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Major Nikon

(36,827 posts)
Thu Jun 23, 2016, 11:01 AM Jun 2016

How the NRA Rewrote the Second Amendment

A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.

Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.

So how does legal change happen in America? We’ve seen some remarkably successful drives in recent years—think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association’s long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.
...
http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856
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How the NRA Rewrote the Second Amendment (Original Post) Major Nikon Jun 2016 OP
The USSC in Miller did rule that the 2nd guarantees the right of citizens to arms jmg257 Jun 2016 #1
That's what the 2nd amendment says Major Nikon Jun 2016 #4
Yep - just having that discussion in another thread, about the decision we the people jmg257 Jun 2016 #8
From Miller came the standard of pipoman Jun 2016 #65
Good post. While Miller was reversed by SCOTUS, it was also remanded. Kang Colby Jun 2016 #67
In Heller, Scalia's majority opinion states the militia language is not the "operative" part of the merrily Jun 2016 #80
I don't think one has to be special... beevul Jun 2016 #89
For the reasons stated in my prior post, I don't believe the militia language is "surplusage." merrily Jun 2016 #90
Excellent. Justice Stevens' Heller Dissent is what we'll see when Clinton appoints better Justices. Hoyt Jun 2016 #2
Stevens was wrong on two of those counts: anoNY42 Jun 2016 #9
A preamble serves exactly the function of limiting what comes after it. Gormy Cuss Jun 2016 #11
Indeed. The bill of rights has one. beevul Jun 2016 #13
How exactly does that preamble limit the bill of rights that follows? anoNY42 Jun 2016 #15
"Set[ing] the philosophy" anoNY42 Jun 2016 #14
Not the same, but the preamble was used for a reason. Gormy Cuss Jun 2016 #23
There isn't unfettered ownership of any kind of gun and ammo n/t SickOfTheOnePct Jun 2016 #44
But there also was no formal requirement to join a militia. anoNY42 Jun 2016 #76
The militia clause was the government's stated interest in the RKBA, not a conditioner. Eleanors38 Jun 2016 #62
Not what Justice Stevens said, but you used to have Scania on your side. Hoyt Jun 2016 #71
Not a throw-away anoNY42 Jun 2016 #79
Don't you know, all gun fanatics are professors of Linguistics and History? Hoyt Jun 2016 #17
How come you only show white gun owners? hack89 Jun 2016 #20
Because they make up over 90% of gun owners, and particularly gun fanatics where Hoyt Jun 2016 #26
Are they responsible for 90% of gun violence? nt hack89 Jun 2016 #27
Actually, most gunz on the street started as a "law-abiding" purchase -- then stolen or sold Hoyt Jun 2016 #41
So the people actually doing the killing are blameless? hack89 Jun 2016 #45
Never said they were blameless -- but the guns are part of the problem, not to mention white wingers Hoyt Jun 2016 #48
What about a crime and drug culture that embraces violence and gunz? hack89 Jun 2016 #49
Do you mean the meth industry? loyalsister Jun 2016 #56
Either. nt hack89 Jun 2016 #57
I note you never actually answered hack's original question. So I'll ask it again: friendly_iconoclast Jun 2016 #58
As far as I'm concerned, you and other gunners are a major part of the gun problem in Hoyt Jun 2016 #64
I see you can't answer a simple question, why? Duckhunter935 Jun 2016 #78
Because it's just more white wing gun BS, like "how about Chicago." Hoyt Jun 2016 #81
More likely that an accurate answer wouldn't help your narrative friendly_iconoclast Jun 2016 #83
I will not share in gunners' irrational, and often racist, reason for arming up. Hoyt Jun 2016 #87
But you *will* elide an inconvenient truth, apparently. friendly_iconoclast Jun 2016 #88
Professors of Pedantics is more like it (n/t) Nevernose Jun 2016 #24
