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Sat Feb 8, 2014, 11:18 AM

 

Supreme Court to weigh what it means to have a right to “bear” guns

The statement at issue:

There is “a growing line of court of appeals decisions that, while stopping short of holding that there is no Second Amendment right outside the home, consistently reach the same result by deeming any right to bear arms in public to be, at best, outside the Second Amendment’s ‘core’ and then balancing it away under an anemic form of intermediate scrutiny.”

– Charles J. Cooper, a Washington, D.C., attorney for the National Rifle Association, in a brief filed at the Supreme Court on Monday, urging the Justices to strike down a law that bans minors from carrying a handgun in public, beyond the home.
We checked the Constitution and...

The Second Amendment, at its core, spells out not one, but two, rights when it protects “the right of the people.” There is a right to “keep” a gun, there is a right, to “bear” a gun. There is an “and” between the two in the text, so that might well be taken as a significant indication that these are separate rights.

The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home. But it has refused repeatedly since then to take on the question of whether that right exists also outside the home. If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.

http://www.philly.com/philly/news/politics/Supreme_Court_to_weigh_what_it_means_to_have_a_right_to_bear_guns.html

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Arrow 20 replies Author Time Post
Reply Supreme Court to weigh what it means to have a right to “bear” guns (Original post)
SecularMotion Feb 2014 OP
discntnt_irny_srcsm Feb 2014 #1
TreasonousBastard Feb 2014 #2
NYC_SKP Feb 2014 #3
TreasonousBastard Feb 2014 #4
NYC_SKP Feb 2014 #5
TreasonousBastard Feb 2014 #6
Abq_Sarah Feb 2014 #13
Nuclear Unicorn Feb 2014 #18
AtheistCrusader Feb 2014 #20
spin Feb 2014 #15
TreasonousBastard Feb 2014 #16
spin Feb 2014 #17
ileus Feb 2014 #7
Surf Fishing Guru Feb 2014 #8
gejohnston Feb 2014 #9
Surf Fishing Guru Feb 2014 #10
gejohnston Feb 2014 #11
Glenn Vardy Feb 2014 #12
petronius Feb 2014 #14
Nuclear Unicorn Feb 2014 #19

Response to SecularMotion (Original post)

Sat Feb 8, 2014, 11:36 AM

1. Should be interesting

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Response to SecularMotion (Original post)

Sat Feb 8, 2014, 12:38 PM

2. If the Framers were alive today...

and saw the possibility of everyone packing while stuck in traffic, or on a rush-hour NYC subway, or just in a long line at Wal-Mart and then arguing over the price of something...

Well, just imagine what these guys who were thinking in terms of farmer militias and muzzle-loading cannons and long guns would think now.




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Response to TreasonousBastard (Reply #2)

Sat Feb 8, 2014, 01:07 PM

3. They'd think "how awful that they live with this traffic, crowded rush hours, and long lines at WM.

 

Honestly, people accept THESE truly inhumane and relatively new conditions as "normal" but question whether or not the 2A has any utility in modern times.

The truth is that traffic was once not nearly as bad, road rage wasn't even heard of, and shopping was a pleasant task.

The world is getting fucked up, take away the guns and the traffic and congestion and road-rage and Wal-Mart are still there.

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Response to NYC_SKP (Reply #3)

Sat Feb 8, 2014, 01:10 PM

4. Avoiding the question doesn't...

make the thought of walking down the street amid thousands of assholes packing any easier.

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Response to TreasonousBastard (Reply #4)

Sat Feb 8, 2014, 01:15 PM

5. It's about point of view. You seem to suggest that they would have second thoughts about 2A

 

And I'm suggesting that while they might think differently of it, or might not, their immediate thoughts and concerns would be about how crazy our lives are today.

You might maintain that 2A only applied back in the day, that they would share your sensibilities.

I might maintain that given the crime and overbearing government we have today those same founding framers might have doubled down on the Second Amendment.

I don't see how there's any avoiding a question here.

