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Fri Jan 18, 2013, 05:03 PM

The central right identified in the Heller decision is

the right to possess a gun in the home, for self-defense.

(It's like the game CLUE... a gun... in the home... for self defense... from Colonel Mustard.)

That is the baseline in current American law.

It combines (however informally) the 2nd Amendment with a long string of common law and constitutional holdings that the home is where our rights are greatest. And public safety concerns from guns in the home are least (not nil, of course, but least) because only someone in your home (like your kids, or a burglar) is in danger.

This OP is not an argument for or against anything. It is information for anyone thinking about what the nature of current American law is, in the context of what constitutes "reasonable regulation."

(For instance, the right diminishes the further you get from the concept of home, like home > yard > car > office > shopping > airplane > Supreme Court. No way the Supreme Court will allow you to carry a gun in the supreme Court chambers!)

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Arrow 31 replies Author Time Post
Reply The central right identified in the Heller decision is (Original post)
cthulu2016 Jan 2013 OP
1StrongBlackMan Jan 2013 #1
cthulu2016 Jan 2013 #3
Recursion Jan 2013 #2
cthulu2016 Jan 2013 #4
Sekhmets Daughter Jan 2013 #9
truebluegreen Jan 2013 #26
1StrongBlackMan Jan 2013 #5
Sekhmets Daughter Jan 2013 #10
Sekhmets Daughter Jan 2013 #6
cthulu2016 Jan 2013 #7
Sekhmets Daughter Jan 2013 #8
jimmy the one Jan 2013 #13
Sekhmets Daughter Jan 2013 #15
cthulu2016 Jan 2013 #18
dairydog91 Jan 2013 #12
Sekhmets Daughter Jan 2013 #14
dairydog91 Jan 2013 #23
Sekhmets Daughter Jan 2013 #28
jimmy the one Jan 2013 #17
dairydog91 Jan 2013 #24
tabasco Jan 2013 #11
X_Digger Jan 2013 #16
cthulu2016 Jan 2013 #19
X_Digger Jan 2013 #20
OneTenthofOnePercent Jan 2013 #21
duffyduff Jan 2013 #22
jimmy the one Jan 2013 #25
jimmy the one Jan 2013 #27
jimmy the one Jan 2013 #29
jimmy the one Jan 2013 #30
jimmy the one Jan 2013 #31

Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 05:11 PM

1. True; but ...

unheard/ignored by those that would have the 2nd Amendment mean they have the right to carry their fire-arm whenever, wherever they want.

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Response to 1StrongBlackMan (Reply #1)

Fri Jan 18, 2013, 05:14 PM

3. Yes. I posted this to narrow the discussion to

gun control in the context of current law.

There are things that would be struck down by courts, and things that would not.

As Heller states, the right identified does not strike down most existing gun control laws, so that also gives much guidance.

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Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 05:13 PM

2. I like the "diminishing with distance" image

Kind of like an inverse square law.

I think it also ties in to the relationship to privacy: the less privacy I can expect somewhere, the more my right to bear arms is subject to regulation.

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Response to Recursion (Reply #2)

Fri Jan 18, 2013, 05:19 PM

4. Right! (I didn't mean distance litteraly, of course, but conceptually)

How much is a space yours. We consider our cars sort of like an extension of our homes, but limited. Cops can't pull over our home to criticize the way we were watching TV.

An office you pay the rent on is like your home, but a commercial lease might be able to specify no guns. (I don't know)

When you are in somebody else's space your autonomy is dimished... your right to have a gun in your home suggests someone else's right to not have your gun on their property.

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Response to cthulu2016 (Reply #4)

Fri Jan 18, 2013, 05:50 PM

9. Not in FL...

To the horror of many business owners, FL passed a law saying people can keep guns in their cars, which are parked in privately owned parking lots.

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Response to cthulu2016 (Reply #4)

Sat Jan 19, 2013, 08:28 AM

26. Don't forget

...> Supreme Court > House of Representatives > Republican National Convention > gun shows.....

Actually not sure of the order but

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Response to Recursion (Reply #2)

Fri Jan 18, 2013, 05:20 PM

5. Yep ...

Good Point.

I wonder how quickly this thread will fall to the bottom?