I'm out of soda, I'm going to the store. Do stores only sell soda? Am I obligated to only buy soda? X_Digger Jun 2016 #66
Let me guess, you strapped on a gun before going to that store. That irrational need probably Hoyt Jun 2016 #72
Syntax. Straw Man Jun 2016 #74
That's "the people," not "every person." Beartracks Jun 2016 #73
Preamble anoNY42 Jun 2016 #75
My favorite part of the Stevens' dissent: Kang Colby Jun 2016 #68
When in American history was the individual ownership of guns not common? hack89 Jun 2016 #3
What any state did or didn't do just isn't all that relevant to a federal right Major Nikon Jun 2016 #5
We all know the 2A allows strict regulation of guns hack89 Jun 2016 #16
You have it exactly backwards Major Nikon Jun 2016 #18
The Supreme Court disagrees with you hack89 Jun 2016 #19
Not restricting =/ permission Major Nikon Jun 2016 #21
There is no real clarity from the SC prior to 2008 hack89 Jun 2016 #22
The OP explains what the actual history is and where the historical revision comes in Major Nikon Jun 2016 #25
The 2A going away will not be a big deal hack89 Jun 2016 #28
Federal law still trumps state law Major Nikon Jun 2016 #29
Really? hack89 Jun 2016 #34
Federal arrests still continued after states legalized pot Major Nikon Jun 2016 #40
The federal government will never impose nationwide gun control laws. hack89 Jun 2016 #43
The federal government already has imposed nationwide gun control laws Major Nikon Jun 2016 #50
Nonsense hack89 Jun 2016 #52
The far right wing has been steadily gaining ground since 1994. I guess that's just a coincidence. Major Nikon Jun 2016 #53
So you show me that public support oscillates in a narrow range centered on 50% approval hack89 Jun 2016 #55
No, previous decisions did not deem the 2nd amendment a collective right. former9thward Jun 2016 #31
You have it exactly backwards also Major Nikon Jun 2016 #33
The point is they made no firm determination either way. nt hack89 Jun 2016 #35
I guess you missed the OP. former9thward Jun 2016 #37
... Major Nikon Jun 2016 #39
You are printing a commentary by non-lawyer former9thward Jun 2016 #42
And your best attempt to prove him wrong consists of taking a quote out of context Major Nikon Jun 2016 #47
Maybe because everyone assumed the 2nd was an individual right, including the courts... Eleanors38 Jun 2016 #63
Which rulings specifically declared it collective? Marengo Jun 2016 #54
So the same people who protected a 'collective' right at the federal level.. X_Digger Jun 2016 #69
That doesn't count... ileus Jun 2016 #7
People just don't understand, no individuals owned guns before 2008. ileus Jun 2016 #6
Discussion of the second amendment is off the mark, anoNY42 Jun 2016 #10
The 14th Amendment was ratified in 1868 underpants Jun 2016 #61
Reading comprehension anoNY42 Jun 2016 #77
The early cases that found no individual right to own a firearm are not what you'd think. Igel Jun 2016 #12
Heller will be overturned before too long Nevernose Jun 2016 #30
I suspect you are right Major Nikon Jun 2016 #32
No it is not. hack89 Jun 2016 #36
why do I suspect that the gunners have a spy system to find these types of posts to rerun their CTyankee Jun 2016 #38
It would help if nevernose cites some links that shows that *they* know what they're talking about friendly_iconoclast Jun 2016 #59
Excellent. LMAO -- ". . . . .probably went to Liberty University under NRA scholarships." Hoyt Jun 2016 #46
Could you provide some cites or links? Would be interesting reading. Marengo Jun 2016 #51
Aaand sure enough, no cites or links were provided friendly_iconoclast Jun 2016 #84
Nor any evidence that they attended law school, for that matter... friendly_iconoclast Jun 2016 #86
How long have *you* had a J.D., and what area of law do you practice in? friendly_iconoclast Jun 2016 #85
Very excellent read. Thanks underpants Jun 2016 #60
And who benefits? Gun manufacturers!! Beartracks Jun 2016 #70
Without gun manufacturers, people wouldn't be able to buy guns. jmg257 Jun 2016 #82

