It’s unwise to place too much predictive value on the questions that U.S. Supreme Court justices ask during oral arguments; sometimes they are playing devil’s advocate rather than expressing their own leanings. Still, several justices clearly were skeptical Tuesday of the constitutionality of a Washington, D.C., ban on handguns. “In my view, (the Second Amendment is) saying there is a general right to bear arms, quite without reference to a militia,†said Justice Anthony Kennedy, a key swing vote. If a majority agrees, that would be a historic shift from past court interpretations and would open up challenges to other gun laws.
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99 Comments
I hope that the Supreme Court will make a very strong and clear opinion on the individual having a right to own guns.
And then, yes, I hope that we can get a multitude of the stupid gun control laws overturned as well.
I don’t have a dog in this fight really, but I just don’t see how making them illegal makes us safer, since then it’s just the criminals who have them. Making them illegal definitely will not get them off of the streets.
“And then, yes, I hope that we can get a multitude of the stupid gun control laws overturned as well.”
The Supremes will overturn the D C ban, then we will see a shitstorm of challenges to each and every gun control law – this ought to get interesting.
The SCOTUS may take the easy way out and make a very narrow ruling, but from the sound of the questioning, it would appear that they are going to open the door to a dissolution of nearly all gun control laws/rulings.
If nothing else, it will keep the lawyers busy for years to come.
(apologies to GMC and VT if that was offensive)
Phillip
“that would be a historic shift from past court interpretations”
Not from the Supremes point of view. They just had a rarity. A case regarding one of the original amendments with no clear precedent after what, 215 years? Miller was ambiguous.
Remember, the “collective right” view was the product of 20th century judges. “The People” knew better.
Phill
Nonsense!
The Supreme Court has actually NOT given us a great deal of guidance, in the past.
There can be no “shift” if there is no ruling that you can show us.
Please, try to put your bias aside and stick to the facts.
WSC, no offense taken, well, at least by me! :-)
Thinking out loud a bit, the tenor of the questioning as I have read excerpts, implies a bit wider ruling than which I originally had thought, i.e., declaring the DC ordinance unconstitutional with little more.
I would hope that if the ruling is more than what I originally anticipated, SCOTUS would indicate the test to be applied by the courts to any challenged law, ordinance or regulation. Like GMC, I’m hard pressed to imagine anything but “strict scrutiny”.
I would also think, should the opinion be of wider scope than just an unconstitutional due to the violation of the Second Amendment ruling, SCOTUS would do the lower courts, the various legislative bodies, and itself a favor by deciding, in general terms, a “reasonable regulation” test. Much as there is a “reasonableness” test for First Amendment cases (time, place, and manner), it seems to me that a reasonableness test could be and should be fashioned for Second Amendment cases, if, as I believe, the right protected under the said amendment is clearly found to be an individual one. The reasonableness of the law, etc., would then be tested under the strict scrutiny approach, e.g., compelling state interest, which, IMHO, would validate quite a few existing “gun control” laws as I believe a compelling state interest could be shown. Example: concealed carry legislation, the compelling state interest being assurance that those to whom permits are issued are not felons, insane, etc.
As I have posted before, restrictions on concealed carry, as an example, are not violative of the Second Amendment IMHO. As I recall, GMC is in general agreement with this. Other restrictions on the ownership of various weapons which might well meet the test would include ones on ownership of fully automatic weapons, record checks on sales, and the like.
Of course, just as in many other instances in the past, I could well be totally wrong on what I believe SCOTUS will do. The most recent example of this was the eminent domain case from two terms ago, which I fully believed until the decision was announced would go against the city in that case.
I’ll stand by my prediction. The court will, as WS notes, rule narrowly, however, and they SHOULD rule narrowly. Appellate courts decide the questions presented to them, and do not (or should not) decide issues not necessary to a resolution of the case.
If the Court crafts a narrow opinion, stating that there is Constitutional protection for a personal right to “keep and bear arms,” they will get a majority, perhaps a substantial majority. I think a 6-3 vote is not out of reach for such a narrow framing. If such a right exists, then an outright ban on any functional firearm cannot stand, by any standard of review. Leave for another day the questions of just what might be the standard of review for that right, and just what the paramaters of regulation might be. Leave for another day the question of incorporation.
BTW – Despite Brownlee’s misleading (again) posting, the DC law is just that – a ban on all functional firearms – not just a ban on handguns, as Phil “we have no position” Brownlee misstates. Why am I shocked he got it wrong – he’s gotten the basic facts wrong on these issues consistently. One has to question whether there is an agenda (gasp!) there? Well duh, of course there is . . . he just doesn’t have the basic honesty to admit it.
Once that right is clearly recognized (not “created” or “granted;” the constitution recognizes and protects certain fundamental rights, not creates or grants them – they pre-exist) then the question of standard of review can be taken up. And taken up in the context of an individual right that stands beside other fundamental rights: freedoms of speech, press, assembly, protections against unreasonable search, etc. It will be more difficult to argue for a lesser standard than strict scrutiny with that fundamental right clearly recognized. So Nathan, we’ll get there. Just one step at a time.
It was very interesting, and is very interesting, to watch this case. It is very rare, now some 200+ years into this experiment of democracy, to see the SCOTUS considering a constitutional issue on fresh ground, with little if any precedent of weight to guide them. Enjoy this kiddies; it doesn’t happen everyday.
And yes, if as expected the SCOTUS rules to strike down the DC ban, as they should, then expect a flood of litigation to follow. That is as it should be. First on the list: Chicago, with onerous laws nearly as restrictive as DC’s (unless, of course, you are connected – that’s the Daley way! Just ask a certain B. Obama). in addition to further defining the parameters of the right, such a case will put the matter of incorporation clearly before the court. A serious reading of the 14th amendment and the congressional debates which led to it should make crystal clear that this is indeed a right which is held against the States as well.
And WS, I’m not a bit insulted. ;)
That’s the way the system works – slow, ponderous, a case at a time. It is our common law heritage in action.