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Response to Recursion (Reply #2)

Fri Jan 18, 2013, 05:52 PM

10. Stand Your Ground laws have been passed in 24 states...

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Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 05:21 PM

6. Not quite...

What Heller did was completely reverse 200+ years of history and judicial rulings. Prior to Heller the 2nd amendment was not legally viewed as a right for individuals to own guns (Thomas introduced the language of that right in an earlier ruling for which he wrote a concurring opinion in 1997)

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Response to Sekhmets Daughter (Reply #6)

Fri Jan 18, 2013, 05:34 PM

7. Which does not contradict the OP

The core individual right of individuals to own guns deliniated in Heller (for the first time) is to hold guns in the home for self defense.

Heller identifies that as the core of the right, and that the right can be limited relative to that core.

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Response to cthulu2016 (Reply #7)

Fri Jan 18, 2013, 05:47 PM

8. I said not quite...I didn't say you were entirely wrong...

But you are still missing the point...it is not the right to own guns for defense of your home...It is the individual's right to own guns, period. What Heller limited is the right to own military weapons. I just finished reading Toobin's book "The Oath", he deals with this issue and makes it clear. The castle doctrine has been around since long before Heller... that doctrine allows someone to use deadly force to protect their home or 'castle'. So Heller was not needed for that. Heller dealt with the ban on handguns in DC, but the "in defense of the home" nonsense was just to remain consistent with the original case.

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Response to Sekhmets Daughter (Reply #8)

Fri Jan 18, 2013, 06:06 PM

13. Obama disagrees with the liberal SCOTUS?

sekhmets D: What Heller did was completely reverse 200+ years of history and judicial rulings. Prior to Heller the 2nd amendment was not legally viewed as a right for individuals to own guns (Thomas introduced the language of that right in an earlier ruling for which he wrote a concurring opinion in 1997)

Concur with your first sentence, SD, I consider the heller 2008 ruling a subversion of the 2ndA. It's chocked full of misrepresentations, fraudulent portrayals, half truths & tortured reasoning as well.

The ruling creates a bit of a conundrum for obama admin (I'm a staunch dem btw), for they are on record saying, recently to mitigate, 'I support the individual right to keep & bear arms' etcetra, yada yada.
.. Joe, Barack, this heller decision was the ruling of a split 5-4 court, and what you are saying is that you agree with the 5 rightwing justices scalia, alito, thomas, roberts & kennedy, and DISAGREE with the 4 liberal justices ginsburg, sotomayor, souter, & stevens who dissented that it was a militia based right to keep & bear arms.
See the conundrum? How can it be that Joe & Barack are supporting the 5 rightwing justices on this, while tossing the 4 liberal justices under the bus?
.. now there is a bit of wiggle room, in that there are actually 3 interpretations of 2ndA, one the pure militia based RKBA, the other the 'broad' individual (nra version) RKBA, and a third which is a 'narrow individual RKBA' which is really the militia based RKBA with an adjunct narrow individual right to own a gun (in that it wasn't disallowed to keep one at home). So by saying one believes in an individual RKBA could be clever way of using the 'narrow individual RKBA'. The nra only supports the broad individual RKBA.

The supreme court ruling in 1939 2ndA case, frank miller, was a 9-0 unanimous ruling for the militia based RKBA (despite what nra spindoctors have manipulated it into).

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Response to jimmy the one (Reply #13)

Fri Jan 18, 2013, 06:41 PM

15. Yep that is what he is doing.

Sorry, but there it is. The liberals would have upheld the D.C. ban on handguns...the other @#&@*&# overturned that ban. Obama is accepting the conservative view. Scalia wrote the opinion and with his usual hypocrisy he narrowed the decision to not include anything beyond handguns...which is just silly considering the wording of the second amendment.

You have to understand that Obama, wrongheadedly in my opinion, does not consider the courts a venue for social change. He believes that rests with the electorate and the ballot and seems blind to what a court system packed with conservatives can do to legislation. He has been criminally negligent in his judicial appointments.... If he doesn't do a better job filing those openings this term we will be in big trouble if a rethug wins in 2016.

