court, in fact, specifically stated that it was not determining whether the Fourteenth Amendment included a right to bear arms that the State could not infringe because such an issue had not been raised in the trial court:

And if the Fourteenth Amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.

Accordingly, Miller really should not be used as evidence that the 2nd Amendment is not incorporated into the 14th. That issue of law is open and ripe.

Now, there is no guarantee that the Second Amendment will be incorporated. The conservative wing of the party (particularly Justice Thomas) is not a big fan of expanding the incorporation doctrine. Also, Justice Breyer, usually on the liberal wing, is also not one who likes to expand the incorporation doctrine. So there is some basis to think that Miller's holding will survive. But Alito and Robert's opinions of the incorporation doctrine are unknown, so it's anybody's guess at this point how such an analysis might proceed.

luchog

27th June 2008, 08:54 AM

Well, here's my analysis again, and why I don't think the arms comes prior to the militia.

- The sentence structure asserts primacy to the militia clause. It comes first.

You really need to study more English. Precedence never indicates primacy. Primacy is indicated by the overal sentence structure. Furthermore, the first clause is a dependent clause, unable to stand on it's own as a complete sentence, and dependent clauses rarely, if ever, carry primacy.

One thing that struck me after I got offline yesterday, is the sheer abusurdity of the "organized militia" argument. Aside from the fact that such a reading is not possible either grammatically or in historical perspective (the Founding Fathers were opposed to a standing army), it's complete and utter gibberish.

To say it refers only to members of an organized standing militia would render the grammar nonsensical, in historical or modern English. Incorporating the dependent clause into the operative clause as gun-banners wish to do would render the operative clause thus: "the right of the people who are part of a militia to keep and bear arms shall not be infringed"; which can be reduced to "the right of a militia/military to keep and bear arms shall not be infringed". This is patently nonsense to anyone who knows anything about English. The idea that a military force would need a Constitutional amendment in order to allow them to carry weapons requires a ludicrious distortion of English grammar.

Furthermore, there is no historical precedent for such an interpretation. On the contrary, the Second Amendment did not spring up out of nothing, it was backed by a considerable amount of historical and contemporary precendent, including the British Declaration of Rights, Blackstone's interpretation of and commentary on same, and British Common Law rights to self-defense. The pre-union state constitutions contained far more explicit language indicating that the right was an indivdual one. For example, from the Virginia Declaration of Rights: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." Clearly delineating it as an individual right.

WildCat

27th June 2008, 09:07 AM

It is hard for many Americans to see that they more or less deify a bunch of dead lawyers as if they possess some sort of magical universal wisdom.
Really? I thought I was supporting the law as written, not according to what it was wished to be. As I said, there's mechanisms in place to change the laws and the Constitution. You don't just get to ignore it if it suits a purpose at the time. Maybe you think it's worth it to ignore the intent just this once, but then you throw open the door to ignoring the intent of the 1st, 4th, etc Amendments. At that point, why bother having a Constitution at all? Just make all laws subject to the fickle whims of the day.

Lothian

27th June 2008, 09:19 AM

Really? I thought I was supporting the law as written, not according to what it was wished to be. As I said, there's mechanisms in place to change the laws and the Constitution. You don't just get to ignore it if it suits a purpose at the time. Maybe you think it's worth it to ignore the intent just this once, but then you throw open the door to ignoring the intent of the 1st, 4th, etc Amendments. At that point, why bother having a Constitution at all? Just make all laws subject to the fickle whims of the day. I think people want the constitution to be seen as a living document and to be flexible.

Take this quote (http://www.supremecourtus.gov/about/constitutional.pdf) for example

"This power of “judicial review” has given the Court a crucial
Responsibility in assuring individual rights, as well as in maintaining a "living Constitution”whose broad provisions are continually applied to complicated new situations."

Some people would read that as the Court having to consider situations that are different to the situations faced 200 years ago and to consider the spirit of the constitution and perhaps ask not how the drafters intended the constitution to apply to their circumstances but how the drafters would want it applied if they were here today.

The question is ;when is a broad provision not a broad provision which can be interpreted but a but a specific rule or right that needs to be changed by a formal amendment.

WildCat

27th June 2008, 09:24 AM

I think people want the constitution to be seen as a living document and to be flexible.

Take this quote (http://www.supremecourtus.gov/about/constitutional.pdf) for example

"This power of “judicial review” has given the Court a crucial
Responsibility in assuring individual rights, as well as in maintaining a "living Constitution”whose broad provisions are continually applied to complicated new situations."

Some people would read that as the Court having to consider situations that are different to the situations faced 200 years ago and to consider the spirit of the constitution and perhaps ask not how the drafters intended the constitution to apply to their circumstances but how the drafters would want it applied if they were here today.

The question is ;when is a broad provision not a broad provision which can be interpreted but a but a specific rule or right that needs to be changed by a formal amendment.
Obviously it has to be interpreted as conditions change, but what opponents of this decision seem to want to do is scrap the 2nd Amendment entirely (which the Chicago Tribune is actually advocating in an editorial today).

If you want to go that far, repeal it if you can as the law allows. To scrap part of the Constitution via judicial ruling sets a very dangerous precedent.

WildCat

27th June 2008, 09:30 AM

The problem is that the law is settled as to the part of the 1st amendment that Ron Paul is talking about. It is not settled, or at least there is argument to change, as to the second amendment.

If the only caselaw to be found said that the 1st did not apply to the states, Ron Paul would have a point. When the court actually applies the second to the states, then you will be free to paint those arguing against application with the Ron Paul brush.

Until then, no.

I'm not arguing about "should." If you want to research "incorporation doctrine" and the arguments about total v. selective incorporation and how they could apply, as well as analysis as to some of the unique textual aspects of the 2nd and how they affect the analysis, then perhaps you will find an answer. Unfortunately, this would require actually examining both sides.
I understand what you're saying, but I don't see how at this point parts of the Bill of Rights are subject to the Incorporation Doctrine and others aren't. It seems to be just a matter of legal procedure at this point, as soon as the issue gets raised (as Chicago seems to intend to do) it is likely to be formally included. Chicago's position seems like a long shot.

Lothian

27th June 2008, 09:32 AM

Obviously it has to be interpreted as conditions change, but what opponents of this decision seem to want to do is scrap the 2nd Amendment entirely (which the Chicago Tribune is actually advocating in an editorial today).

If you want to go that far, repeal it if you can as the law allows. To scrap part of the Constitution via judicial ruling sets a very dangerous precedent.It does make good sense to scrap the amendment rather than go for a 180 degree turn around in interpretation if that is what the court wants to do. However at the moment the court does not appear to want to do that.

luchog

27th June 2008, 09:35 AM

So your claim is the second part was to give the Army reserve the right to have arms? That, frankly, is ridiculous.

The militia equates more to the National Guard than to the Reserve, but point taken.
It's worthwhile to note that nothing like the National Guard system existed prior to it's creation in 1903. The Reserve component of the military wasn't created until even later than that, 1908, and was originally for medical officers only. The Reserve didn't become a military force until 1920, with the wholesale reorganization of US military forces post-WWI.