GMC, I agree that the case should be decided narrowly, for the reasons you state. Yes, there will be a flood of litigation, as there should be, given our common law heritage. No disagreement there.
I, however, believe that the decision will be a bit wider, though, than might be otherwise absolutely necessary.I appreciate the fact that “incorporation” is not properly before the Court, and it should be silent on this issue in this case, the “strict scrutiny” standard of review, at least, should be clearly stated in the opinion(s), as a guide to the lower courts. As always, just my opinion.
I guess the ultimate issue is whether the courts decide what’s legal, or whether the legislatures do.
So even if strict scrutiny applies, I’m not sure we’ll see that much difference in the nation’s gun laws.
The courts shouldn’t even be hearing this. According to our Constitution, we have a right to own a cannon if we want. Do we think that our Founding Fathers saw into the future far enough to see 1903’s Militia Act? Hardly. We the (so-called) People are the militia.
Narrow/Wide vote my ass.
According to these scumbag judges, what will account for “reasonable” law? Taking a gun to a shooting range with an instructor once a month, then handing your weapon over afterwards?
“In my view, (the Second Amendment is) saying there is a general right to bear arms, quite without reference to a militia,” said Justice Anthony Kennedy, a key swing vote. If a majority agrees, that would be a historic shift from past court interpretations and would open up challenges to other gun laws.
===================================================
Really? Is this true? This would be a historic shift from past court rulings?
Which rulings specifically?
Brownlee, fess-up. You want all guns banned.
VT –
The reason I think it will be narrow is that Roberts will want a ruling he can get a more than 5-4 decision on. I think he has 5-4, even for a wide-ranging ruling. But I suspect he wants a stronger statment, and wants at least a 6-3 to get it. Keeping the ruling narrow, and leaving for another day the parameters of strict/intermediate/rational basis scrutiny may well get him that more significant majority.
Scrutiny levels will wait for another day. I can be patient . . .
I want to agree with “GMC70″ for a moment –
(And book mark this post, because it doesn’t happen often)
I think this most-conservative SCOTUS for three generations will blink and not give us a definitive definition of what the Second Amendment means in the 21st Century. Their decision will mostly likely spur more and more challenges, regardless of how they decide.
People who support reasonable gun control laws won’t be satisifed. And the pro-gun nuts — the ones who really, really, REALLY! REALLY!!!! want more guns — will consider any decision worthy of revolution.
History will remember the Roberts-Alito-Scalia-Thomas SCOTUS as the most fringe-right court in America’s history. If they don’t satisfy the gun nuts, nobody will.
If (as in other issues) you claim to be an advocate of Original Intent, the Second Amendment assures your right to keep and bear a smooth-bore, muzzle-loaded, flintlock musket; the standard militia weapon of 1789. Thomas Jefferson and James Madison and Benjamin Franklin et al would be appalled if they’d had any idea that the 2nd Amendment might grant “Nathan” the right to carry an AK-47 to the mall.
But this court just might decide that way.
I’ll stay away from the mall.
It’s an individual right…but…but…
No, the Second Amendment allows me to carry any gun I want in order to fight against a wanna-be tyrannical government. Not your flint lock crap.
“If (as in other issues) you claim to be an advocate of Original Intent, the Second Amendment assures your right to keep and bear a smooth-bore, muzzle-loaded, flintlock musket; the standard militia weapon of 1789. ”
And freedom of the press means the right to publish on an old press machine, and does not include the internet, or offset printing, or even the old typeset machines, since I don’t believe they had been invented yet–though I am not certainn
sorry, I beleive your argument to be erroneous, and irrevelant.
“Thomas Jefferson and James Madison and Benjamin Franklin et al would be appalled”
And if by that you mean the far reaching control of the federal goverment, I would have to agree.
MH –
I’ll note this day too. I think this is twice, BTW!
I’ve never claimed to be an advocate for original intent. I’m not an advocate for ‘intent’ at all as a basis for interpretation; while an individual may have a particular intent, there IS no intent for a collective body – it’s a myth, a legal fiction. I am, rather, a texturalist. That is, I think the proper and in fact only starting point for constitutional litigation (or the interpretation of any other controlling text) is the language of the text, read and understood as a reasonably well-informed person of the time it was written would understand it. That does not, of course, solve all controversies, but it at least gives us 1) a consistent place to begin, and 2) a basis for recognizing the constitution is what it claims it is, and what we like to say it is (despite the recent tendency to make it up as we go along, and wrap the result in the cloth of the constitution): supreme law, not subject to the whims of the day (or the current members of the court), not changable by ordinary means.
As far as the rest, your “smooth-bore musket” comment is just what most of your commentary on this subject is: farce. If you want to be taken seriously, you have to be serious. You’re not. You offer the absurd, wrapped up in your usual sanctimonious crap. LJ has the response just right, and he’s taken you more seriously than you deserve to be taken with such drivel.
And I’d remind you that “reasonable” in this case was argued by the petitioners to be a total ban on operable firearms. So much for “reasonable,” as the gun control activists put it. In their eyes, nothing short of abolition is “reasonable.” Thanks for conceding that point.
The rest of your post follows the same pattern: drivel.
“littlejohn” respond to my post –
“If (as in other issues) you claim to be an advocate of Original Intent, the Second Amendment assures your right to keep and bear a smooth-bore, muzzle-loaded, flintlock musket; the standard militia weapon of 1789. ”
with…
“And freedom of the press means the right to publish on an old press machine, and does not include the internet, or offset printing, or even the old typeset machines, since I don’t believe they had been invented yet–though I am not certain (sic)
Go back, “littlejohnson” to my original post. And read it this time.
All SCOTUS decisions ragarding 1st Amendment rights have addressed the evolution of what “freedom of the press” means constitutionally.
If you’ll read my original post you’ll realize that nothing regarding 1st Amendment decisions vis a vis “the internet, or offset printing” embraced the CONservative talking points of “original intent.” Because “original intent” is a false issue; a false premise.
“Original Intent” is a fallacy of contemporary CONservative rhetoric.
It’s like the old law school lesson:
If the law is against you, argue the facts.