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Response to jimmy the one (Reply #13)

Fri Jan 18, 2013, 06:45 PM

18. Obama supported that in 2008. I objected at the time.

Obama was seduced by a really asinine and cynical Lawrence Tribe view that making the 2nd Amendment an individual right would lead to a left-right consensus on civil liberties.

Seriously stupid... the obvious result will be that someday people will be saying that since guns are regulated, why shouldn't pornography be regulated.

Obama is a sucker for the mythical reasonable Right-Wingers. "If we respect their guns they'll respect our rights."

Yeah, right.

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Response to Sekhmets Daughter (Reply #6)

Fri Jan 18, 2013, 06:02 PM

12. That's not exactly telling the whole truth.

Heller did not reverse 200 years of history. For example, look at the infamous Dred Scott (1857), in which the majority held that people of African descent could not be citizens of the United States and thus lacked Constitutional rights. In its opinion, the majority commented that if African-Americans were citizens of the United States, they would automatically possess Constitutional rights, including the rights "...to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

As far as I can tell, the supposed "200 years" actually only goes back to Miller, a 1939 decision. Even that is highly debatable; it does not openly state that the right is collective as opposed to individual. What it does say, rather specifically, is:

"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."

Furthermore, McReynolds commented that:

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Far from being a clearcut decision in favor of collective rights theory, Miller could very easily be read to mean that the right is individual, but does not protect the right to possess exotic weapons which would have no use if the owner was called up into an irregular militia.

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Response to dairydog91 (Reply #12)

Fri Jan 18, 2013, 06:27 PM

14. How do you get it so backwards?

In the absence of a militia, there is no individual right to bear arms. Look, we didn't establish a full time standing army until the end of the 19th and early 20th century. The Civil War congress called up state militias to fight that war. The first time that anyone used the
"individual's" right to own arms language was Clarence Thomas in a concurring opinion in Printz v United States which overruled part of the Brady bill...mandating background checks. That was in 1997.

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Response to Sekhmets Daughter (Reply #14)

Fri Jan 18, 2013, 10:20 PM

23. Because I read the text of the cases...

Last edited Fri Jan 18, 2013, 10:56 PM - Edit history (1)

And as Dred Scott seemed to show, older justices did think that American citizenship conferred an individual right to keep and bear arms in public. This is not to say that the 2nd Amendment is clear cut, but you seem to be the one peddling a clearcut narrative of how the Amendment works, not me. Miller shows an intersection of the "militia" and the "people's right to keep and bear arms," and I think the text shows a rather more complicated interaction instead of the simplistic community right argument you're making. Miller is particularly relevant since the court seemed to analyze whether Miller individually possessed a right to own a sawed-off shotgun; if the Second Amendment merely protected "state's rights," shouldn't the court simply have dismissed his argument for lack of standing, instead of going into the details of the weapon in question? Rather, the precedent seems to show an individual right, but one which existed for community purposes, and hence the individual right was limited to the extent that it served the stated community purposes.

Ultimately, I think Second Amendment jurisprudence is rather more complicated than the simplistic narrative you seem to prefer. SCOTUS cases directly on point are rather sparse; Cruikshank and Miller are the only cases I can think of which directly address questions of the meaning of the Second Amendment, and Cruikshank isn't particularly useful since it's a pre-14th-Amendment-incorporation case which held that the Second Amendment only prevented Federal action. Instead, direct cases addressing the 2nd Amendment were limited to Miller (Before the 2000s cases), and hence the argument that there was a vast body of ancient SCOTUS precedent supporting the community rights interpretation just isn't a very compelling argument.

In the absence of a militia, there is no individual right to bear arms.
Then give a case to support this point. Since you said that the court overruled "200 years" of precedent, find me a SCOTUS case, dating back to the early 1800s, in which the Court clearly holds that "In the absence of a militia, there is no individual right to bear arms" (Or an equivalent holding).

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Response to dairydog91 (Reply #23)

Sat Jan 19, 2013, 01:37 PM

28. Just read the second amendment...

without your personal preferences.

Also, I said History and judicial rulings... The history of colonial America, the revolution, etc. Before the NRA coup of 1977 which replaced the leadership of that organization with a bunch of gun manufacturers' stooges, there was no attempt to pervert the second amendment into the false narrative you seem to prefer. That would seem to explain why there is a dearth of second amendment cases,
wouldn't it?