jmg257

(11,996 posts)
1. The USSC in Miller did rule that the 2nd guarantees the right of citizens to arms
Thu Jun 23, 2016, 11:13 AM
Jun 2016

with reasonable relationship to the preservation/efficiency of militias, so there is that.


Wonder how that would have went if the dead guy was carrying a BAR (and his lawyers showed up at court).

Major Nikon

(36,827 posts)
4. That's what the 2nd amendment says
Thu Jun 23, 2016, 11:29 AM
Jun 2016

But seeing as how militias which existed in 1790 no longer exist today, it's pretty hard to apply that justification even if the gun is suitable for military use.

jmg257

(11,996 posts)
8. Yep - just having that discussion in another thread, about the decision we the people
Thu Jun 23, 2016, 11:38 AM
Jun 2016

made in no longer thinking militias were/are the best security.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=7945848

 

pipoman

(16,038 posts)
65. From Miller came the standard of
Thu Jun 23, 2016, 08:36 PM
Jun 2016

"In common use for lawful purposes" as the standard for infringement of the 2nd amendment. This standard was used by SCOTUS in Heller and Miller and many lower court rulings over the years.

If Miller had been present to demonstrate sawn off shotguns were widely used all over the US at that time for hunting in woodland areas, how would it changed the Miller ruling? In any case, what other one sided ruling do we hang our hats on? I can't think of a single one..

As you point out, Miller was dead and his case was not made by anybody. The only case heard was that of the US government. The justices came up with a fair standard upholding the NFA 1934 and also limiting the NFA to anything which is not "in common use for lawful purposes". Any upheld ban of a semi automatic rifle which has thus far been proposed including the 1994 ban would require q reversal of this 80 year precedent. Every proposal has been either too ambiguous (not defendable) or too specific (easily changed to conform without changing anything).

 

Kang Colby

(1,941 posts)
67. Good post. While Miller was reversed by SCOTUS, it was also remanded.
Thu Jun 23, 2016, 10:16 PM
Jun 2016

In a hypothetical scenario, under the constraints passed to the lower court for further proceedings (which never occurred), had Miller been able to demonstrate that the military had tens of thousands of SBSs in use during WWI, it could have been game over for the NFA.

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.


https://supreme.justia.com/cases/federal/us/307/174/case.html

merrily

(45,251 posts)
80. In Heller, Scalia's majority opinion states the militia language is not the "operative" part of the
Fri Jun 24, 2016, 07:15 AM
Jun 2016

2nd amendment.

https://www.law.cornell.edu/supct/html/07-290.ZO.html

A document so brief set up a new form of government and has served it since 1789. It takes a "special" person like Scalia to decide any of its words are not "operative."

 

beevul

(12,194 posts)
89. I don't think one has to be special...
Sat Jun 25, 2016, 12:49 PM
Jun 2016

I don't think one has to be special, to note which parts of an amendment do what the framers stated they intended to do with the bill of rights in its very own preamble, restrict government:


THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

http://www.billofrights.org/

It seems to me that the framers made it pretty clear without scalia, what the operative part was.

The 'militia' clause, as some call it, was a "because", not an "only when".

merrily

(45,251 posts)
90. For the reasons stated in my prior post, I don't believe the militia language is "surplusage."
Sun Jun 26, 2016, 06:56 AM
Jun 2016

I also don't believe there is any point in our discussing it. Neither of us is going to convince the other.

 

Hoyt

(54,770 posts)
2. Excellent. Justice Stevens' Heller Dissent is what we'll see when Clinton appoints better Justices.
Thu Jun 23, 2016, 11:13 AM
Jun 2016

DISSENT #1: Stevens, joined by Souter, Ginsburg, Breyer

The Stevens dissent rests on four main points of disagreement:
--that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended
--that the "militia" preamble demands the conclusion that the Second Amendment touches on state militia service only
--that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis
--and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.

DISSENT #2: Breyer, joined by Stevens, Souter, Ginsburg

Justice Breyer filed a separate dissenting opinion that, even with an individual-rights view, the DC handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right. The Breyer dissent concludes, "there simply is no untouchable constitutional right to keep loaded handguns in the house in crime-ridden urban areas."


Stevens' Dissent is worth a read unless you are a gunner who can't imagine life without meaningful restrictions on the dang things:

https://www.law.cornell.edu/supct/html/07-290.ZD.html

 

anoNY42

(670 posts)
9. Stevens was wrong on two of those counts:
Thu Jun 23, 2016, 12:13 PM
Jun 2016

1.) The Founders did make the right an individual right: The first clauses uses the word "State" and the second clause uses the words "the People". If the Founders had wanted it to be a state right, they would have used the word "State" in the second clause.

2.) The militia preamble is just that, a preamble. It does not contain any language of limitation that would affect the second clause. If the first clause was supposed to modify the second clause, in Stevens' words the Founders would have made it express.

Now, believing that the right is an individual right does not mean it should not be subject to regulation.

Gormy Cuss

(30,884 posts)
11. A preamble serves exactly the function of limiting what comes after it.
Thu Jun 23, 2016, 12:20 PM
Jun 2016

It sets the philosophy behind the text following.