Prior to the Militia Act of 1903, each state ran their own militia forces, in a widely disparate structure. The colonial militias that preceded them were based on English law, and limited by the English Bill of Rights. Militias during the early Union days, and well into the next century, were typically expected to provide their own infantry weapons and equipment; with only the larger field artillery pieces (cannon, culverin, etc.) being provided by the state governments, who also provided infantry weapons for those who came inadequately equipped. This situation continued up to and through the post-Civil War Reconstruction period.

The Militia Act of 1903 did little beyond organizing the state militias into a consistent national organization, with the individual states still maintaining a large degree of control over their own militias. In keeping with historical precendece, it also recognized two seperate miliatias, one, the "organized militia", the forerunner of the modern National Guard; the other, the "unorganized militia", which consisted of all citizens elibible for military service. The main difference between the two is that the former were allocated a certain budget for equipment and training, required to attend a specified number of training drills a year, and subject to inspection by the Regular military authority; while the latter were not.

The citizen militia was also recognized by the Selective Service act of 1917, covering all citizens eligible for military service. While it has been expired or terminated, and reinstated multiple times since then, there has never been a period longer than 5 years where it did not apply. The only difference in the modern version is that it's limited to combat-eligible citizens, which means it only applies to male citizens, as females are still effectively excluded from combat roles.

Suddenly

27th June 2008, 09:45 AM

Really? I thought I was supporting the law as written, not according to what it was wished to be.

Err... "original intent" is supporting what you imagine someone else wishes it to be, someone dead for centuries.

For irony, one can make a very good argument that the framers originally intended that the constitution not be interpreted by their original intent but for future generations to determine how the general principles are best served.

As I said, there's mechanisms in place to change the laws and the Constitution. You don't just get to ignore it if it suits a purpose at the time. Maybe you think it's worth it to ignore the intent just this once, but then you throw open the door to ignoring the intent of the 1st, 4th, etc Amendments. At that point, why bother having a Constitution at all? Just make all laws subject to the fickle whims of the day.

You do a good job at expressing incredulity over arguments not being made.

BenBurch

27th June 2008, 09:48 AM

luchog

27th June 2008, 09:59 AM

So, yeah: I may be/may have been unorganized and sedentary, but I am well regulated in that I meet all the requirements to own firearms and for Indiana to allow me to carry a firearm concealed.

So, the question I'm asking is: Who's in your state militia?
Revised Code of Washington, Title 38, Chapter 04, Section 030
Composition of the militia.

The militia of the state of Washington shall consist of all able bodied citizens of the United States and all other able bodied persons who have declared their intention to become citizens of the United States, residing within this state, who shall be more than eighteen years of age, and shall include all persons who are members of the national guard and the state guard, and said militia shall be divided into two classes, the organized militia and the unorganized militia.

Washington state is in a slightly unusual position in that we have three seperate militias in two categories: the Washington National Guard (Army and Air Force) and the Washington State Guard (http://stateguard.washingtonguard.org/index.shtml), which are two competely independent entities and comprise the organized militia; as well as the unorganized militia, which is every other military-liable citizen. The WSG, as noted on the website linked, is an unpaid volunteer force, and must provide their own uniforms and equipment.

RCW 38.04.040
Composition of organized militia.

The organized militia of Washington shall consist of the commissioned officers, warrant officers, enlisted persons, organizations, staffs, corps, and departments of the regularly commissioned, warranted and enlisted militia of the state, organized and maintained pursuant to law. Its numerical strength, composition, distribution, organization, arms, uniforms, equipment, training and discipline shall be prescribed by the governor in conformity with, and subject to the limitations imposed by the laws and regulations of the United States and the laws of this state: PROVIDED, HOWEVER, That the minimum enlisted strength of the organized militia of this state shall never be less than two thousand. The organized militia may include persons residing outside the state of Washington.

RCW 38.04.010
General definitions.

When used in this title, the following words, terms, phrases shall have the following meaning:

The word "militia" shall mean the military forces provided for in the Constitution and laws of the state of Washington.

The term "organized militia" shall be the general term to include both state and national guard and whenever used applies equally to all such organizations.

The term "national guard" shall mean that part of the military force of the state that is organized, equipped and federally recognized under the provisions of the national defense act of the United States, and, in the event the national guard is called into federal service or in the event the state guard or any part or individual member thereof is called into active state service by the commander-in-chief, the term shall also include the "Washington state guard" or any temporary organization set up in times of emergency to replace either the "national guard" or "state guard" while in actual service of the United States.

The term "state guard" shall mean that part of the military forces of the state that is organized, equipped, and recognized under the provisions of the State Defense Forces Act of the United States (32 U.S.C. Sec. 109, as amended).

As for the unorganized militia, this is provided for explicitly in the state constitution:

Washington State Constitution

ARTICLE X
MILITIA

SECTION 1 WHO LIABLE TO MILITARY DUTY. All able-bodied male citizens of this state between the ages of eighteen (18) and forty-five (45) years except such as are exempt by laws of the United States or by the laws of this state, shall be liable to military duty.

And, since it's related, also from the Washington State Constitution:

SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

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.

WildCat

27th June 2008, 09:59 AM

Err... "original intent" is supporting what you imagine someone else wishes it to be, someone dead for centuries.

For irony, one can make a very good argument that the framers originally intended that the constitution not be interpreted by their original intent but for future generations to determine how the general principles are best served.
Sure, just like Johnny Cochran made a good argument (at least to the jury) that OJ was set up by whit racist cops. And that bees can't fly. And that Gitmo detainees don't have the right to challenge their status in Federal court. A "good argument" isn't necessarily the correct argument.

There's times where there may be little information from which to determine intent, I don't think this is one of them.

You do a good job at expressing incredulity over arguments not being made.
Thus, the word "maybe". I really don't know what your argument is here, but the ones I have heard in this thread (that the 2nd Amendment was for the right of National Guard members to keep and bear arms, or that the BoR doesn't apply to the states) seem tortured and desperate to me, YMMV.

WildCat

27th June 2008, 10:02 AM

Note that there are now a couple of actually serious campaigns forming to REPEAL the 2nd amendment as a direct result of this ruling.
None of which have a prayer of succeeding.

It would have been much better had the SC found a way to evade ruling on this matter or to deal with it as a narrow matter of procedure.
Nope, that's what they get paid the big bucks for. We have elected representatives that do the job of evading controversial issues, and do it very well.

luchog

27th June 2008, 10:11 AM

Note that there are now a couple of actually serious campaigns forming to REPEAL the 2nd amendment as a direct result of this ruling.

It would have been much better had the SC found a way to evade ruling on this matter or to deal with it as a narrow matter of procedure.
Being that amending the US Constitution requires ratification by a minimum of two-thirds of the individual States, and 39 out of 50 states have very liberal firearm ownership and carry laws, and being that the current trend is toward increasingly liberal ownership and carry legislation; attempts to repeal the 2nd Amendment are just so much pissing into the wind.

