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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsHow the NRA Rewrote the Second Amendment
Twenty-five years later, Burgers 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 barseven in churches.
Many are startled to learn that the U.S. Supreme Court didnt rule that the Second Amendment guarantees an individuals right to own a gun until 2008, when District of Columbia v. Heller struck down the capitals 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? Dont look for answers in dusty law books or the arcane reaches of theory.
So how does legal change happen in America? Weve seen some remarkably successful drives in recent yearsthink 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 Associations 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.
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jmg257
(11,996 posts)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)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)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)"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)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.
https://supreme.justia.com/cases/federal/us/307/174/case.html
merrily
(45,251 posts)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)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)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)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)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)It sets the philosophy behind the text following.
beevul
(12,194 posts)It says:
http://www.billofrights.org/
anoNY42
(670 posts)anoNY42
(670 posts)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)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.
SickOfTheOnePct
(7,290 posts)anoNY42
(670 posts)Eleanors38
(18,318 posts)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.
Hoyt
(54,770 posts)anoNY42
(670 posts)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.
Hoyt
(54,770 posts)hack89
(39,171 posts)there are entire sections of gun culture you are ignoring. Why?
Hoyt
(54,770 posts)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.
hack89
(39,171 posts)Hoyt
(54,770 posts)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)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)planning to take their country back in the future.
hack89
(39,171 posts)you never seem to post pictures of that culture. Why?
loyalsister
(13,390 posts)or were you referring to an alternate specific crime and drug culture?
hack89
(39,171 posts)friendly_iconoclast
(15,333 posts)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)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.
Duckhunter935
(16,974 posts)Hoyt
(54,770 posts)friendly_iconoclast
(15,333 posts)Hoyt
(54,770 posts)friendly_iconoclast
(15,333 posts)And gun prohibitionists wonder why they aren't trusted by many gun owners...
Nevernose
(13,081 posts)X_Digger
(18,585 posts)What a silly assertion.
Hoyt
(54,770 posts)taints your view.
Straw Man
(6,623 posts)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)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.
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anoNY42
(670 posts)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)https://www.law.cornell.edu/supct/html/07-290.ZD.html
hack89
(39,171 posts)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)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)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)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)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)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)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)...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)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)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)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)Gay marriage never was prohibited at the federal level.
So yeah, you really need to follow your own advice.
hack89
(39,171 posts)we know it will never happen so no point in arguing about it.
Major Nikon
(36,827 posts)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)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)So if you want to believe the political winds aren't changing, by all means enjoy that fantasy.
Meanwhile...
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.
hack89
(39,171 posts)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)Major Nikon
(36,827 posts)Previous decisions did not deem the 2nd Amendment as an individual right.
hack89
(39,171 posts)former9thward
(31,987 posts)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)former9thward
(31,987 posts)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).
Major Nikon
(36,827 posts)Eleanors38
(18,318 posts)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.
Marengo
(3,477 posts)X_Digger
(18,585 posts).. 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.
ileus
(15,396 posts)ileus
(15,396 posts)anoNY42
(670 posts)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.
underpants
(182,788 posts)None of the framers were around then.
anoNY42
(670 posts)I said "the framers of that amendment", meaning the 14th, not the 2nd.
Igel
(35,300 posts)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)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)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?'.
hack89
(39,171 posts)You will be hard pressed to find widespread criticism of Heller.
CTyankee
(63,911 posts)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..
friendly_iconoclast
(15,333 posts)Hoyt
(54,770 posts)Marengo
(3,477 posts)friendly_iconoclast
(15,333 posts)friendly_iconoclast
(15,333 posts)friendly_iconoclast
(15,333 posts)underpants
(182,788 posts)K&r
Beartracks
(12,809 posts)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.
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jmg257
(11,996 posts)And people who like guns, typically like gun manufacturers.
For them, its' a win-win.