 

beevul

(12,194 posts)
13. Indeed. The bill of rights has one.
Thu Jun 23, 2016, 12:28 PM
Jun 2016

It says:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution


http://www.billofrights.org/
 

anoNY42

(670 posts)
14. "Set[ing] the philosophy"
Thu Jun 23, 2016, 12:55 PM
Jun 2016

is not the same thing as limiting what comes after. If the Founders had wanted to limit the right to Militias only, they could have been specific. Anyway, this line of argument is mooted by the 14th Amendment, which was clearly intended in part to protect the bearing of arms by southern blacks.

Gormy Cuss

(30,884 posts)
23. Not the same, but the preamble was used for a reason.
Thu Jun 23, 2016, 01:42 PM
Jun 2016

Framing may be a better word than limiting but the preamble certainly set the context and that context was not unfettered ownership of any kind of gun and ammo for any reason. It's a silly to ignore the preamble as if it's a throwaway statement.

 

Eleanors38

(18,318 posts)
62. The militia clause was the government's stated interest in the RKBA, not a conditioner.
Thu Jun 23, 2016, 07:49 PM
Jun 2016

In other words, the government recognized an individual RKBA (all rights in the BOR are individual), and stated its interest in why it should be not infringed (to fulfill its powers under Article 1).

You find similar grammatical structure in some state constitutions in discussing the rights of free speech, press, assembly, etc. No one has ever attempted to hot-wire one of these rights to condition another.

It also must be said that the soon-to-be United States still depended on militia, and the militia clause was attached prominently so states knew militia would continue and the RKBA was not to be infringed.

Notable also is the powerful 14th Amendment which essentially states the states cannot restrict the "immunities and privileges" of citizens of the U.S.. The atmosphere of debate over the 14th was suffused with how to ensure ex-slaves could defend themselves in a future of federal withdrawal. Of course, this aspect of preventing state restriction on individual rights was ignored until the "Civil Rights Era, " blatantly illustrated, if by no other example, when Southern state Jim Crow laws were passed prohibiting blacks from posessing guns. If the "militia clause" was so conditional on the RKBA, it has an unseemly precedent.

 

anoNY42

(670 posts)
79. Not a throw-away
Fri Jun 24, 2016, 06:53 AM
Jun 2016

Just a statement of philosophy. Either way, not a limitation.

Furthermore, individual ownership of guns at the time was beneficial to the militia, since those gun owners would "presumably" have more intimate knowledge of their individual weapons. Finally, it is obvious that the states did not disarm their citizens when the militias were not called up to fight. States generally had (and many still have) their own protections of the (individual) right to have arms.

Anyway, as I have said elsewhere, this discussion is mooted by the 14th Amendment, which was passed in part (explicitly) to prevent the disarming of southern blacks by white vigilantes/governments.

hack89

(39,171 posts)
20. How come you only show white gun owners?
Thu Jun 23, 2016, 01:24 PM
Jun 2016

there are entire sections of gun culture you are ignoring. Why?

 

Hoyt

(54,770 posts)
26. Because they make up over 90% of gun owners, and particularly gun fanatics where
Thu Jun 23, 2016, 01:53 PM
Jun 2016

Last edited Thu Jun 23, 2016, 04:06 PM - Edit history (1)

it's closer to 95%. As I've said repeatedly, I believe racism is behind most gun sales and public toting nowadays

Go to any gun store, show, NRA convention, and yell me what you see. If you are truthful, it will be inordinately white wing, as are random images of those arming up and championing gunz.

 

Hoyt

(54,770 posts)
41. Actually, most gunz on the street started as a "law-abiding" purchase -- then stolen or sold
Thu Jun 23, 2016, 04:11 PM
Jun 2016

with no concern about who got them.

So yes, those white wingers arming up have put gunz in the hands of criminals. Fact is, white folks are arming up because they are largely racists and preparing to kill in a disaster. I still remember the Gungeon regulars posting about the best gunz to shoot fleeing people the last time a hurricane was moving up east coast.

Sorry, that kind of gun crud is reprehensible. You being one of the most reasonable of gunners here, probably know it.

hack89

(39,171 posts)
45. So the people actually doing the killing are blameless?
Thu Jun 23, 2016, 04:17 PM
Jun 2016

and are not active members of the gun culture?

I am not a racist and I own guns. How do I fit into your world view?