Suddenly

27th June 2008, 10:18 AM

Accordingly, Miller really should not be used as evidence that the 2nd Amendment is not incorporated into the 14th. That issue of law is open and ripe.

I think people that cite Miller tend to be trying to hide the ball a bit as Miller barely mentions the issue. There are other (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=92&page=542) cases (http://en.wikipedia.org/wiki/Presser_v._Illinois) that specifically say the second is not incorporated and, dated as they may be, until overturned they are good law.

As Scalia noted, neither have been examined in the light of more modern 14th amendment jurisprudence.

For my money, the issue of the level of scrutiny as to laws regulating gun ownership is roughly a million times more important than this. Many states already have laws that recognize some level of individual right to bear arms...

(for the casual reader I will note that the Miller case discussed here is a totally different case from the U.S. v. Miller case specifically dealing with the second amendment that Scalia pooped on in Heller...)

Now, there is no guarantee that the Second Amendment will be incorporated. The conservative wing of the party (particularly Justice Thomas) is not a big fan of expanding the incorporation doctrine. Also, Justice Breyer, usually on the liberal wing, is also not one who likes to expand the incorporation doctrine. So there is some basis to think that Miller's holding will survive. But Alito and Robert's opinions of the incorporation doctrine are unknown, so it's anybody's guess at this point how such an analysis might proceed.

Also anybody's guess as to who will be on the court when it does, or if it will get there during our lifetimes. It is not hard to imagine the High Court sitting back and letting this stew for a while.

Drudgewire

27th June 2008, 10:44 AM

Note that there are now a couple of actually serious campaigns forming to REPEAL the 2nd amendment as a direct result of this ruling.

Sore losers. :rule10 'em.

Suddenly

27th June 2008, 11:17 AM

Thus, the word "maybe". I really don't know what your argument is here, but the ones I have heard in this thread (that the 2nd Amendment was for the right of National Guard members to keep and bear arms, or that the BoR doesn't apply to the states) seem tortured and desperate to me, YMMV.

The so-called "collectivist view" has a long history of support and sunstantial evidence. Stating this view in conclusory terms and expressing incredulity shouldn't be confused with rational analysis.

I really don't have an argument. Had I been on the court I would have written an opinion concurring with the majority as to their finding of a right and dissenting as to the reasoning behind the finding of a right and the remedy.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

In essence, I believe there should be a right because in general the principles found within the whole of the constitution support this. My research and such has led me to agree that the second amendment was never meant to protect against the federal government using powers it did not have, and arguably should have never had, to affect basic personal rights such as gun ownership in the home.

Sort of like the idea that these same principles make it unconstitutional to outlaw sodomy. It isn't written in there, but clearly this is the sort of personal private issue a free society does not restrict. I'd find the same as to guns, but given that gun ownership is a far more dangerous act than sodomy or going to church, I would apply a lower level of scrutiny and require an articulable public safety concern to support any regulation.

At that point I would remand it to the lower court for findings of fact as to the legislative purpose, and have them hold hearings.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

It wouldn't be decided here, but I'd say the 14th amendment applies this to the states.

It just gives me a headache to watch Scalia and the boys try to dress up what is a generally straightforward decision from a living constitution perspective in the clothing of original intent... Thus my criticism.... Of course, I hate any really specific appeal to original intent in the first place.

Political decisions are like nails on a chalkboard for me. This will be one that history will judge harshly in that while Scalia's historical references are reasonable, his treatment of the current state of the law and use of precident is quite tortured.

It isn't Bush v. Gore bad, but it isn't pretty.

marksman

27th June 2008, 11:28 AM

There are other (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=92&page=542) cases (http://en.wikipedia.org/wiki/Presser_v._Illinois) that specifically say the second is not incorporated
Well, the two cases you cited aren't among them.

The first, US v Cruikshank (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=92&page=542), predates the incorporation doctrine by more than twenty years, and if it could even be read to be discussing incorporation, would be held to read that the First Amendment hasn't been incorporated either, which we know to be untrue. Cruikshank is not good law.

Presser v. Illinois (http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/presser.txt) also doesn't involve incorporation, as it predates the incorporation doctrine by more than a decade.

If anything, Presser actually foreshadows the incorporation doctrine as follows:
A State may pass laws to regulate the privileges and immunities of
its own citizens, provided that in so doing it does not abridge the
privileges and immunities as citizens of the United States.
The Court determined that teh law at issue did not abridge any federal right. (Had it done so, it would have implicitly been ruling that the Second Amendment was incorporated, but refusing to do so means they said nothign about incorporation.)

The issue of incorporation remains open.

For my money, the issue of the level of scrutiny as to laws regulating gun ownership is roughly a million times more important than this.
Absolutely. And whether strict scrutiny or intermediate scrutiny is chosen (I'm betting on the latter), I only pray that Breyer's "interest analysis" isn't selected. I can't stand that doctrine.

Suddenly

27th June 2008, 12:15 PM

Well, the two cases you cited aren't among them.

The first, US v Cruikshank (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=92&page=542), predates the incorporation doctrine by more than twenty years, and if it could even be read to be discussing incorporation, would be held to read that the First Amendment hasn't been incorporated either, which we know to be untrue. Cruikshank is not good law.

There is a difference between being certain such an analysis will be overturned and saying it has already. This claim is based on assumptions of the quality. Scalia noted what you are saying, but did acknowledge that it was there at least. It simply wasn't at issue.

There are a lot of lower courts that won't poop without guidence appearing in black letters in a binding opinion. So while from an academic perspective we can call the issue open, from the point of view of a lot of trial level judges the issue is settled until someone up the ladder tells them otherwise.

Everything is an open question to some point. This is just probably as open as it gets while still having a case stating a position.

Absolutely. And whether strict scrutiny or intermediate scrutiny is chosen (I'm betting on the latter), I only pray that Breyer's "interest analysis" isn't selected. I can't stand that doctrine.

I've never been a fan of applying the three level paradigm (rational basis/ intermediate/ strict scrutiny) to the regulation of constitutional rights. It works well in equal protection analysis of suspect classifications, but I think a more fluid approach is necessary as to analyzing the regulation of constitutional rights. I tend to agree as rights go this one is unusual in that it revolves around behavior that presents a physical danger to other people, and protection against harm is an intrinsic element of governmental responsibility.

I still scratch my head why this was not addressed in the majority opinion seeing it was part of determining a remedy. I have a strong suspicion that if Scalia adressed this issue Kennedy would have concurred as to the right and dissented as to the level of scrutiny and there would be a huge mess. I can see the majority deciding to keep this one clean and leave the details for the future...

rwguinn

27th June 2008, 12:37 PM

Ratatosk

27th June 2008, 12:56 PM

From Article I, Section 8 of the Constitution (which was previously mentioned):
"The Congress shall have the power... to provide for organizing, arming, and disciplining, the militia..."

But I thought, according to the NRA and gun-rights advocates, that the 2nd Amendment was telling us we needed to provide our own guns for the common defense, and that's why access to weaponry for private citizens should be unrestricted?