If the facts are against you, argue the law.
If the law and and the facts are against you, wave your hands and holler!
CONs are waving their hands and hollering these days.
Think about it.
We don’t have to speculate on how Clarence Thomas is going to rule.
No questions. No comments. Vote like Scalia.
Thurgood Marshall is waiting on the other side to kick his sorry ass.
Of course, Thomas won’t be going where Marshall went . . .
Hey MonkeyHawk-
While I disagree with your argument, the “littejohnson” is typical of your rants and attacks. I generally choose to ignore such childish endeavors as yours. Nice attempt at attack, and my johnson is none of your business. big or little.
Can;t argue the message, attack the messenger.
Nice
I so want that handgun ban to get struck down.
I want Todd Tiahrt to enjoy that same feeling of security that we enjoy here in Kansas, having no idea if the homeless guy muttering to himself in Dillons’ is armed with a 9mm Glock.
“littlejohn” comes up with –
“While I disagree with your argument, the “littejohnson” is typical of your rants and attacks. I generally choose to ignore such childish endeavors as yours. Nice attempt at attack, and my johnson is none of your business. big or little.
“Can;t argue the message, attack the messenger.
I notice, “littlejohn,” how you didn’t address my message.
Nice
And “littlejohn” chose to non-capitalized his personal reference to his “johnson.”
TDT,
“…I just don’t see how making them illegal makes us safer, since then it’s just the criminals who have them.”
Considering that the majority of handgun murders are committed by people who were’t criminals until they pulled that trigger, we’d probably be a lot safer if just the criminals had guns.
Cap’n,
Please! The homeless guy muttering to himself in Dillons can’t afford a 9mm Glock.
Capn –
Still muttering to yourself about irrelevencies, upset that Thomas isn’t responsible to your opinions? Still waving that racist flag? Or perhaps, you’re jealous that someone, apparantly unlike you, can think without moving their lips. Too bad for you.
BTW – just how would ANY handgun law assure you that “the homeless guy muttering to himself in Dillons’ is [not] armed with a 9mm Glock?” It won’t of course, which is the fatal fallacy of nearly all gun control law. And remember, as I reminded MH, that DC was here arguing “reasonable regulation” was a total ban on operable firearms. Wanna tell me again how I should not be opposed to “reasonable regulation,” at least as the left defines it?
—
MH – You’re still poking the straw man. No one has argued original intent, yet you argue “original intent” is a fallacy. Moreover, you fail utterly in your criticism:
1) do not define what originalism IS (except that you’re against it – well, gosh, that should be enough, huh?
2) fail to point out why or how it is improper to use as a guide for constitutional interpretation or the alleged flaws in its philosophical viewpoint
3) fail to offer any philosophical starting point for interpretation as an alternative.
No, your criticism is: well it’s conservative, it must be bad, ’cause I don’t like it. Damn, that’s deep.
What you seek apparantly is result oriented jurisprudence, with courts guided by the whims of popular opinion, or perhaps more accurately, YOUR opinion. While you are indeed entitled to your opinion, you’ll please excuse the other 300 million or so of us if we don’t genuflect at your mutterings.
And once again, LJ has got you pegged just about right.
“Considering that the majority of handgun murders are committed by people who were’t criminals until they pulled that trigger, we’d probably be a lot safer if just the criminals had guns.”
Wanna back up that statement? I smell BS when I see it – and I see it.
You’re right of course, GMC.
We’d be better off if none of the Justices asked any questions or made any comments.
Capn:
Let’s not pretend this has anything to do with whether Justice Thomas asks any questions. We both know it’s not. It just your racist expectations raising their ugly head again. How DARE he have an unapproved opinion – after all we good liberals have done for him!
So you can continue to hide behind the “doesn’t ask any questions” mantra if you like, but I know, you know, and those on this board paying attention know better. You are what you are. And it’s ugly.
The argument that made before the Court, as I understand it (having missed part of it) is similar to a First Amendment argument–that the courts would decide which weapons would be regarded as analogous to the weapons deemed necessary for militia readiness.
There are all kinds of problems with that argument (machine guns okay?). I suspect folks are hoping that the Court simply declares by fiat that “personal protection” is the standard, but I can’t even see this Court doing it.
The issue is still as muddier than ever. Since there probably will be five votes (now that Kennedy bluntly expressed his view), the Supremes are going to have to offer a clear alternative to the standard stated in Miller and its precedents (i.e. Cruikshank, Robertson, Presser), i.e., a reasonable relationship to the effectiveness of the militia. Kennedy at least is clearly rejecting that reasoning entirely.
If they don’t, we won’t just see a flood of lawsuits. We’ll have lower court judges who’ll have no idea how they’re expected to rule.
CapnAmerica,
What on Earth does that handgun ban have to do with a homeless guy carrying a 9mm in Dillon’s?
On top of that, how do you know if he isn’t already?
Typical anti-gun myth.
That somehow allowing law abiding citizens the ability to carry concealed will all of a sudden mean anyone could be carrying a gun.
The criminals are already carrying guns. Allowing law abiding citizens to do the same shouldn’t frighten you.
CapnAmerica,
You don’t seem to know the difference between being allowed to own a handgun and having permission to carry one.
Why don’t you stop pretending to read my mind?
I’m not criticizing Thomas because he’s a hypocritical CON who opposes things like affirmative-action now that he himself has benefitted from it, even though he richly deserves to be criticized on those grounds and many others.
I’m echoing the observation that many have made that Thomas isn’t his own man. He just parrots whatever Scalia does.
It has held true once again.
You can’t dispute that obvious fact so you go to my motives.
My motives are irrelevent to the truth of the fact. The man is not a thinker; he lets Scalia think for him.
Actually, Thomas is even crazier than Scalia. Sometimes he votes his own (E.g., he alone wanted to overturn the Tinker decision), but the Capn is correct that Thomas rarely (if ever) asks questions, and votes with Scalia the lion’s share of the time.
I know Nathan.
You actually feel safer imagining that guy has a 9mm.
It’s all part of the right-wing “up is down, black is white” way of coping with reality.