 

Hoyt

(54,770 posts)
48. Never said they were blameless -- but the guns are part of the problem, not to mention white wingers
Thu Jun 23, 2016, 04:23 PM
Jun 2016

planning to take their country back in the future.

hack89

(39,171 posts)
49. What about a crime and drug culture that embraces violence and gunz?
Thu Jun 23, 2016, 04:25 PM
Jun 2016

you never seem to post pictures of that culture. Why?

loyalsister

(13,390 posts)
56. Do you mean the meth industry?
Thu Jun 23, 2016, 05:03 PM
Jun 2016

or were you referring to an alternate specific crime and drug culture?

 

friendly_iconoclast

(15,333 posts)
58. I note you never actually answered hack's original question. So I'll ask it again:
Thu Jun 23, 2016, 07:10 PM
Jun 2016

You claimed whites are over 90% of gun owners:

http://www.democraticunderground.com/10027945747#post26

And you were asked if they were responsible for 90% of gun violence.

Are they?

 

Hoyt

(54,770 posts)
64. As far as I'm concerned, you and other gunners are a major part of the gun problem in
Thu Jun 23, 2016, 08:08 PM
Jun 2016

this country. Without conspicuous gun consumers, and gun supporters, we'd be much better off. Too many friggin Zimmermans walking around in public. The NRA membership, and gun fanciers too cheap to pay dues but who still vote for gun politics, are responsible for the problem.

 

friendly_iconoclast

(15,333 posts)
88. But you *will* elide an inconvenient truth, apparently.
Sat Jun 25, 2016, 12:32 PM
Jun 2016

And gun prohibitionists wonder why they aren't trusted by many gun owners...

X_Digger

(18,585 posts)
66. I'm out of soda, I'm going to the store. Do stores only sell soda? Am I obligated to only buy soda?
Thu Jun 23, 2016, 08:49 PM
Jun 2016

What a silly assertion.

 

Hoyt

(54,770 posts)
72. Let me guess, you strapped on a gun before going to that store. That irrational need probably
Thu Jun 23, 2016, 11:54 PM
Jun 2016

taints your view.

Straw Man

(6,623 posts)
74. Syntax.
Fri Jun 24, 2016, 02:07 AM
Jun 2016
A preamble serves exactly the function of limiting what comes after it.

It sets the philosophy behind the text following.

Could you explain how you came to the conclusion that "the philosophy behind" something serves as a limitation on it? I beg to differ. Let's try an analogous sentence:

An educated electorate being fundamental to a strong democracy, the promotion of literacy must be given the highest priority.

Do you read that as meaning that only voters should be taught to read? I don't. The prefatory clause gives the rationale; it doesn't limit the class to which the main clause applies.

Beartracks

(12,809 posts)
73. That's "the people," not "every person."
Fri Jun 24, 2016, 12:08 AM
Jun 2016

Even if certain individuals are barred from buying or owning guns, or certain guns are banned from individual ownership, the right of "the people" to "bear arms" is still not infringed. I think regulation is necessary, since it's clear that the right wing's slavish interpretation of the amendment is endangering the "security of <the> free state" as Americans keep killing Americans.

By the way, "being necessary for the security of a free state" is part of the preamble that you suggest does not affect the second part of the amendment. It wouldn't be there as a preamble, however, if it had no bearing; it sets up the reason for why the amendment is necessary.

============================

 

anoNY42

(670 posts)
75. Preamble
Fri Jun 24, 2016, 06:32 AM
Jun 2016

It's not that the "militia" language has no bearing, it's that it has no limitation on the second clause. For instance, the first amendment states that Congress can make no law abridging the right of the people to peaceably assemble, "and to petition the Government for a redress of grievances." However, this does not mean that the right to assemble is only valid when used to petition the government. Assembly is used to protest individuals or NGOs as well...

 

Kang Colby

(1,941 posts)
68. My favorite part of the Stevens' dissent:
Thu Jun 23, 2016, 10:27 PM
Jun 2016
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals.


https://www.law.cornell.edu/supct/html/07-290.ZD.html

hack89

(39,171 posts)
3. When in American history was the individual ownership of guns not common?
Thu Jun 23, 2016, 11:24 AM
Jun 2016

when did any state tightly restrict gun ownership to militia service? When was this golden age when the typical American felt that the 2A did not mean individual ownership of guns?

The only thing being rewritten is American history.