"A well-regulated militia" could very certainly include something like the U.K.'s gun clubs, where private citizens have the right to own weapons and train with them, under strict controls to ensure that they aren't used for criminal purposes.

Also, I have frequently heard the argument (including in this thread) that the right to bear arms is in part intended as a means of resisting government tyranny. To pretend that this is written or implied in the Constitution is moronic; in effect, it's arguing, "you have the right to use armed force to dispute legal claims with the U.S. government." This "right" has been frequently asserted by the people you see swinging ballbats at police officers on "COPS," and I assure you, the legal system has soundly rejected it.

marksman

27th June 2008, 12:57 PM

There is a difference between being certain such an analysis will be overturned and saying it has already.
But it has been overturned. As soon as the First Amendment's right to freely assemble was incorporated into the Fourteenth Amendment (which it was in 1937), Cruikshank became bad law. Cruikshank was overturned more than seventy years ago.

There are a lot of lower courts that won't poop without guidence appearing in black letters in a binding opinion.
That's true, but we're discussing the Supreme Court. Stevens made the same argument in his dissent -- that many federal courts had assumed that gun ownership was not an individual right -- and Scalia (properly in my opinion) dismissed such concerns. The Supreme Court should not care that most Circuit Courts disagree with them, if they believe themselves to be correct.

I've never been a fan of applying the three level paradigm (rational basis/ intermediate/ strict scrutiny) to the regulation of constitutional rights.
Me neither, but like choosing democracy as a form of government, it's really the best of a lot of bad choises.

I still scratch my head why this was not addressed in the majority opinion seeing it was part of determining a remedy. I have a strong suspicion that if Scalia adressed this issue Kennedy would have concurred as to the right and dissented as to the level of scrutiny and there would be a huge mess.

Maybe. I actually think that Scalia -- who has often mocked the three level paradigm (as you described it) -- would really like to see if some Circuit Court judges can come up with a better system for the Second. He prefers approaches tailored to each Amendment, such as the Lemon rule for free speech, and other standards for the Establishment Clause. In other words, he decided to punt to Richard Allen Posner. :)

WildCat

27th June 2008, 01:08 PM

It just gives me a headache to watch Scalia and the boys try to dress up what is a generally straightforward decision from a living constitution perspective in the clothing of original intent... Thus my criticism.... Of course, I hate any really specific appeal to original intent in the first place.
"Scalia and the boys" actually do believe the Constitution is a living document, or they'd be loony Badnarik-style Libertarians who think 95% of the Federal government is unconstitutional. ;)

It's all a matter of degree.

WildCat

27th June 2008, 01:14 PM

Ratatosk

27th June 2008, 01:32 PM

[That argument isn't about a guy who doesn't like the traffic ticket he received, but for situations like this: ]
(Sorry, can't use "quote" yet as a nooby)

That is a situation where someone would want to defend themselves by any means necessary, and I couldn't fault them for it.

I guess the point I was trying to make, though, is that the combined argument that
A) I have the legal right to bear arms under the highest law of the land and
B) I have the right to use those arms in resistance against the government
is specious.

WildCat

27th June 2008, 02:41 PM

B) I have the right to use those arms in resistance against the government
is specious.
It's only legitimate if the government does a Mugabe and there is no longer any semblence of democracy or legal recourse.

aerosolben

27th June 2008, 02:47 PM

The use of the term “the people” to refer to government or collective society, rather than to individuals, is a Communist concept, that has no place whatsoever in any discussion relevant to a free society. No true American — who understands and agrees with the principles upon which this nation was founded — would ever use the term “The People” in the manner that you are trying to use it. Certainly, none of the authors of the Constitution would ever have used the term “The People” in such a manner.

Context would seem to indicate that you are being serious, but that is so incredibly and obviously wrong I have to wonder.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

(Note that I do not disagree with your interpretation of "the people" as used in the second amendment.)

Ratatosk

27th June 2008, 02:55 PM

[It's only legitimate if the government does a Mugabe and there is no longer any semblence of democracy or legal recourse. ]

Which any government could, even our much-lauded (by ourselves) super-democracy. But if our government DID pull a Mugabe, it's worth considering, I think, just how very well-armed the thugs would be, and how very much armed force an individual would need to resist them. Even that big, bad Tek-9 isn't gonna do the trick, I'm afraid. But what it will do the trick on is any child who plays with it or, if it's stolen, anybody the thief decides to use it against.

This is anecdotal, but a quick review of firearms injuries surrounding people I've known include:
1 person who's accidentally shot himself (not fatally, fortunately)
2 people who've been shot by criminal assailants
0 people who've successfully used a firearm to defend themselves, even as a deterrent

Again, anecdotal. Maybe I'll poke around and see if I can find some national or local stats on this.

WildCat

27th June 2008, 02:58 PM

Again, anecdotal. Maybe I'll poke around and see if I can find some national or local stats on this.
No need to bother, it's bene done to death here and it's off-topic for this one. Bump one of the 234,742 gun threads here to discuss that. ;)

skeptifem

27th June 2008, 03:01 PM

That is how I read it as well.

It is hard for many Americans to see that they more or less deify a bunch of dead lawyers as if they possess some sort of magical universal wisdom. It is one of those things drilled into the brain with such authority that even questioning the wisdom of this idea can cause a rather dramatic defensive reaction.

there is some of that here for sure, but appreciating what occured doesnt mean anyone is deifying them. what the **** are we supposed to say exactly? that we admire the end product but not the people who are responsible for it? thats a load of crap. people deserve credit for great ideas and actions. seems to me like they all did a pretty good job on something that has a day to day effect on a very large number of people.

Once you add in the fact that these lawyers didn't generally agree and often left ambiguity in the document as a compromise, the strange American habit of arguing about some sort of specific identifiable intent is quite curious. Almost any interpretation can be supported by extrinsic evidence connected to these dead lawyers.

I dont understand- because they didnt agree all the time means that no one can say that they did agree sometimes? what the hell?

Rolfe

27th June 2008, 03:01 PM

Look at Rolfe's post. She apparently thinks that judges should be able to ignore the "220 year old document" if they feel like it.

Sorry, went away, had to do some work so they would go on paying me.

I don't seem to be explaining myself very well. Leif Roar has said exactly what I was trying to say, only so much better. The debate goes, or should go, beyond what the 220-year-old document says. Judges must, of course, adhere to the law as it exists, and interpret it to the best of their ability.

However, rather than even more sterile arguing about what the politicians meant 220 years ago, or even what they might have meant if they'd been able to see the future, it seems to me to be much more constructive to discuss what the law should be.

Given the attitudes espoused by so many people in the USA I don't hold out much hope for a civilising of laws and mores in the near future, but it won't even begin until people can get their heads out of pontificating on what the 220-year-old legislature said, and start debating what the law should be in the 21st century.

Perhaps those long-ago politicians acted for the best, and perhaps they really believed they should make it hard for future generations to change what they decided. But you know, maybe they were wrong. Or maybe they were right at the time, but these decisions are wrong for the present day. Appeals to the oligofallibility of one group of politicians at one point in history aren't very persuasive.

Rolfe.