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Response to dairydog91 (Reply #12)

Fri Jan 18, 2013, 06:43 PM

17. miller decison unanimous 9 - 0

dairydog: Heller did not reverse 200 years of history. >>>> Yes it did.

dairydog posted: Dred Scott (1857) .. the majority commented that if African-Americans were citizens of the United States, they would automatically possess Constitutional rights, including the rights ".. to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

This supreme court might have interpreted dred scott's states consititutional RKBA as granting scott that ability, dunno.

Also, wiki words this a bit differently than yours, & doesn't specifically call it a {2ndA} 'constitutional right' to keep & carry arms wherever they went. Have you a reputable link? - wiki: It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, ...to sojourn there as long as they pleased, to go where they pleased ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went
------------------------------------------------
dairydog: As far as I can tell, the supposed "200 years" actually only goes back to Miller, a 1939 decision.. it does not openly state that the right is collective as opposed to individual. What it does say, rather specifically, is:
.. "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.."


Let me add another quote from the 1939 supreme court miller ruling: 1) "The Constitution as originally adopted granted to theCongress power - 'To provide for calling forth the Militia to execute the Laws of the Union'.... With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Now, this ruling was UNANIMOUS, 9 - 0, and it contained the above two passages, affirmed by all 9 justices in 1939. Don't you think, if they had indeed thought it an individual RKBA disconnected from militia service (as scalia ruled) at least ONE of the nine justices would'nt've chirped up 'whoa, fellow justices, look how we've worded our rulings, people in future generations are gonna think we intended a militia based Right to Keep & Bear Arms'.
YET NOT ONE SINGLE JUSTICE OBJECTED TO THOSE WORDINGS.

scalia in heller, 2008: We have found only one early 19th-century commentator {being Benjamin Oliver} who clearly conditioned the right to keep and bear arms upon service in the militia -- and he recognized that the prevailing view was to the contrary." - scalia blows smoke in his tailing, so what?

Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such {militia-related} purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it."

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Response to jimmy the one (Reply #17)

Fri Jan 18, 2013, 10:52 PM

24. Cite cases, please.

dairydog: Heller did not reverse 200 years of history. >>>> Yes it did.
Cite a case, please. Find a case, from 1812 or earlier, in which a Court states that the right to keep and bear arms is communal, not individual. Any court case will do (Federal preferred), but I want to see the text. Higher level courts would be preferable.

Also, wiki words this a bit differently than yours, & doesn't specifically call it a {2ndA} 'constitutional right' to keep & carry arms wherever they went. Have you a reputable link?
The majority listed a number of rights that African-Americans would acquire should they have American citizenship:

"It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." 60 U.S. 393, 417

Now, either the majority pulled these rights of American citizens out of its ass, so to speak, or it looked to the text of the Constitution to figure out what rights it protected. The right to enter other states without obstructions is probably based on Article 4 limitations on state power (Or maybe the Dormant Commerce Clause), while the right to "liberty of speech" seems to be sourced in the First Amendment and the only textual support for a right to "keep and carry arms" can be found in the Second Amendment. This is ultimately analysis of Court dicta, but I think your argument or implied argument that these rights, because the Court did not directly cite them to specific protections, were simply court creations is completely flawed. It seems far more likely that the Court cherry picked examples of Constitutional rights of American citizenship, which it considered especially terrifying should they protect African Americans, in order to buttress its central argument that the Founders did not intend to grant US citizenship to them.

Let me add another quote from the 1939 supreme court miller ruling...
Except I acknowledged (or at least thought I did) that the Miller case left an open door for interpretation, and seemed to show an intersection of individual right and community purpose. As the sections I cited previously seemed to hint, the RKBA could reasonably be interpreted to mean that it only protects an individual right to the extent that it protects possession of weapons that would have utility for militia use in the event of a call-up. Your added excerpt doesn't seem to detract from this argument. Hence, sawed-off shotguns, being militarily-useless guns normally used only for criminal purposes, are not protected.