Major Nikon

(36,827 posts)
5. What any state did or didn't do just isn't all that relevant to a federal right
Thu Jun 23, 2016, 11:35 AM
Jun 2016

If you really want to learn about not only American history, but English law which predates it, there have been numerous restrictions on ownership and carry of all types of weapons, not just guns. Numerous states passed legislation banning concealed carry of weapons, but the NRA and it's apologists like to ignore that history.

hack89

(39,171 posts)
16. We all know the 2A allows strict regulation of guns
Thu Jun 23, 2016, 12:56 PM
Jun 2016

the issue is whether it is an individual right or not. Most states appeared to historically view it as an individual right.

Major Nikon

(36,827 posts)
18. You have it exactly backwards
Thu Jun 23, 2016, 01:05 PM
Jun 2016

The 2nd amendment neither allows for strict regulation of guns, nor does it apply any restriction on any state from conferring any individual rights.

The question is whether it prevents the states and federal government from regulating individual gun ownership and use.

hack89

(39,171 posts)
19. The Supreme Court disagrees with you
Thu Jun 23, 2016, 01:22 PM
Jun 2016

in Heller they explicitly stated that the 2A permits strict regulation of guns. AWBs, registration, licensing - all perfectly constitutional. The only explicit right you have now is the right to own a handgun in your home for self defense. Everything else is fair game.

States have always had the ability to confer rights - that is why so many state constitutions protect the right to keep and bear arms. The point is that historically and culturally, Americans have always felt that they have had the individual right to keep guns. This militia argument only came to the fore when certain groups decided they want to ban guns and went looking for a legal justification.

Major Nikon

(36,827 posts)
21. Not restricting =/ permission
Thu Jun 23, 2016, 01:33 PM
Jun 2016

Guns have been banned in numerous instances throughout the history of the US and the USSC specifically rejected any attempt to confer an individual right until 2008.

hack89

(39,171 posts)
22. There is no real clarity from the SC prior to 2008
Thu Jun 23, 2016, 01:38 PM
Jun 2016

the fact that both sides claim that history support them bears that out.

Heller says that banning guns is perfectly fine. The 2A does not say you can't ban certain guns. It says you can't ban all guns.

Major Nikon

(36,827 posts)
25. The OP explains what the actual history is and where the historical revision comes in
Thu Jun 23, 2016, 01:53 PM
Jun 2016

...which is what Scalia employed in his 5-4 decision which was predictably split down ideological lines and defied his own legal philosophy. With the real possibility of the conservative wing of the SCOTUS being reduced to 2 in the near future, I don't think the NRA can bank on the inevitable subsequent majority opinions going their way.

hack89

(39,171 posts)
28. The 2A going away will not be a big deal
Thu Jun 23, 2016, 01:56 PM
Jun 2016

the real war for gun rights was fought and won at the state level. The 2A could disappear tomorrow and it would have zero impact on me.

Major Nikon

(36,827 posts)
29. Federal law still trumps state law
Thu Jun 23, 2016, 02:01 PM
Jun 2016

Congress could pass a law that prevents states from overriding local gun bans. Congress could also pass laws banning or restricting certain types of guns and the states couldn't do much about it.

hack89

(39,171 posts)
34. Really?
Thu Jun 23, 2016, 02:31 PM
Jun 2016

So Colorado can't legalize pot? Massachusetts couldn't legalize gay marriage?

States have sovereign powers - the federal government cannot pass a law preventing states from overriding local laws. By no stretch of the imagination does the federal government have that power. The Federal government cannot ban guns - it can ban the import, manufacture and interstate sales of certain guns. But it has no power to ban the possession of guns within a state.

You really need to brush up on your civics.

Major Nikon

(36,827 posts)
40. Federal arrests still continued after states legalized pot
Thu Jun 23, 2016, 04:10 PM
Jun 2016

Gay marriage never was prohibited at the federal level.

So yeah, you really need to follow your own advice.

hack89

(39,171 posts)
43. The federal government will never impose nationwide gun control laws.
Thu Jun 23, 2016, 04:15 PM
Jun 2016

we know it will never happen so no point in arguing about it.

Major Nikon

(36,827 posts)
50. The federal government already has imposed nationwide gun control laws
Thu Jun 23, 2016, 04:29 PM
Jun 2016

So it's kinda silly to claim it never will happen again, especially when we are on the precipice of significant political change.

hack89

(39,171 posts)
52. Nonsense
Thu Jun 23, 2016, 04:39 PM
Jun 2016

there is not the political support for it. 1994 was the high point of gun control in America - it has been steadily losing ground ever since. We are not on the precipice of a significant political change - Hillary will continue the policies of Obama. Like Obama, she will turn out to be good for gun owners. Why do you think I am willing to vote for her?