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Response to NYC_SKP (Reply #5)

Sat Feb 8, 2014, 01:37 PM

6. Meh. The Framers just ran a successful revolution...

and were being faced with small rebellions around the new country. I suggest their views of firearms would be colored less by our modern crowds as by the destruction modern weapons can cause.

Can't think of any modern developed country that allows the citizenry to walk around armed. Great Britain, where the "keep and bear arms" language originated, is particularly picky about it. That language, btw, originally came about when the Crown tried to disarm Protestant citizens whilst heavily arming Catholics during several of their revolutionary periods. It meant that only Parliament, not the King, could regulate personal arms, and exactly how this affected the amendment writers as they borrowed the language is unknown. This problem is currently moot in GB, and was always moot here.

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Response to TreasonousBastard (Reply #6)

Fri Feb 14, 2014, 01:02 AM

13. I see what you're doing...

Can't think of any modern developed country that allows the citizenry


And that's the difference, isn't it?

We didn't form a government to rule us. We formed a government that was designed to protect certain rights from government interference.

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Response to TreasonousBastard (Reply #6)

Thu Feb 20, 2014, 10:54 AM

18. "Can't think of any modern developed country"

Like the Ukraine.

Great Britain, where the "keep and bear arms" language originated


Has its own soldiers being beheaded in the street because thy have rendered themselves neutered and defenseless.

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Response to TreasonousBastard (Reply #4)

Thu Feb 20, 2014, 11:51 AM

20. Their contemporary firepower WAS awesome to them.

Also, there were things like the Girandoni Repeating Rifle at the time the 2nd was ratified.

Meriwether Lewis carried one on the Lewis and Clark expedition. 20-shot compressed air rifle. Semi-auto. Kill a deer no problem, let alone a human.

The Austrians stopped using them not because they didn't work, but rather for cost reasons. The training that a soldier require to use it was expensive compared to a musket. Also the weapon itself, and maintenance were expensive. Compressed air tanks out of beaten/riveted sheets of metal... ugh.

But it did work. Modern volumes of fire did exist then, they just didn't use black powder as propellant.

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Response to TreasonousBastard (Reply #2)

Sun Feb 16, 2014, 07:52 PM

15. I disagree. ...

If you fead the quotes by the Founding Fathers you may better understand their feelings on gun control. In my opinion they would be surprised by the advances in firearm technology but still supported the right to keep and bear arms. However they might have supported reasonable gun control laws such as we have in many states today.



"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
- Thomas Jefferson (quoting 18th century criminologist Cesare Beccaria)

"Arms in the hands of citizens may be used at individual discretion in private self defense."
- John Adams

"... arms ... discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property.... Horrid mischief would ensue were (the law-abiding) deprived the use of them."
- Thomas Paine


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Response to spin (Reply #15)

Sun Feb 16, 2014, 08:03 PM

16. A reasonable view, since we'll never know...

After all, Jefferson's nemesis was killed in a duel.

But, I can't help but specualte about their thoughts of their agrarian society evolving into the cities and suburbs of today with such awesome firepower at the ready.

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Response to TreasonousBastard (Reply #16)

Sun Feb 16, 2014, 09:23 PM

17. It's hard to imagine what a person who lived in those times ...

would feel if he were suddenly transported to our times.

Undoubtedly he would be amazed if not overwhelmed by our technology.

As I type this I am watching ice skating on the Winter Olympics in color on my widescreen TV.

Imagine what Ben Franklin would say if were sitting in my room. He was undoubtedly the most inventive member of the Founders. He experiment with electricity and coined many of the terms we use today such as; battery, charge, condenser, conductor, positively, negatively and armature.

Still he would be amazed at my Ipad and my cell phone. He might notice that I am wearing bifocal glasses and mention that he invented them.

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Response to SecularMotion (Original post)

Sat Feb 8, 2014, 02:15 PM

7. Unless they somehow decide your life isn't worth as much outside the home

as it is on your own property, then it should be an easy win for human rights.