Now, this ruling was UNANIMOUS, 9 - 0, and it contained the above two passages, affirmed by all 9 justices in 1939. Don't you think, if they had indeed thought it an individual RKBA disconnected from militia service (as scalia ruled) at least ONE of the nine justices would'nt've chirped up 'whoa, fellow justices, look how we've worded our rulings, people in future generations are gonna think we intended a militia based Right to Keep & Bear Arms'.
Except that I didn't argue that the individual RKBA was disconnected from militia service, but rather that Miller could reasonably be interpreted to support an individual right which only extended to the degree that it protected and individual right to possess specific weapons which would have a militia purpose in the event of a callup. Did the Justices think this through to the extent you're implying they did? Probably not; 2nd Amendment jurisprudence wasn't exactly a hot field at the time.

Have you a reputable link?
I am purely citing from the text of court cases. I can provide a specific textual reference, if you prefer, for any text I quote.

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Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 05:56 PM

11. The central right identified in Dred Scott

was slave ownership.

Yeah, things change.

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Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 06:43 PM

16. Not quite..

The language in Heller was:

and to use that arm for traditionally lawful purposes, such as self-defense within the home.


I know, that's the current spin on Heller from many talking heads.. morphing 'such as' into 'only'.. but it really isn't so.

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Response to X_Digger (Reply #16)

Fri Jan 18, 2013, 06:52 PM

19. You're right, though central isnt the same as only

You are right that Heller does not say that home defense is the only right, or even explicitly that it is paramount, but a fair reading of the things suggests that individual home defense is specified as presumptively non-controversial.

In practical jurisprudence these things are read a certain way. When Congress writes a law they often say "including but not limited to X, Y and Z."

Technically, X, Y and Z are not treated differently by the law, versus W and V... but they are treated differently.

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Response to cthulu2016 (Reply #19)

Fri Jan 18, 2013, 06:57 PM

20. The court was asked to address one aspect of the right, specifically handguns in the home..

.. for self-defense.

The fact that they ruled that such a right is protected by the second amendment, and that DC's ban on handgun registration falls afoul of it, does not circumscribe the right, nor make it a 'central' purpose.

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Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 07:10 PM

21. IMO, the second ammendment defines a right to arms in defense of one's self.

 

I would say that one's life can be equally threated in their home as it can be outside their home. I fail to see what a public restriction on firearms would accomplish. Would Lanza have been unable to mow down 26 people with a gun taken from his mother's home had there been a prohibition on guns in public?

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Response to cthulu2016 (Original post)

Fri Jan 18, 2013, 07:17 PM

22. The Second Amendment isn't about the right to own a gun

The Roberts court is full of shit and made that crap up.

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Response to cthulu2016 (Original post)

Sat Jan 19, 2013, 08:03 AM

25. April Love 2ndA court case

dairydog: Heller did not reverse 200 years of history. ... Cite a case, please. Find a case, from 1812 or earlier, in which a Court states that the right to keep and bear arms is communal, not individual. Any court case will do (Federal preferred), but I want to see the text. Higher level courts would be preferable.

Prior to 1812 there was yet no real dichotomy, or prior to approx 1830 no offical dichotomy betwwen 'individual' or 'militia based' RKBA, so I can't prove your 'negative', so to speak. I can, of course, cite some federal 2ndA court cases of more recent times, as you suggest, starting with bar room dancer april love vs. sgt pepersack, maryland:

Sept, 1990, April Love tried to purchase a handgun at a shop in Prince George's Co, Maryland. She filled out an application required by state law. All of her answers to the questions posed were true and correct.
--Maryland law gives the police seven days to deny the application; if it does not act, the dealer may legally sell the firearm... {Md police} Corporal .. discovered that Ms. Love had been arrested on four occasions..as a stripper ..been arrested twice for participating in an obscene show and indecent exposure.. battery.. resisting arrest. She was convicted of only one of these crimes--a misdemeanor--though disposition of the charges was not apparent on the computer printout.
... Without further investigation, Pletcher recommended that the application be denied.. Love exhausted state administrative remedies without success, and then sued in state court. She won...Love then filed this suit--alleging violations of substantive due process, a "right to contract," and {2A}-- defendants {Md} moved to dismiss, and the district court granted the motion. Love appeals.