Major Nikon

(36,827 posts)
53. The far right wing has been steadily gaining ground since 1994. I guess that's just a coincidence.
Thu Jun 23, 2016, 04:48 PM
Jun 2016

So if you want to believe the political winds aren't changing, by all means enjoy that fantasy.

Meanwhile...

Hillary has a record of advocating for commonsense approaches to reduce gun violence:

As first lady, she co-convened a White House Summit on School Violence after the Columbine tragedy. She also strongly defended the Brady Bill, which instituted federal background checks on some gun sales.

As senator, she co-sponsored and voted for legislation to close the gun show loophole by requiring criminal background checks on all transactions taking place at events that sell firearms.

She voted against the dangerous immunity protections Congress provided gun dealers and manufacturers that prevent victims of gun violence from holding negligent manufacturers and dealers accountable.

She also co-sponsored and voted for legislation to extend and reinstate the assault weapons ban.
http://www.hillaryclinton.com/issues/gun-violence-prevention/



hack89

(39,171 posts)
55. So you show me that public support oscillates in a narrow range centered on 50% approval
Thu Jun 23, 2016, 05:02 PM
Jun 2016

and expect me to believe that a drastic shift is upon us. There have been two digit swings in both directions in the past three years.

former9thward

(31,987 posts)
31. No, previous decisions did not deem the 2nd amendment a collective right.
Thu Jun 23, 2016, 02:04 PM
Jun 2016
Heller was the first case which was on point to the issue. But even if the SC changes their view in the future it will matter little, much to the dismay of the people who want to strip away rights. The federal government is not going to pass laws which significantly limit rights and most states will not do it either.

Major Nikon

(36,827 posts)
33. You have it exactly backwards also
Thu Jun 23, 2016, 02:10 PM
Jun 2016

Previous decisions did not deem the 2nd Amendment as an individual right.

former9thward

(31,987 posts)
37. I guess you missed the OP.
Thu Jun 23, 2016, 03:16 PM
Jun 2016
In fact, every other time the court had ruled previously, it had ruled otherwise.

Previous decisions have not ruled otherwise. They did not rule on the issue at all. Previous 2nd amendment related decisions (which have been very few over the 200 plus years) did not rule on that issue.

Major Nikon

(36,827 posts)
39. ...
Thu Jun 23, 2016, 04:04 PM
Jun 2016
Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise.


former9thward

(31,987 posts)
42. You are printing a commentary by non-lawyer
Thu Jun 23, 2016, 04:11 PM
Jun 2016

in a political blog as if it is the 10 commandments written in stone. It simply is not true (which is why they cite zero cases to back them up).

 

Eleanors38

(18,318 posts)
63. Maybe because everyone assumed the 2nd was an individual right, including the courts...
Thu Jun 23, 2016, 08:05 PM
Jun 2016

There have been very few SCOTUS cases dealing with the Second, after all. In fact, the view that 2A was "collective" or subject to massive infringement seems to have been quite recent -- except, of course, where Jim Crow laws were in force. So, finally, after a few decades of pushing the "collectivist" or "conditioned-by-militia service" view, the court finally said what was obvious: The right is individual and not conditioned.

Note:. The Miller decision was made without Miller being present, and Miller was dead.

X_Digger

(18,585 posts)
69. So the same people who protected a 'collective' right at the federal level..
Thu Jun 23, 2016, 11:04 PM
Jun 2016

.. went right back to their states and codified in state constitutions protection of an 'individual' right? e.g. See all the 'in defence of themselves' (sic) language in various state constitutions-- some even *before* the bill of rights.

That's kinda dumb, to think that they protected a right one way in one context, and totally different in another.

Given the philosophy of the enlightenment, it's absolutely ludicrous. Read some Locke, Rousseau.

 

anoNY42

(670 posts)
10. Discussion of the second amendment is off the mark,
Thu Jun 23, 2016, 12:16 PM
Jun 2016

We should really be discussing the 14th amendment, which was passed in part in order to prevent the disarming of southern black populations by white vigilantes/governments. Even if the 2nd Amendment only involved a State right to keep a militia, the legislative history and debates surrounding the 14th Amendment make it clear that the framers of that amendment saw the right as individual.