On the other hand maybe they are victim oriented, and decide our best defense it to die.

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Response to SecularMotion (Original post)

Sun Feb 9, 2014, 07:47 AM

8. As if the Court hasn't already spoken on this????

In Cruikshank, the Court examined multiple count indictments of KKK members for violating various rights of two Freedmen in Louisiana. The KKK (private citizens, not state actors) disarmed, kidnapped and lynched them.

The Court considered the indictment for the violation of the Freedmen's right to arms and quoted it (emphasis added):



"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 Second Amendment 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. . . . "



Ten years later the Court decided Presser v Illinois which challenged a state law that demanded that private citizens first obtain a permit before marching / mustering while armed.

The Court revisited its reasoning in Cruikshank for the issue of applying the 2nd to a state law, quoting from it but substituting the Cruikshank case specific "bearing arms for a lawful purpose" with the simple language of the 2nd Amendment (emphasis added):



"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.

But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state. It was so held by this Court in the case of United States v. Cruikshank, in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms

"is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment 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. . . . "" (internal citation removed)



Can anyone make the argument that the Court did not equate the basic action of "bearing arms for a lawful purpose", (for self-defense outside the home by two former slaves in 1873 Louisiana), with the right secured by the federal 2nd Amendment?

The issue here seems to be lower courts over reading Heller, misconstructing Heller's "in the home" inspection of the DC statutes into a restriction of the right to arms.

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Response to Surf Fishing Guru (Reply #8)

Sun Feb 9, 2014, 10:38 AM

9. McDonald overturned it

and incorporated the 2A.

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Response to gejohnston (Reply #9)

Sun Feb 9, 2014, 11:57 AM

10. Thanks but . . .

My comments were offered only regarding the "bearing arms for lawful purpose" = "the right of the people to keep and bear arms" principle.

As an aside, do you really believe the actual holding of Presser was overturned in McDonald?

Did McDonald revisit Presser's holding that the right to arms was not injured by the statute forbidding private citizens to drill or parade with arms in any city or town of Illinois without license?

More to the point, did McDonald reverse the Presser Court and declare that the right of citizens to voluntarily associate together as a military company or organization and drill or parade with arms IS an attribute of national citizenship and that laws prohibiting such action are invalid?

The inapplicability of the 2nd on the state was a secondary argument, not the holding of Presser.

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Response to Surf Fishing Guru (Reply #10)

Sun Feb 9, 2014, 12:13 PM

11. The basic point with Presser

like many BoR cases back then, what that the BoR only limited the federal government, but not the states since at least Barron v Baltimore in 1833. In Cruikshank, the court made the same decision about the first amendment, the right to assembly.
Cruikshank was a lot more than a 2A case. It also made any of the civil rights laws of that time unenforceable. Civil rights lawyers have chipped away at Cruikshank since the 1930s, McDonald simply finished it off. That is why Heller was a 2A case, McDonald was really a 14A case.
Wikipedia quotes Cruikshank's holding as:
The First Amendment right to assembly was not intended to limit the powers of the State governments in respect to their own citizens and the Second Amendment has no other effect than to restrict the powers of the national government.

Presser simply said states can ban private armies.
http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

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Response to Surf Fishing Guru (Reply #8)

Sun Feb 9, 2014, 08:46 PM

12. Shall not be infringed BY CONGRESS


"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 Second Amendment 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. . . . "


State or local laws are NOT written by the U.S. Congress and do NOT violate the Second Amendment.

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Response to Glenn Vardy (Reply #12)

Fri Feb 14, 2014, 01:43 AM

14. McDonald v. Chicago (2010) incorporated 2A to the states and their subdivisions

It does not apply to Congress only...

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Response to Glenn Vardy (Reply #12)

Thu Feb 20, 2014, 11:06 AM

19. Um

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Are you suggesting state and local governments CAN establish religion or prohibit the free exercise thereof or abridge the freedom of speech or the press or the right of the people to peaceably assemble or petition the government?

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