Ratatosk

27th June 2008, 03:04 PM

Haven't looked at all the gun threads; not sure I want to. :)

Rolfe

27th June 2008, 03:11 PM

She was commenting on the debate and expressed surprise that the debate centred on what was intended at the time as opposed to what is right today.

Criticism (by that I mean commentary) on the mechanics of a legal system is not criticism of the lawmakers who apply the system.

She did not say that SCOTUS had made a mistake in considering the original meaning just surprise that SCOTUS appeared legally bound to give priority to the wishes of the dead over the living.

At least that is how I read it.

Actually, I didn't even intend to go as far as that penultimate paragraph. I wasn't really referring to the court decision at all. I was referring to the wider debate regarding what level of access to and ownership of weapons is appropriate to an allegedly civilised, urbanised society in the 21st century. Whenever this debate surfaces, one of the main planks of the pro-gun debate is that the law is on their side. Posession of firearms is a "human right", end of. Well, no, it isn't. It is a right granted by a 220-year-old document to citizens of one country.

However, perpetual repetition of the blindingly obvious point that this is the case is of no relevance at all to a debate on what the law should be. Until the debate in the USA widens to embrace that point, there seems no hope at all for any progress.

Rolfe.

Drudgewire

27th June 2008, 03:15 PM

...the right to use those arms in resistance against the government...

Of course you don't have the right to use those arms to rise up against an oppressive government... only the means to. Conversely they DO have the right to retaliate with much bigger arms, so it really better be an organized militia... probably requiring most of the able-bodied adults in the country to take part.

Point is, as long as we have the ability to fight back they really have nothing to gain by becoming so oppressive it became a legitimate option. It's the part of the checks and balances system we can actively take part in simply by having a Mossberg in the closet. :)

Rolfe

27th June 2008, 03:26 PM

Ratatosk

27th June 2008, 03:30 PM

[Of course you don't have the right to use those arms to rise up against an oppressive government... only the means to. Conversely they DO have the right to retaliate with much bigger arms, so it really better be an organized militia... probably requiring most of the able-bodied adults in the country to take part.

Point is, as long as we have the ability to fight back they really have nothing to gain by becoming so oppressive it became a legitimate option. It's the part of the checks and balances system we can actively take part in simply by having a Mossberg in the closet.]

"Right" is a tricky word too, because to say government has a right to oppress... a legal right and a moral right are obviously two different things here. If things collapse to the point where only firearms will protect me from gov't thugs, though, I think it's safe to say we're well beyond the point of "checks and balances." :) The part of the checks and balances system we can take part in is paying careful attention to what our government is doing, making it known, and expressing dissatisfaction. And if we're not doing that, then things will not go well, no matter how many new closets I put in for my gun collection.

Drudgewire

27th June 2008, 03:32 PM

Hmmm, there is no doubt that if a government becomes oppressive and democratic means to remedy this are not avaliable, people will take up arms against it. Get the claymores out of the thatch.

However, codifying this in law as a "right", and declaring that ordinary citizens are permitted to hoard firearms for this precise purpose, seems awfully rash to me.

Rolfe.

And yet, it's exactly what at least one of the founding fathers had in mind when he drafted it:

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

And of course the follow-up:

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

Ratatosk

27th June 2008, 03:34 PM

[Hmmm, there is no doubt that if a government becomes oppressive and democratic means to remedy this are not avaliable, people will take up arms against it. Get the claymores out of the thatch.

However, codifying this in law as a "right", and declaring that ordinary citizens are permitted to hoard firearms for this precise purpose, seems awfully rash to me.]

Not only rash, but against the very nature of government itself. The principal characteristic of government has always been a monopoly on the legal use of force.

I think I'm finally going to be able to quote after this post. Yay me!

Rolfe

27th June 2008, 03:37 PM

And yet, it's exactly what at least one of the founding fathers had in mind when he drafted it:

There you go again. A nation that is so intent on referencing what the bloody founding fathers thought, loses the ability to think for itself.

Rolfe.

Rolfe

27th June 2008, 03:40 PM

Ratatosk, I don't know what you're on about. It takes a number of posts before you can post links, but quoting should not be an issue. If clicking on the "quote" icon doesn't work, just type

[ quote] before what you want to post, and [ /quote] after it, and it will all happen (take out the spaces of course). You can even personalise it, as in the Thomas Jefferson example above, byt typing [ quote=Thomas Jefferson] at the start.

But the quote button ought to work, no matter how new you are.

Rolfe.

Drudgewire

27th June 2008, 03:50 PM

There you go again. A nation that is so intent on referencing what the bloody founding fathers thought, loses the ability to think for itself.

So now you're reduced to "trying to abide by the principles your nation was founded on is stupid." Good one.

In fairness though, I realize it's a REALLY bad day to be for gun control so I'll try to play nice. :)

ZirconBlue

27th June 2008, 03:50 PM

Ratatosk

27th June 2008, 03:57 PM

And yet, it's exactly what at least one of the founding fathers had in mind when he drafted it:

And of course the follow-up:

(Hope I'm doing this quote thing right)
I had not read that from Jefferson before; interesting. Do you have a source for when he said it? During the framing of the Constitution?

I've read that Jefferson's opinions about the French Revolution (a good example of force used against an oppressive government) shifted somewhat when he saw the Reign of Terror.

I don't want to take this too far, because I also hold the position that Jefferson & the gang were not gods but men, just like us. Although he was maybe a little smarter than me.;)

skeptifem

27th June 2008, 04:00 PM

There you go again. A nation that is so intent on referencing what the bloody founding fathers thought, loses the ability to think for itself.

Rolfe.

what? i dont understand why you would talk about how something happened and it was really great but fail to talk about the persons responsible? its like getting all pissy if people say that NASA had planned the moon landing and that it was great, and how cool is nasa for doing that, etc. :boggled: how that makes someone incapable of thinking for themselves, i dont know.

Ratatosk

27th June 2008, 04:03 PM

My quoting sort of worked, but thanks to Rolfe's guidance, should work better next time. Cheers.

Ratatosk

27th June 2008, 04:10 PM

what? i dont understand why you would talk about how something happened and it was really great but fail to talk about the persons responsible? its like getting all pissy if people say that NASA had planned the moon landing and that it was great, and how cool is nasa for doing that, etc. :boggled: how that makes someone incapable of thinking for themselves, i dont know.

It's not a question of whether you "talk about the persons responsible" or not; your NASA illustration actually hurts your argument. If I'm in trying to get to the moon, I'd much rather have the specs on a Saturn V and learn the principles of physics, aerodynamics, etc. than read a biography of Neil Armstrong.

Rolfe

27th June 2008, 04:39 PM

what? i dont understand why you would talk about how something happened and it was really great but fail to talk about the persons responsible? its like getting all pissy if people say that NASA had planned the moon landing and that it was great, and how cool is nasa for doing that, etc. :boggled: how that makes someone incapable of thinking for themselves, i dont know.

No. Spending all your time talking about Neil Armstrong and the NASA of the 1960s rather than getting off your backside and figuring out A. whether you want to get to Mars and B. how to achieve this, is a better analogy.