CapnAmerica,
Have you ever thought about actually responding to the point someone made in their post to you?
I’m not pretending, Capn. Your motives are plain as day. You don’t even attempt to hide them.
“The man is not a thinker.” And now you pretend to read Thomas’ mind.
You are what you are. Denial doesn’t change it.
I’ve thought about it.
But what fun is that?
OMGord!
You’re right, GMC. I do hate Thomas because he’s bat-sh!t crazy right-wing ideologue.
Also . . . because he’s a dumbass.
‘Course the two so often keep company nowadays, don’t they?
Isn’t there a story about Thomas having his law degree (from Yale, IIRC) in his basement with a 25 cents sticker on it? If that is true, what is that saying exactly? I am guessing it is saying that he is not a real happy man.
Rage:
“Capn is correct that Thomas rarely (if ever) asks questions, and votes with Scalia the lion’s share of the time.”
Which is evidence of what, exactly? It demonstrates that most of the time, Thomas tends to agree in large part with Scalia. OK; I tend to agree in large part with Scalia. Now – just what does that prove?
_____
Capn:
“It’s all part of the right-wing “up is down, black is white” way of coping with reality.”
As usual, you’ve misstated Nathan’s point, and mine. You know that, of course, you’re not that stupid, even if you can’t think without moving your lips. Nathan’s point, and mine, is that NO gun control law will assure you that your mythical homeless man muttering in Dillons is not armed. NOTHING, short of searching everyone you meet, will assure same. You mindlessly ignore the most obvious facts. I’ll help – Say this slowly, Capn, you just might get it. You can even move your lips, if that helps:
Criminals who intend to do you harm don’t obey the law. That’s – wait for it, it’s hard – because they’re criminals.
Yeesh. I swear, some people don’t have the sense God gave a goldfish . . .
CapnAmerica
Posted March 19, 2008 at 3:25 pm | Permalink
I so want that handgun ban to get struck down.
I want Todd Tiahrt to enjoy that same feeling of security that we enjoy here in Kansas, having no idea if the homeless guy muttering to himself in Dillons’ is armed with a 9mm Glock.
===================================================
And what’s that crime rate in “gun-free” DC compared to Kansas, where everybody is packin heat like it’s still the Wild West?
OK; I tend to agree in large part with Scalia. Now – just what does that prove?
Uhm. . that you’re a fascist? ;)
Number of Murders in Kansas vs DC. Note, in 2006 the population of KS was 2,764,075 or nearly FIVE TIMES higher then DC’s 581,530.
Yet DC had almost twice as many murders.
Murder rate in 2006 per 100,000 people:
Kansas = 4.6
DC = 29.1
…..DC……Kansas
2003 249…..125
2004 198…..122
2005 195…..102
2006 169…..127
TOTL 811…..476
2007 181…..na
http://bjsdata.ojp.usdoj.gov/dataonline/Search/Crime/State/RunCrimeStatebyState
http://bjsdata.ojp.usdoj.gov/dataonline/
^^^
Better Link.
Yet DC had almost twice as many murders.
Well, Max, as you also should know, they claimed a noticeable drop in gun crimes occured after the law passed also. Granted, correlation is not causation.
But there’s another issue: aren’t Courts generally not supposed to weigh in on the wisdom of a law, whether it’s genius or folly?
I can see an outright ban on handguns (and that’s what was discussed in oral arguments, notwithstanding GMC’s comments), might be said to run afoul of the Second Amendment, without having to weigh in on the wisdom of the ban.
What about issues that aren’t so clear-cut, e.g., the trigger-lock provision?
Even the most ardent Second Amendment supporters have to admit, this gonna be one helluva can o’ worms.
Rage:
The problem with relying on Miller, of course, is that Miller simply does not have the standard you ascribe to it. It is, at best, ambiguous, as Kennedy acknowledged. In fact, it is premised on the existance of an individual right to possess firearms. It’s (rather thin) analysis makes no sense in any other context.
That’s what makes this case so fascinating (aside from the obvious fact it is dealing with one of this society’s hot buttons). Rarely does the Court today deal with an issue that has not been predefined for them with a great deal of precedent. This issue, unlike most others, is practically a blank slate, unshaped by stare decisis. Stare decisis itself, of course, isn’t binding; there is no reason to think that past courts are any more likely to be “right” than the current court. But our common law system puts a great deal of weight on past precedent that this issue simply does not have.
That means that those rather esoteric philosophies of constitutional interpretation, which often get buried in citation after citation to precedent, are likely to get a much larger role here. And that is fascinating. And it raises the question: if the language of the text, as understood by a reasonably well-educated man at the time of its enactment is not binding on us, just what is? What is a constitution at all, if its text is not binding?
The problem with relying on Miller, of course, is that Miller simply does not have the standard you ascribe to it. It is, at best, ambiguous, as Kennedy acknowledged.
Hehe, GMC, sometimes you’re so completely full as shit.
In the absence of any evidence tending to show that possession or use of a ’shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174
Rage –
If I thought you had any real understanding of either myself, Scalia, or the term ‘fascist,’ I’d be insulted. But ignorance is something of a shield, I guess.
And Rage, a “ban on handguns” is what the petitioners, DC, wanted to argue. But that is NOT the law that was passed by DC, nor was it the holding of the lower court. DC wanted to reshape the argument, because the facts if they do not reshape them are untenable. DC has good lawyers, and good lawyers attempt to shift the frame of the debate when that frame is unfavorable. That is what DC tried to do. If you listened to the orals, it’s clear the Court was not buying it. Otherwise, they wouldn’t have kept asking how long it would take to remove a triggerlock. Scalia even commented, to laughter, that same would have to be done while looking for his glasses, and reaching for the bedside light, even as the bad guy is kicking in your door. No, Rage, the DC law barred the possession of operable firearms. And the Court recognized that, even if the DC lawyers wanted to deny it.