4th circuit, 1994: Citing law review articles, Love argues that she has an individual federal constitutional right to "keep and bear" a handgun, and Maryland may not infringe upon this right. She is wrong on both counts. The Second Amendment does not apply to the states. Presser v. Illinois, (1886); Cruikshank, (1876). Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm.
In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a "reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller (1939).
.. Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right.
The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a "reasonable relationship to the preservation or efficiency of a well-regulated militia."
Love has likewise not identified how her possession of a handgun will preserve or insure the effectiveness of the militia. The judgment is affirmed. AFFIRMED.

http://www.guncite.com/court/fed/47f3d120.html
-------------------------------------------

dairydog: The majority listed a number of rights that African-Americans would acquire should they have American citizenship:

"It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."60U.S.393,417

dairy dog: Now, either the majority pulled these rights of American citizens out of its ass, so to speak, or it looked to the text of the Constitution to figure out what rights it protected.

Or, it possibly combined 'rights' from both the bill of rights, with rights granted by states themselves. If missouri had a state RKBA, that likely would have sufficed I believe, to justify what this supreme court wrote (if not the other 'rights' as well).
Or, as free blacks, they could keep & carry arms with them, as well as join militia. Inclusion, or right, to join militia would've been incongruous with what this supreme court was trying to fearmonger about blacks, so it of course would not've been mentioned by them since it would've been a positive aspect.
This supreme court was obviously trying to fearmonger 'blacks with guns', running around shooting up.

.. By the way, there was no 'right' to carry arms, but to bear arms, which of course you would argue further to bolster your own points. I suspect this supreme court meant that, since blacks would then be in the state militia, they could possibly have a gun, & would not be disallowed from carrying it about, as other militia members could (the 'narrow' i-rkba).
As I said, by the 1830s this dichotomy between 'individual' & 'militia' was taking hold, & existed by the civil war (tho not so brazenly as today), so this supreme court could've leant to that former interpretation, being perhaps mostly from i-rkba states.

dairydog: I think your argument or implied argument that these rights, because the Court did not directly cite them to specific protections, were simply court creations is completely flawed. It seems far more likely that the Court cherry picked examples of Constitutional rights of American citizenship, which it considered especially terrifying should they protect African Americans, in order to buttress its central argument that the Founders did not intend to grant US citizenship to them.

I questioned your posted phrasing of what you just wrote, with the inclusion of, um, period dots (tipotongue) interspersed, which lead to thinking 'out of context'. I asked for a link, you provided improved context, so I'll have to review. In itself it is not conclusive of a rejection of the past history of largely militia RKBA interpretation by higher courts. Some states in early 1800s granted individual rkbas, others clearly militia based.


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Response to jimmy the one (Reply #25)

Sat Jan 19, 2013, 08:43 AM

27. Jos Story & Blackstone

potowmack institute: Thomas M. Cooley's 1884 edition of Blackstone's Commentaries on the Laws of England includes an annotation to the English jurist's comments on the right to bear arms, the annotation stating that "in the United States this right is preserved by express constitutional provisions. But it extends no further than to keep and bear those arms which are suited and proper for the general defense of the community against invasion and oppression." http://www.potowmack.org/lcress.html#note49

Certainly there was no doubt in the mind of Justice Joseph Story {~1830's}, the great constitutional commentator of the period, that the Second Amendment was intended to guarantee "a well-regulated militia."
"The importance of this article will scarcely be doubted by any persons who have duly reflected upon the subject." Why? Because "the militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers."
Citing Blackstone's Commentaries on the Laws of England, Story noted that "the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers." Story's only concern was that Americans had developed an indifference to the militia that he feared would lead to contempt. If that happened, "all the protection intended by this clause of our national bill of rights" would be undermined. "The importance of a well regulated militia would seem so undeniable," argued the Supreme Court justice, that "how it is practicable to keep the people duly armed without some organization, it is difficult to see."

The state and federal courts have seldom wavered from Story's interpretation of the Second Amendment. Thomas M. Cooley's 1884 edition of Blackstone's Commentaries on the Laws of England includes an annotation to the English jurist's comments on the right to bear arms, the annotation stating that "in the United States this right is preserved by express constitutional provisions. But it extends no further than to keep and bear those arms which are suited and proper for the general defense of the community against invasion and oppression." The decision handed down by the New Jersey Supreme Court a century later is typical of what is by now nearly two centuries of constitutional opinion solidly based in the intellectual climate of the eighteenth century: "The Second Amendment, concerning the right of the people to keep and bear arms, was framed in contemplation not of individual rights but of the maintenance of the states' active, organized militias."