Igel

(35,300 posts)
12. The early cases that found no individual right to own a firearm are not what you'd think.
Thu Jun 23, 2016, 12:26 PM
Jun 2016

They found that there was a restriction at the federal level against restricting (unduly, one would suppose) firearm ownership. That is, it was an individual right. This wasn't the main finding, however, and wasn't precedent. It led to the decision, which required one more bit of detail:

States were not bound by the 2nd amendment.

This is the crux of the matter in the 19th century. That issue has been firmly re-settled in the last century in all other ways: The Bill of Rights is binding upon the individual states, that's how the 14th amendment has been stretched and interpreted over the years. That's the basis for a lot of law that liberals and progressives have pushed for--due process, civil rights, etc. If the US Constitution doesn't restrict the States, as was originally the case, then there's no basis for a lot of court decisions that were incorporated out of necessity in law. Is there a good reason for having that particular amendment *not* subject to that interpretation of the 14th amendment, besides "I don't like that"?

It was pointed out throughout the '80s and '90s as gun control legislation was being discussed that for well over 100 years there was no suitable federal precedent. In 1939, the first SCOTUS decision in the 20th century that dealt with the 2A, a shotgun was at issue, and it wasn't clear that the "militia" clause had shotguns as part of the ordnance. Otherwise, SCOTUS kept dodging the issue and let lower courts vary. However, the limits that were being placed on firearms weren't usually that severe, and really severe limits weren't in the works.

However, that case makes a weak precedent for stare decisis.

Appealing to stare decisis is, in any event, a vexed strategy for a liberal judge because many of the most celebrated SCOTUS decisions--civil rights, segregation, abortion, equal rights, etc., etc.--have brutally violated stare decisis. Judges discount stare decisis until it's a decision that they like, then it's suddenly inviolate. Judges are people, too.

Nevernose

(13,081 posts)
30. Heller will be overturned before too long
Thu Jun 23, 2016, 02:03 PM
Jun 2016

It's held up in law schools, even by conservative professors, as an example of bad decisions that are destined to be overturned. It's mentioned in the same breath as Bush v Gore, the WWII internment camp ruling, the ruling where black train conductors could be paid less because they were only 3/5s of a person. Plessy v Ferguson is often held up as a decision which, while morally and objectively wrong, at least is based on some sort of logic.

Heller just twists and tortures the law, precedent, the English language, and common sense (as well as everything Scalia ever wrote about parsing language, original intent, precedent, or anything else). Heller was decided by one of the most activist supreme judiciaries of all time.

I'm sure that there are attorneys who would disagree with my assertion. Most of them probably went to Liberty University under an NRA scholarships, or are well-meaning Internet people who understand Heller based on said Liberty University's nutbaggery.

Sometimes I come to DU to debate and discuss. With this post, I just came to rant and vent. Don't bother arguing with me, because this isn't the one I'm going to engage on.

Major Nikon

(36,827 posts)
32. I suspect you are right
Thu Jun 23, 2016, 02:08 PM
Jun 2016

Unless there is a god who likes orange bigots, an overwhelming liberal court makeup is inevitable. Once that happens we will start to see all sorts of fucked up 5-4 decisions going straight down the shitter, and subsequently delegated to the annals of jurisprudence as prime examples of 'What the fuck were they thinking?'.

CTyankee

(63,911 posts)
38. why do I suspect that the gunners have a spy system to find these types of posts to rerun their
Thu Jun 23, 2016, 03:56 PM
Jun 2016

their constutional arguments telling us what the Framers "actually" meant when it is all their own gunner "theology'? It's like being in an unreal existence and they have to pretend they know what they are talking about..

Beartracks

(12,809 posts)
70. And who benefits? Gun manufacturers!!
Thu Jun 23, 2016, 11:50 PM
Jun 2016

The NRA does not care about you, America. It really doesn't.

They don't represent all those law-abiding, good-guy, gun owners. Not really. They represent the manufacturers and sellers of guns. It is a business. An industry. It's as valid as the Kardashians, foisted on America to sell media and magazines.

==============================

jmg257

(11,996 posts)
82. Without gun manufacturers, people wouldn't be able to buy guns.
Fri Jun 24, 2016, 09:57 AM
Jun 2016

And people who like guns, typically like gun manufacturers.

For them, its' a win-win.

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