And yes, it will be a can of worms. But one that has needed to be cleaned out for a long time. I’d point out, as I have above, that DC was arguing that a complete ban on operable firearms was “reasonable regulation.” And you wonder why so many of us are skeptical when you argue that we should impose “reasonable regulations” on firearms? Because for far too many on the left, “reasonable regulation” IS, in fact, abolition.
I don’t know Rage, look at the crime rate in DC from 1976 to 2007 and you tell me if crime went down since then. Link is above. Or just believe what you are told.
Good point on the Wisdom of the Law. It’s amazing how many things the founders got right back in 1776. They KNEW then the importance of The People having arms, just like they knew the importance of The People to have Freedom of Speech.
Until human nature changes, we will need to defend our right to communicate, and our right to defend our lives, because they are ALWAYS under attack by those who would control us.
The founders had great wisdom.
It’s amazing how many things the founders got right back in 1776. They KNEW then the importance of The People having arms, just like they knew the importance of The People to have Freedom of Speech.
This from the same one who regularly bashes the ACLU, an organization that vigorously defends the Bill of Rights–and not just because of their position on the 2nd Amendment, but rather because they dare to defend the rights of people he doesn’t like.
And, by the way–the Founders didn’t get any of that right in 1776. That was just the Declaration of Independence, period.
Constitution: 1787
Bill or Rights: 1791
Just thought you should know.
The ACLU normally bashes the 2nd Amendment. The ACLU picks the rights it wants to “protect”.
Didn’t the ACLU just file an amicus brief, against the 2nd Amendment?
Glad you were there to remember the exact date Rage. Thanks.
BTW-Many of the same signors of the Declaration of Independence also signed the Constitution. And they got the Declarion right too, didn’t they!
The second amendment says what it says, get over it gun-grabbers.
The ACLU normally bashes the 2nd Amendment.
That–of course–is crap.
Didn’t the ACLU just file an amicus brief, against the 2nd Amendment?
Since ACLU doesn’t file briefs against the Bill of Rights, that would be no.
Rage,
The ACLU says on their website that they do not recognize an individual right in the 2nd Amendment.
“We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today’s world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.”
http://www.aclu.org/police/gen/14523res20020304.html
So, they might not bash the 2nd amendment, but they are sure not pro gun or individual rights on it.
Here is an interesting question:
If the Supreme Court does rule in obvious favor of the Second Amendment protecting an individuals right to bear arms, will the ACLU change it’s policy towards how it recognized the Second Amendment?
How interesting that would be.
I might just start supporting the ACLU if they fought to protect an individuals right to own a gun as much as they did for a pervert to collect underage porn.
I’ve not seen the ACLU ever support any rights to bear arms.
I HAVE had a heated argument with a lobbyist from the ACLU over gun rights.
The ACLU does not support the entire bill of rights, period.
When has the ACLU vigorously defended the 2nd Amendment? Never. And Rage lies about that.
And he lies about me bashing the ACLU before. I don’t recall ever bashing the ACLU on this blog. Didn’t have time to get around to it, or I would have!
Hmmm.
I think that would be GMC70 and Nathan, 2, Rage and the ACLU, 0.
Game, set match. Next?
Sorry. I miscounted.
That’s GMC70, Nathan, and MAx, 2; Rage and the ACLU, 0.
That’s 3 against 2, of course. But still- game, set, match.
Haven’t weighed in on this one much.
Of course, what we are dealing with here is folks who need to strap on their manhood in the form of a gun.
Sigh…I guess we have to accomodate them. Though it would be better for them if they sought mental counsel for their difficulties.
Truly I feel sorry for them. SO I guess we must afford them comfort.
I think that would be GMC70 and Nathan, 2, Rage and the ACLU, 0.
Game, set match. Next?
Why did I bother to even look. . .sigh. . . I still have work to do. . .and I suspect that’s not GMC–he’d never let me off that easy! :)
If the Supreme Court does rule in obvious favor of the Second Amendment protecting an individuals right to bear arms, will the ACLU change it’s policy towards how it recognized the Second Amendment?
Well, I’m reserving judgment on what you call “obvious,” Nathan, but, yes, under some coherent analysis, the ACLU would have to defend individuals deprived of their Second Amendment rights.
In fact, that’s a no-brainer, as the Fourteenth Amendment demands that citizens receive equal protection of the laws.
Rage -
Yes, it’s me. It’s late. I just finished a movie. And I’m going to bed.
And you’re still wrong.
As to JR, well, he’ll have to deal with his own inadequacy issues, rather than projecting them on others. If you’ve read his postings, as he becomes increasingly nutty, you’ll understand.
Ah…
So this will lead to yet another question.
Does the ACLU only defend rights as defined by the Supreme Court at “X” time or by what the ACLU believes the Bill of Rights to mean?
Kind of a “what came first the chicken or the egg” question.
Does the ACLU only defend rights as defined by the Supreme Court at “X” time or by what the ACLU believes the Bill of Rights to mean?
Oh, there will certainly be furious arguments aplenty about the latter in this instance, but, in my own view, in the final analysis, equal protection–if a right exists, as a matter of practical fact, it should be equally available–will carry the day.
Good question, actually.
The ACLU does argue on the basis on precedent, because that’s the immediate reality. The ACLU also takes positions that openly clash with precedent, but doesn’t have the temerity to pretend those court decisions don’t exist.
Yes, that’s the harsh reality: the ACLU only takes cases it thinks it has some possibility of winning. Imagine that! Funds are limited. Of course, even the ACLU’s “ideal” positions are not a bright line you can throw down on a football field. There are details.
But that’s beside the point: In the case of the Second Amendment, you won’t find the ACLU arguing against fresh precedent for more restrictions. That’s not their job.
Their current Second Amendment position is actually just adopting the reasoning of Miller (though GMC, of course, doesn’t think so). It’s as close to a neutral position as one can get.
The notion that the 2nd Amendment to the Constitution of the United States of America entitles all citizens to keep and own guns in our current age is ridiculous. I do not suggest that it should either be legal or illegal to own a gun in this opinion; my assertion here is that the Constitution itself (or at least the 2nd amendment to it) does not confer a “right” to own a gun on citizens in the 21st century United States of America.