What the founding fathers thought may be interesting. It may even inform the debate to some extent. But the idea that they are the first and the last word on the subject, and that their pronouncements should stand indefinitely no matter what changes in technology and society may occur, is simply abrogating responsibility.

Rolfe.

Rolfe

27th June 2008, 04:43 PM

My quoting sort of worked, but thanks to Rolfe's guidance, should work better next time. Cheers.

In the main forum, quotes inside quoted posts (nested quotes) don't come out automatically. If you want to include them, you have to add them by hand. For some weird reason, they do come automatically in PMs.

Rolfe.

Garrette

27th June 2008, 05:18 PM

What the founding fathers thought may be interesting. It may even inform the debate to some extent. But the idea that they are the first and the last word on the subject, and that their pronouncements should stand indefinitely no matter what changes in technology and society may occur, is simply abrogating responsibility.

Rolfe.I agree with the sentiment. Where I think you go astray is in assuming that SCOTUS is the place for that discussion about changes to take place. Changes happen at SCOTUS simply because it is a human institution and is therefore subject to the same imperfections as all human institutions, but the purpose of SCOTUS is specifically not to talk about how things ought to change but to decide if laws and lower court decisions are in line with what is and has been.

The place to discuss change is in the legislative branch. Sadly, that institution has shown itself even more fallible than SCOTUS.

WildCat

27th June 2008, 05:26 PM

What the founding fathers thought may be interesting. It may even inform the debate to some extent. But the idea that they are the first and the last word on the subject, and that their pronouncements should stand indefinitely no matter what changes in technology and society may occur, is simply abrogating responsibility.

Rolfe.
But if you want to do something as radical as declaring a part of the Constitution null and void sorry, it cannot happen that way as the law simply doesn't allow it. It is not the job of the judges to decide if any part of the Constitution is a good idea or not, only what it means.

There are means available to change the Constitution if the people wish it to be changed. The Supreme Court can declare a law unconstitutional, but they can't rule the Constitution unconstitutional. That has to be changed by the people and the States.

ServiceSoon

27th June 2008, 05:49 PM

But the idea that they are the first and the last word on the subject, and that their pronouncements should stand indefinitely no matter what changes in technology and society may occur, is simply abrogating responsibility.The founders have the first word, but not the last word. Do you agree that written law doesn't work very well when it is ambiguous?

The recourse, as already mentioned is to amend the constitution. There is a group that is trying to do just that. Well, sort of. The obstacle they face is the majority of Americans want the Right to Keep and Bear Arms (RKBA). Thus, the right stays the way it is.

I'm not sure what you mean by "abrogating responsibility?" The SCOTUS abrogating responsibility is to interpret the constitution as written.

Texas

27th June 2008, 06:35 PM

I guess someone has never heard of the Fourteenth Amendment.I haven't read the decision but did the court incorporate the 2nd amendment into the 14th if so Chicago is sol.

Sefarst

27th June 2008, 08:26 PM

I'm very happy with this decision. On top of that, Scalia's opinion is perhaps one of the most quotable in history:

“Worse still, the phrase ‘keep and bear Arms’ would be incoherent. The word ‘Arms’ would have two different meanings at once: ‘weapons’ (as the object of ‘keep’) and (as the object of ‘bear’) one-half of an idiom. It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.”

“[I]f ‘bear arms’ means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add ‘for the purpose of killing game.’ The right ‘to carry arms in the militia for the purpose of killing game’ is worthy of the mad hatter."

“Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.”

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

An excellent day for the constitution and individual rights.

Leif Roar

27th June 2008, 11:54 PM

The principal characteristic of government has always been a monopoly on the legal use of force.

Not really. Even today there are legal uses of force that falls outside the remit of the government (self-defense, citizen arrests, bodyhunters in the USA). Not too long ago the father of a household had full right to use corporal punishment on members of his household (in Roman times, even kill them). Privateers and, to a lesser degrees, mercenary companies were private enterpresis that wielded legal force on behalf of, but not really under the control of, a government. The apperhension of criminals was not too far ago down to the "hue and cry", and duels and, earlier, bloodfeuds were accepted uses of force.

Matthew Best

28th June 2008, 01:11 AM

Sure, just like Johnny Cochran made a good argument (at least to the jury) that OJ was set up by white racist cops. And that bees can't fly.

Honestly! That Johnny Cochran! He's incorrigible! :D

Bob Blaylock

28th June 2008, 01:47 AM

Posession of firearms is a "human right", end of. Well, no, it isn't. It is a right granted by a 220-year-old document to citizens of one country.

I very much disagree, as did the great men who wrote the Constitution. The Constitution does not “grant” any rights at all. It only recognizes and affirms natural rights which rightfully belong to all human beings everywhere.

That we may be the only nation that is based on recognition of these rights does not change this. It only means that other nations that deny their citizens these same rights are wrong for doing so.

This ties in closely with the language found in the Declaration of Independence, about all men being endowed by their creator (not by any state, community, government, or Constitution) with certain rights. The Bill of Rights is simply an enumeration of some of these rights, and not the source thereof.

Bob Blaylock

28th June 2008, 01:55 AM

There you go again. A nation that is so intent on referencing what the bloody founding fathers thought, loses the ability to think for itself.

Rolfe.So now you're reduced to "trying to abide by the principles your nation was founded on is stupid." Good one.

There's something important to keep in mind here. The United States of America is a nation that was founded in a difficult and violent rebellion against a brutal tyrant.

It is very much understandable that someone whose ancestors chose to grovel and cower before this same tyrant, rather than stand against him, might not be capable of understanding the vital principles on which our great nation was founded.

No matter. There are two major points in history where his nation tried to tell us how to run our nation. His side got its ass kicked very hard both times.

jimbob

28th June 2008, 05:05 AM

I very much disagree, as did the great men who wrote the Constitution. The Constitution does not “grant” any rights at all. It only recognizes and affirms natural rights which rightfully belong to all human beings everywhere.

That we may be the only nation that is based on recognition of these rights does not change this. It only means that other nations that deny their citizens these same rights are wrong for doing so.

This ties in closely with the language found in the Declaration of Independence, about all men being endowed by their creator (not by any state, community, government, or Constitution) with certain rights. The Bill of Rights is simply an enumeration of some of these rights, and not the source thereof.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. ...but we don't care if slaves' rights are alianated, (or maybe they weren't men)? What about women?

Things change in 200 years.

jimbob

28th June 2008, 05:08 AM

No matter. There are two major points in history where his nation tried to tell us how to run our nation. His side got its ass kicked very hard both times.

I say that Rolfe is no true scotsman

Garrette

28th June 2008, 07:01 AM

[quote=Bob Blaylock;3812657]It is very much understandable that someone whose ancestors chose to grovel and cower before this same tyrant, rather than stand against him, might not be capable of understanding the vital principles on which our great nation was founded.
[quote]This is the one comment you have made in this thread that you should retract. Not only is it an out-of-the-blue, undeserved, and amateurish attempt at an insult, it is historically misinformed.