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Response to jimmy the one (Reply #25)

Sat Jan 19, 2013, 02:35 PM

29. Miller, 1939 take II

dairydog: And as Dred Scott seemed to show, older justices did think that American citizenship conferred an individual right to keep and bear arms in public.

No they did not. Unless you mean it in militia formation or drill, since 'bear arms' was in a confrontational manner, and justices, no matter their age, would've been loathe to allow people to show up with bayonet attached & cartridge ready with buck & ball inside a musket. They would've had far less objection to simply carrying unloaded untipped muskets about, as an auxilliary 'right'.

Miller shows an intersection of the "militia" and the "people's right to keep and bear arms," and I think the text shows a rather more complicated interaction instead of the simplistic community right argument you're making.

Pls point out exactly which passages in the 1939 miller decision support what you say above, that the 9 justices were interacting with some individual RKBA. I'd like to see what you're talking about.

Miller is particularly relevant since the court seemed to analyze whether Miller individually possessed a right to own a sawed-off shotgun; if the Second Amendment merely protected "state's rights," shouldn't the court simply have dismissed his argument for lack of standing, instead of going into the details of the weapon in question? Rather, the precedent seems to show an individual right, but one which existed for community purposes, and hence the individual right was limited to the extent that it served the stated community purposes.

This is just reiterating the song & dance which the gun lobby fabricated during the past 30 years, to get around the miller decision. That was a difficult task for the gunlobby/nra - getting around miller - since miller had been interpreted as a militia based RKBA, had been used since 1939 in federal courts to substantiate militia based interpretation (ie april love), and leads just about any unbiased reader to believe their interpretation of 2ndA was militia based.

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Response to jimmy the one (Reply #25)

Sat Jan 19, 2013, 03:16 PM

30. cruikshank, presser, lewis

dairydog: SCOTUS cases directly on {2ndA} point are rather sparse; Cruikshank and Miller are the only cases I can think of which directly address questions of the meaning of the Second Amendment, and Cruikshank isn't particularly useful since it's a pre-14th-Amendment-incorporation case which held that the Second Amendment only prevented Federal action.

There were 5 supreme court cases involving 2ndA prior to 2000. Regrettably, all were worded in such fashion that 2ndA zealots have had little problem with 'revising' them to mean what THEY say they meant.
(Utterly ironically & coincidentally, there were actually two of these 5 cases which involved one person named Frank Miller, 1939, and a similarly named Franklin Miller in 1894).

guncite (progun website): SCOTUS case -Cruikshank was the first {2A} case to reach the Supreme Court. .. Among the counts against {Mr} Cruikshank et. al, were charges to deprive two blacks of their First and Second Amendment rights. Regarding the First Amendment charges the court stated: The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States.. It was not, therefore, a right granted to the people by the Constitution. The govt of the {US} when established found it in existence, with the obligation on the part of the States to afford it protection..
... Similarly regarding the Second Amendment violations the court wrote: .. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
The {2ndA} declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national govt, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called..."internal police."


The 1876 SCOTUS was referring to a militia based RKBA when it said 2ndA could not be infringed by congress. .. pro gun efforts have fabricated another song & dance for cruikshank.

SCOTUS case -Presser v. People of Illinois (1886) -- {Presser thought he could parade his own ~400 man 'UNorganized militia' in chicago}: Herman Presser was found guilty of parading a group of armed men without authorization in the state of Illinois. {Presser} claimed Illinois law violated provisions in the Constitution including the Second Amendment. The Court ruled the states have the power to control and regulate military bodies, including drilling and parading activities.
The Court re-affirmed that {2A} applied as a limitation only on the national govt and commented no further about it.


Federal Court case - Lewis v. U.S. (1980) Omnibus 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 .. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.
.. The court upheld Lewis' conviction.. In a footnote the court stated: These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia").
http://www.guncite.com/gc2ndsup.html

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Response to jimmy the one (Reply #30)

Wed Jan 30, 2013, 09:27 PM

31. ally ally in come free

come out come out wherever you are

Hiding?

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