The second amendment reads:
“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.”
The copies of the Bill of Rights sent to the states for ratification raises more questions about the original due to capitalization and grammar changes:
“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.”
This statement does, unfortunately, leave a great deal of room for argument. So what is the object of this all-important shall not be infringed command? Did it mean that the well-regulated militia shall not be infringed? We can agree that the clause “being necessary to the security of a free State” refers to the militia. The real question the debate seems to focus on is that other clause in there: “the right of the people to keep and bear arms”. The version that was ratified by the states seems to make the case against a constitutional right to bear arms outside of the militia context more definite- it specifically associates the first clause as explaining the need for a well-regulated militia (necessary to the security of a free state) and then appears to relate the whole of the rest of the sentence as a support for that need, not as a separate right to be granted.
In the context of the time in which it was written and also in the times in which we live today, however, I think common sense makes this issue clear. Certainly the chief goal of this amendment was to ensure that militias could be raised for the purpose of securing the states. The main reason for the use of militias for that role was because the federal army was nothing but a collection of state militias. The states were reasonably concerned about federal powers and the opportunity for tyranny over the states considering what the colonies had just suffered under mother England. At the time it was also thought impossible for a federal army to be powerful enough to defend the country.
One of the reasons for that was simple math under the terms of warfare in the 18th (and much of the 19th) century. An army was cannons, horses, men, and guns. Troop and gun numbers were everything, and therefore the only way to maintain military strength was to ensure that militias could be quickly raised. It was also common practice at the time for citizen-soldiers who could be called into action to buy, maintain, and bring their own weapons.
Although many constitutional statements have proved timeless, guns and warfare are both primarily dependent on technology and such technology (and consequently warfare) has changed drastically. We live in a world where one weapon of mass destruction can easily mean the destruction of an army larger than any ever imagined at that time, and today the United States happens to be the single greatest wielder of such weapons in the world. We no longer live in a country that uses “well-regulated militias” on terms even comparable to what was contemporary to the Constitution. I will agree that we can loosely apply the “well-regulated militia” to our current state National Guard units, that they should definitely be well regulated, and that they should not be infringed upon in their right to bear arms.
If we had a system by which such units relied upon the readiness of state populations, bearing their own arms, to be called upon as part of those militias, I could agree with this meaning that such populations should therefore be permitted under this amendment to own guns. This, however, is not the case, and there is no practical reason for a citizen to own guns for the purpose of being prepared to be called upon by their home state’s National Guard unit. It is also absurd to take the position that in some unthinkable emergency or scenario where the federal government invaded one of the states illegally that citizens with their own private gun collections would make any difference at all. It’s a moot point.
The technology of modern military might, in the argument that the practice of “bearing arms” at home is for the purpose of national or state defense, nullifies it. If one makes that claim, then one would have to adjust the entitlement of rights under this amendment, by extension, to intend that private citizens should not be infringed upon in their right to keep and bear nuclear warheads or tomahawk cruise missiles.
There may be reasons why it should be legal to own certain types of weapons, and certainly the states must regulate those weapons, but the Constitution and the 2nd Amendment of the Bill of Rights absolutely do not give citizens the right to bear arms for the purposes of hunting, self-defense, sport, hobbies, or any other reason except for well regulated militias, which are no longer relevant to our time. The Constitution does not disallow these other gun ownership and use rights, but neither does it confer them. It would seem that there is something about owning a gun that makes the owner completely irrational about not being able to own it. That irrationality leads to powerful lobbying, and that lobbying is what drives this argument, not patriotism or Constitutional reverence.
Well I think it is your own inadequacy that is brought into question here GMC.
Shall I got get posts where you yourself picked up your balls and went home? I means so the newer readers know.
Seek counsel councilor.
John F Jaymes,
About the only thing your post is missing is ANY CITED WRITINGS FROM THE FOUNDING FATHERS OR OTHER DOCUMENTATION TO SUPPORT YOUR OPINION.
I could easily make the argument that the primary reasons for the second amendment were to protect against tyranny and for self defense. I could also show you an ample amount of written material from those that were part of writing the Bill of Rights to prove it.
All these apply to an INDIVIDUAL having the right to bear arms.
It is not ridiculous at all.
It’s a great day for us gun owners! There is little doubt that our position, i.e. the right to keep and bear arms is an individual right.
So the devil is in the details: What is a reasonable restriction? Not a blanket, “everybody” prohibition, as indicated by Justice Roberts. OK, over 21, not a felon, maybe a qualification, maybe even licensing, depending on the circumstances and law.
The same Supreme Court, who, can find such inferred rights as a right to abortion, and the right to privacy (neither mentioned in the Constitution or the Bill of Rights) can suddenly “find” a right just under their nose, in the Second Ammendment? Of course they can!
This will be the new Roe vs Wade. Proponents will argue their Supreme-Court-Agreed-Upon “right,” while opponents push the limits of what is reasonable and what is not.
Enjoy the ride, folks! And get your guns, permits, and licenses while you can!
Mr. Jaymes:
The huge flaw in your position is this: The constitution does not confer rights at all.
Rights pre-exist; they come from God, or our status as independent human beings, or from our common law tradition, however you want to phrase it. But they do NOT come from some constitutional grant of rights. Rights are not the gov’ts to confer. They are, in the words of Jefferson, inalienable.
In fact, the opposite is true. Gov’t exists because we grant it authority, and only that authority we are willing to grant it. It is, however, the nature of gov’ts to expand and abuse that authority given any opportunity to do so. And it is that fact which provides ultimately the rationale for the 2nd Amendment.
Madison understood that. Jefferson understood that. Washington understood that. The Founders, in fact, were nearly universal in acknowledging that (and they differed on almost everything else!). And it’s still true. Because no matter the change in military technology, human nature has not change one iota, and never will, this side of heaven.