Shame, too. I've liked all your other comments.

WildCat

28th June 2008, 07:53 AM

I haven't read the decision but did the court incorporate the 2nd amendment into the 14th if so Chicago is sol.
IMHO (but of course I've only had one law class in my life) it will certainly be incorporated because it was found to be an individual right. No way in hell will the courts rule that people living in an area administered by the federal government have an extra Constitutional right not enjoyed by the rest of the population.

Kestrel

28th June 2008, 08:22 AM

I very much disagree, as did the great men who wrote the Constitution. The Constitution does not “grant” any rights at all. It only recognizes and affirms natural rights which rightfully belong to all human beings everywhere.

That we may be the only nation that is based on recognition of these rights does not change this. It only means that other nations that deny their citizens these same rights are wrong for doing so.

This ties in closely with the language found in the Declaration of Independence, about all men being endowed by their creator (not by any state, community, government, or Constitution) with certain rights. The Bill of Rights is simply an enumeration of some of these rights, and not the source thereof.

Before men stepped in and started writing documents like the Magna Carta and the Declaration of Independence, the creator was doing a poor job of protecting the rights of mankind. These inalienable rights were routinely trampled by Kings who claimed power in the name of God.

Sefarst

28th June 2008, 08:35 AM

Before men stepped in and started writing documents like the Magna Carta and the Declaration of Independence, the creator was doing a poor job of protecting the rights of mankind. These inalienable rights were routinely trampled by Kings who claimed power in the name of God.
Jeremy Bentham once criticized the idea of inalienable rights as "nonsense on stilts."

There's also an interesting scene in the HBO mini-series "John Adams" that says something to the same effect as the Founders all debate the Declaration of Independence.

Gagglegnash

28th June 2008, 09:22 AM

Hi

Actually, Georgie was NOT a tyrant to the British, so there was no groveling going on on that side of the pond. The main complaint was that the colonists were not afforded the same rights and protections enjoyed by every other British citizen.

The colonies were seen by the British government as a wholly-owned subsidiary of the Honorable East India Company, and all their occupants employees.

The colonies were simply George's cash cow, to be treated poorly if George felt that things weren't going well enough... which is to say if they weren't pumping out enough money.

pchams

28th June 2008, 02:50 PM

It is very much understandable that someone whose ancestors chose to grovel and cower before this same tyrant, rather than stand against him, might not be capable of understanding the vital principles on which our great nation was founded.

Wow!
What typical American arrogance. ;)

a_unique_person

28th June 2008, 02:55 PM

From the Scotus Blog:

And so there is no ambiguity:

And from The Hill (http://thehill.com/leading-the-news/supreme-court-shoots-down-d.c.-gun-ban-2008-06-26.html)

157 page ruling (http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf)

Strange, I thought it said "A well regulated Militia,"

a_unique_person

28th June 2008, 02:58 PM

There you go again. A nation that is so intent on referencing what the bloody founding fathers thought, loses the ability to think for itself.

Rolfe.

My own feeling is that the founding fathers would be deeply saddened that what they did, which was to think originally and creatively, has been so corrupted in their name. Now there is a blind subservience to men long dead, which was what they railed against.

rwguinn

28th June 2008, 03:16 PM

I find it interesting how many foriegners are willing, able, ready, and think they are justified in telling us here in the US what our government "ought" to be, but get PO'ed if we dare to make suggestions about anyone else
Or if we tell 'em to butt the hell out...

"The proper punctuation for the phrase 'It's none of my business, but...' is to place a period before the 'but'.
Do not use excessive force providing the punctuation, as it will get you talked about" Robert A. Heinlein
and some points in proof:

Wow!
What typical American arrogance. ;)

There you go again. A nation that is so intent on referencing what the bloody founding fathers thought, loses the ability to think for itself.

Rolfe.

Hey, Pot! Kettle is on the phone

And the european arrogance goes one and on--but we get talked about for it..

pchams

28th June 2008, 03:25 PM

and some points in proof:

Hey, Pot! Kettle is on the phone

And the european arrogance goes one and on--but we get talked about for it..

You missed the joke rwguinn.
I was trying to show the poster that it was a ridiculous generalisation.
Hence the use of the word "typical", and the wink.
Sorry to be unclear.

BTW: Toronto is not in Europe.*

ETA: * But it is full of illegal U.S. handguns

rwguinn

28th June 2008, 03:43 PM

You missed the joke rwguinn.
I was trying to show the poster that it was a ridiculous generalisation.
Hence the use of the word "typical", and the wink.
Sorry to be unclear.

BTW: Toronto is not in Europe.*

ETA: * But it is full of illegal U.S. handguns

If they're illegal, arrest and confiscate...

pchams

28th June 2008, 04:10 PM

If they're illegal, arrest and confiscate...

As you are probably aware, there is never enough manpower to confiscate all.
This decision probably will affect my country.
Don't get me wrong. I own a few legal rifles. I grew up learning firearm safety, and enjoy shooting.
Handguns have no place in a large urban centre though IMO.
The only people using them are criminals.

ServiceSoon

28th June 2008, 04:41 PM

ETA: * But it is full of illegal U.S. handgunsMaybe you should outlaw those illegal handguns ;)

Pope130

28th June 2008, 06:28 PM

BTW: Toronto is not in Europe.*

ETA: * But it is full of illegal U.S. handguns

What a weird coincidence. My holster is full of legal Canadian handgun.

pchams

28th June 2008, 06:47 PM

What a weird coincidence. My holster is full of legal Canadian handgun.

No need to brag. :)

It may be a misconception that Canadians don't have or want guns.
We have our own imbroglio over registry and such.
There are hunters, marksmen, military, sports people, and collectors that have an iron in the fire here.
We have a few guns (just in case your thinking about another Fenian invasion).
The point here, and I think what may have been Rolfe's point, is that we need to revisit regulations concerning weapons, especially handguns, in the light of over-populated cities, and start looking into the present.

Pope130

28th June 2008, 07:00 PM

andyandy

28th June 2008, 07:03 PM

Why is a law passed 200 years ago still regarded as relevant today? So what if it made sense to have armed militia in the 1700s, why should that dictate whether people can carry guns on the 21st century?

Rhetorical questions I know, because the amendments are treated as if they were handed down by God himself...........;)

pchams

28th June 2008, 07:13 PM

Trends show that gun regulation may work.
Toronto is the 4th largest city in North America after Mexico City, LA, and, New York.
http://www.statcan.ca/Daily/English/080220/d080220b.htm

Re Handguns:
Handguns made up nearly two-thirds of all firearms used.

Yet,
Violent crimes were more often committed with other types of weapons than guns. Knives accounted for 6.2% of violent victimizations and clubs or other blunt instruments were used against 3.0% of victims.

This still speaks to the fact that handguns being available during the heat of the moment can't be a good thing.

I find that this ruling in the U.S. can't bode well with it's neighbour to the north.

andyandy

28th June 2008, 07:18 PM

Not bragging, just pointing out the odd issue that nations that apparently don't want Americans to have guns don't seem to mind selling Americans guns. Para Ordnance, Sig, H&K, Walther, Beretta, Tanfoglio, Howa, and surplus military arms from all over Western and Eastern Europe.