Put it this way: The rest of the Bill of Rights, ultimately, rests it’s continued existance on the ability of the people to do what the 2nd amendment protects (NOT grants). To protect one’s own life, if necessary. My life is mine, not the State’s, and I am entitled by my status as a human being to defend it. And I am entitled by my status as a human being to have to tools to do the job. A further rationale was to make sure the sovereign people retained the means to limit, with force of arms if necessary, an overreaching and abusive State. That’s unspoken, and no gov’t wants to grant its own people the means for its destruction. But philosophically, that is the undercurrent that is there.
And THAT is what the 2nd amendment protects in that one neat, clear, operative phrase: “the right OF THE PEOPLE to keep and bear arms shall not be infringed.” “Right of the people” is a term of art; it appears in the 1st Am., in the 4th, and in the 9th side by side with a specific right of the States. Get a transcript of the oral argument and Scalia’s telling comment to DC’s counsel early in the questioning. If the 2nd Am. was written to protect only state organized militias, that’s a very odd choice of words, isn’t it?
No; the collective rights argument is a loser on its face. It never made any real sense, in the context of the constitutional history and framework. It was adopted because it gave constitutional face to what liberals wanted to do: ban guns. That thin patina of constitutionality has now been stripped away, and the right will be affirmed as what it is – a right. Not absolute, for no right is; not without any limits. But a right nonetheless.
And with that, I think I’ve about rode this horse to victory. Rage, still wanna make that bet? A 5-4 win for the 2nd Am. appears to be a safe bet; I’ll go for 6-3. Bryer, Souter (oddly, given his home state of New Hampshire), and Stevens or Ginsburg will be on the losing side, but I’ll bet we get one of those last two, and if questioning can be divination, I’m thinking Ginsburg may move to the side of the angels here. Maybe wishful thinking, but we’ll see.
and JR: Bring it on. I don’t think you’ve got the balls. I KNOW you don’t have the intelligence.
Actually, GMC, if it’s on the judgment alone, irrespective of reasoning, you might be right. But there’s no way in hell Souter will be on the same page as Kennedy or Alito on this.
So I’ll have to listen to the full oral arguments (why be handicapped? :)) and think about it.
I’ll get back to you.
Or Ginsburg (well, I guess I exposed my thinking there! :)
In fact, the opposite is true. Gov’t exists because we grant it authority, and only that authority we are willing to grant it. It is, however, the nature of gov’ts to expand and abuse that authority given any opportunity to do so. GMC70
====================================================
Already today, Government acts in the opposite way, as if Government has all the authority, and IT grants a few limited rights to The People.
Practically everything is regulated, with a fee for everything every time you turn around. And the Libs constantly demand more regulation to make sure the Government protects The People from themselves.
The tendancy of any Government is to usurp more power, and we have many Sheeple in America actually encouraging this to occur.
Good posts above GMC, and I hope your forecast is correct. I am a little more cynical then you in trusting our Government to do the right thing.
If the Government can now take our private land for private use, giving our homes away to some developers, then I would not be surprised if the SCOTUS decided it would be ok to take more rights away from The People.
I hope they overturn the ban in DC, then when the murder rate shoots up (excuse the pun), they’ll know for sure it was because of easier access to hand guns.
When law-abiding citizens are allowed access to handguns, murder rates go down.
Today, the only ones in DC who have access to handguns are the police, and the criminals.
Mary, Mary, Mary:
Every time a state passed legal concealed carry, we heard that cry from the left. And every time, the left was wrong. When will you ever learn?
This prediction was wrong before, and it will be wrong again.
And Max – Yes, Kelo was one of the dark days on the Court. I’m confident this will go the right way. In any case, it always makes sense to keep your powder dry.
John F. Jaymes, you are WRONG! Well written post but completely wrong.
Individual rights refer to the rights of the individual, distinct from civil rights, legal rights, and group rights (or privileges) granted by government and varying with the organization and administration of the government. Individual rights identify a boundary of just social interactions, in the presence or absence of government.
In the United States, the Constitution outlines INDIVIDUAL RIGHTS within the Bill of Rights. In Canada, the Canadian Charter of Rights and Freedoms serves the same function. One of the key differences between the two documents is that some rights in the Canadian Charter can be overridden by governments if they deliberately do so as long as “the resulting balance of individual rights and social rights remains appropriate to a free and democratic society” after the change. In practice, no Canadian government has ever chosen to face the political consequences of actually overriding the Charter. In contrast, in the United States, no such override exists (not even in theory, as is the case in Canada), and judicial activism has been the norm in the interpretation of the Bill of Rights; even a constitutional amendment could not remove these rights entirely, as they are considered inalienable under the natural rights principles the Constitution is founded upon.
The Bill of Rights are Individual Rights and comprises the first ten amendments to the Constitution. Those amendments were adopted between 1789 and 1791, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical.
Our Rights under the Bill of Rights preexist the government, and are not granted by the government, they are outlined as preexisting and can not be taken away by the government.
All of the Amendments in the Bill of Rights are individual rights not collective states rights, to interpret the 2nd. Amendment differently is disingenuous.
Some fun for a change. Check out this “VPC” weblog: http://vpcblog.wordpress.com/
My current favorite part:
“The shocking deadliness is clearly evident. No doubt the assault weapon known as the “Ruger 10/22? earned its name from its ability to kill twenty-two people for every ten shots fired.”
Includes articles such as “John Browning: Dastardly Morman” and includes warnings of the “new danger on the horizon: shoulder fired rifles.”
What makes it so funny, of course, is that the ‘real’ VPC and Brady Bunch are just about that breathlessly over-the-top. This is satire that hits its target dead-on. Enjoy.
“Boxlock” lies –
“All of the Amendments in the Bill of Rights are individual rights not collective states rights, to interpret the 2nd. Amendment differently is disingenuous.”
Perhaps you should read the Ninth and Tenth Amendments.
GMC70…thanks, that was great…funny.
When they ban .50s I wonder if I will have to turn in my muzzleloader?
Monkey, I see where you get your nic…you are dumber than a monkey. You should be careful who you claim lies.
Now go slow and reread the ninth and ten amendments again.
* Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
* Tenth Amendment – Powers of states and people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Interpretation for monkeys;
Ninth; “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Or, the Constitution does not enumerate, or list for monkeys, all the peoples rights. People HAVE rights NOT enumerated in the Constitution but they can NOT be denied. That strengthens the individual and unalienable rights of individuals, the people.
The Tenth; “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR TO THE PEOPLE.
Or, those powers not specifically given to the federal government are reserved to the states or the people, and the previous amendments, including the 2nd., have been specifically given to the people, and can not be infringed by either the federal or state governments.
If you can’t get that maybe something is wrong and you should see a veterinarian.
If they would just ban those nasty 10/22’s and leave the rest alone, we would all be much safer.
All Mary ever brings to a gun discussion is her emotional hate for guns.
That is it. Period.
Everytime I have shown her the numbers on how she is wrong and she still acts like allowing law abiding citizens to own guns will increase the muder rate.
Nathan,
I have no idea how old you are but you will eventually learn that you can’t argue, or at least ever win an argument, with emotion and hormones. No matter how nonsensical their point is, or how well you have brought objective fact into the discussion. You’ll lose ever time.
Not to be critical of Mary but personally I think those women with the ‘cutest brains’ are those that have risen above simple emotion on a subject.
:roll:
Chas is the same way.
There are those who are entrenched in their emotional opinion and their minds are closed to listen to the facts.
Ignorance leads to fear. And fear leads to those who want gun bans.
There are others who have different reasons for banning guns. They are very aware of the facts. They know their political agenda cannot be achieved if the Government does not have complete control over The People.
HillaryCare! for example. Hillary will mandate all purchase health insurance or else! Wages will be garnished. Welfare will be garnished. Or you go to jail.
At some point, even the Sheeple will put their hooves down and refuse to comply with unreasonable and Unconstitutional demands of Government.
Once disarmed, all will have to comply.
“All Mary ever brings to a gun discussion is her emotional hate for guns.
That is it. Period.
Everytime I have shown her the numbers on how she is wrong and she still acts like allowing law abiding citizens to own guns will increase the muder rate.”
Sorry Nathan, but as usual you are wrong…you never have disproven anything I ever posted about gun violence.
We’ll see..if they overturn the ban on hand guns, I’ll bet the rate of violence goes up.
And CC laws have never caused the violence or murder rates to go down. That’s a myth perpetrated by the NRA and other gun nuts. The study by Lott and Mustard was disproven long ago.
LOL. My hormones were gone a long time ago, Nathan. You sexist little pig, you.
‘cuse me..that was meant for you, Boxbrain.
Nathan, see what I mean. The emotion takes over and the response is so quick and heated it’s even directed at the wrong person. :roll:
Good thing Mary doesn’t have a CCW permit, we’d all be full of holes. :twisted:
Mary,
How quickly you forget all the data I posted from the CDC on gun deaths verses the increase in gun ownership.
Everytime you have been proven wrong. Everytime.
You claim that Concealed Carry have “never” caused the violence or murder rates to go down.
That leaves two other options, that concealed carry has no effect or that concealed carry increases violence and murder.
Which one do you believe and why (i.e. data)?
Gun paint company taunts Mayor Bloomberg with paints named after him
http://www.nydailynews.com/news/2008/03/21/2008-03-21_gun_paint_company_taunts_mayor_bloomberg.html
Just a very sad piece I ran across. Tell me – which would have served this poor woman better, her phone, or a firearm and the training to use it?
http://news.findlaw.com/ap/other/1110//03-20-2008/20080320105002_06.html
No brainer. She’d have been better off with the gun.
It’s not just that the police cannot protect you. They don’t even have to come when you call. In most states the government and police owe no legal duty to protect individual citizens from criminal attack.
The District of Columbia’s highest court spelled out plainly the “fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.”[5]
In the especially gruesome landmark case the “no-duty” rule got ugly. Just before dawn on March 16, 1975, two men broke down the back door of a three-story home in Washington, D.C., shared by three women and a child. On the second floor one woman was sexually attacked. Her housemates on the third floor heard her screams and called the police.
The women’s first call to D.C. police got assigned a low priority, so the responding officers arrived at the house, got no answer to their knocks on the door, did a quick check around, and left. When the women frantically called the police a second time, the dispatcher promised help would come—but no officers were even dispatched.
The attackers kidnapped, robbed, raped, and beat all three women over 14 hours. When these women later sued the city and its police for negligently failing to protect them or even to answer their second call, the court held that government had no duty to respond to their call or to protect them. Case dismissed.
http://www.fee.org/publications/the-freeman/article.asp?aid=1758
Washington DC bans guns so you can’t protect yourself.
And at the same time, the Washington DC police Have No Duty To Protect Citizens!
As you said before GMC, when seconds count, the police are SOMETIMES there in minutes.
(The police arrived within 2 minutes at NIU, but the shooting was already OVER, the shooter having killed himself BEFORE the police arrived. So the police saved ZERO lives in this case.)
http://www.dailyprincetonian.com/2008/03/03/20324/
The police at NIU reached the shooter in less than two minutes, but six people were already dead and 15 injured. As terrible as this loss and pain are, the number of dead or injured would have been much higher had it taken just a moment longer for police to respond.
We’ve all said this before, but I’m going to try to state it as quickly and succinctly as possible:
The Anti-Gunners feel that the presence of guns alone make our society less safe. They are missing the mark. Guns in the hands of Bad Guys make our society less safe. Guns in the hands of Good Guys (and of course Women) make our society safer. Further, the Good Guys/Gals should not be denied the right to protect themselves with a tool that the Bad Guys use with impunity.
People kill with guns, as they do with baseball bats, hammers, autos, pillows, etc. It is not the item the people choose to use; it is what they do with the item. A killing might be justified (self-defense) or not (murder.) The instrument used is irrelevent.
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Pick me up in the middle of a hectic work day. I love your writing and your thoughts — both are so sophisticated, yet at the same time casual and comfortable. Thank you for the entertainment and the inspiration to challenge myself to find more \’hap…
Jessie…
Geat post. I added you to my blog roll!…
heat gun…
Didn’t realise there was this type of information out there…