"Yes they're willing, they're willing for the shilling." 1776.

I think you misunderstand the general sentiment. Most Europeans would regard with incredulity America's obsession with guns but that wouldn't extend to wanting Americans not to have them. "Want" implies a strong desire, and as gun ownership in America does not have any effect on the European way of life, that strong desire is not there. Americans might regard with incredulity England's national sport of cricket, but one couldn't extrapolate from that a strong desire that Englishmen did not attend the sport.
Buy as many of our guns as you want, just don't expect us to understand why :)

Gagglegnash

28th June 2008, 07:26 PM

Hi

Why is a law passed 200 years ago still regarded as relevant today? So what if it made sense to have armed militia in the 1700s, why should that dictate whether people can carry guns on the 21st century?

Rhetorical questions I know, because the amendments are treated as if they were handed down by God himself...........;)

Ummm... because it's the law?

Until it's changed, anyhow. Next political backlash cycle, we'll see what still stays.

I do want to ask why, when prohibition has failed, both with alcohol and drugs, why folks think it'll work with firearms. Third time's a charm??

If the people with guns are criminals (big if: I have firearms and have never gotten so much as a speeding ticket) why will they obey the, "no firearms," laws when they refuse to follow the, "no drugs," "no killing people illegally," "no robbing other people," and, "no threatening people with loaded firearms," laws?

In that situation, it seems to me the guns aren't the real problem... the illegal drugs, felony killings, illegal robbery, and criminal coercion are the problems.

So, again: Why will making firearm possession prevent crimes when making the crimes themselves illegal has not?

pchams

28th June 2008, 07:32 PM

More is their wont.

Pope130

28th June 2008, 07:35 PM

I think you misunderstand the general sentiment. Most Europeans would regard with incredulity America's obsession with guns but that wouldn't extend to wanting Americans not to have them. "Want" implies a strong desire, and as gun ownership in America does not have any effect on the European way of life, that strong desire is not there. Americans might regard with incredulity England's national sport of cricket, but one couldn't extrapolate from that a strong desire that Englishmen did not attend the sport.
Buy as many of our guns as you want, just don't expect us to understand why :)

I can certainly accept that as true. Although some Europeans (where is Larsen anyway?) get pretty worked up on the subject.

On the cricket though; while on TDY to the UK there were times when the only stations the TV in the "Q" could get were two different channels of cricket and the Welsh language cooking show. It's surprising how interesting Welsh cooking can be.

a_unique_person

28th June 2008, 07:40 PM

Only a supreme court could come up with this.

Supreme Court: 2nd Amendment NOT about militias

A well regulated Militia,....

Ratatosk

28th June 2008, 07:48 PM

There's something important to keep in mind here. The United States of America is a nation that was founded in a difficult and violent rebellion against a brutal tyrant.

It is very much understandable that someone whose ancestors chose to grovel and cower before this same tyrant, rather than stand against him, might not be capable of understanding the vital principles on which our great nation was founded.

No matter. There are two major points in history where his nation tried to tell us how to run our nation. His side got its ass kicked very hard both times.

Yeah, that George III, he was...he was worse than Hitler, almost as bad as Saddam Hussein!!! Especially that Stamp Act! Oh, the brutality!!

Fortunate that we were freed of that tyranny... except maybe for some people.
http://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833
(30 years is an awfully long time when you're picking cotton)

I was raised here in the U.S. and A., but the insistence that we're the world's only and most free-est free country requires an act of patriotic self-love that I'm afraid might make me go blind.

andyandy

28th June 2008, 07:55 PM

I can certainly accept that as true. Although some Europeans (where is Larsen anyway?) get pretty worked up on the subject.

On the cricket though; while on TDY to the UK there were times when the only stations the TV in the "Q" could get were two different channels of cricket and the Welsh language cooking show. It's surprising how interesting Welsh cooking can be.

Please don't judge all Europeans based on CFLarsen :D

....... cricket is an acquired taste, but I think that it would appeal to people who like baseball. There's quite a bit of similarity between the two sports, it's a slow game with sometimes long periods of nothing much happening, you can appreciate a dot ball (Ball/strike) as much as a run, there are endless statistics to enjoy, and one match can last for hours......

ha, reading that back I don't think I have sold it very well, but it is great :)

Here is a clip of the world's most exciting cricketer, playing the world's most amazing shot - switching from a right-handed position to a left-handed position and still hitting the ball over the ropes for six
A-NZgd-goj4

pchams

28th June 2008, 08:06 PM

Sorry AndyAndy, but now I think you've completely derailed.

US handguns are a problem for Canada. We have different regulations and laws, and most guns move north for cash and weed.

[Note to rwguinn: Some stuff gets across the border]

So we are set with a double-headed monster, or not quite.
US war on drugs vs. canuck war on handguns......

If I was a person looking for a weakness in system.......

Pope130

28th June 2008, 08:09 PM

andyandy,
Well, I watched it, still don't get it, but then I don't watch baseball either.

No, I don't judge all Europeans by a single example, not even Danes. Most of them I've worked with were fine folks. (I almost said "great", but "Great Danes", too easy.)

We don't want the Mods to show us a yellow card (I do watch footy!), so back on topic: I hope that this decision will finally settle the debate about what the Constitution says. If someone wants to start a discussion about what it should say, all well and good.

Robert

Gagglegnash

28th June 2008, 08:14 PM

Hi

Only a supreme court could come up with this.

Yeah! Doesn't everyone know that, in English, putting a dependent clause in front of the independent clause in complex sentences gives the dependent clause the most importance?

....

Oh...

no...

wait.... (http://www.english.uiuc.edu/cws/wworkshop/writer_resources/grammar_handbook/dependent_independent_clauses.htm)

Ratatosk

28th June 2008, 08:21 PM

Hi

I do want to ask why, when prohibition has failed, both with alcohol and drugs, why folks think it'll work with firearms. Third time's a charm??

If the people with guns are criminals (big if: I have firearms and have never gotten so much as a speeding ticket) why will they obey the, "no firearms," laws when they refuse to follow the, "no drugs," "no killing people illegally," "no robbing other people," and, "no threatening people with loaded firearms," laws?

So, again: Why will making firearm possession prevent crimes when making the crimes themselves illegal has not?

The comparison with Prohibition or drug law is pretty far-fetched: I have friends who brew their own beer and friends who grow their own... well, you know. But I don't think people smithing guns in their bathtubs would become commonplace if gun laws became stricter. Plus, there's a strong scent of straw around the notion that anyone's suggesting an outright ban.

If I may return to "well-regulated": The Second Amendent would seem to be saying that it is beneficial if those responsible for defending the nation are well-trained in the use of firearms. This has been institutionalized into something called "boot camp." Going to the store and buying an AK-47 does not qualify anyone as a member of a "well-regulated militia."

My own opinion (not that anyone asked) is that, for starters, firearm ownership should require training at least as rigorous as that for driving a motor vehicle, and a similar licensing system.