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krispos42

(49,445 posts)
Tue Jan 4, 2022, 12:09 AM Jan 2022

35 years of gun sales, showing gun control's unintended consequences

This discussion thread is pinned.

Last edited Sat Jan 8, 2022, 01:56 PM - Edit history (2)

Hello everybody,

I spent some time over the long holiday weekend updating this post from 2017 since we've gone through one presidential election since then.

So to keep things apples-to-apples, I've put these graphs together in a per-capita format. Sales numbers are per 1,000 people and homicide rates are per 100,000.

Just in case portions of this post trigger an alert, I'm going to post the relevant section of the 2020 platform of the Democratic Party:

Democrats will enact universal background checks, end online sales of guns and ammunition, close dangerous loopholes that currently allow stalkers, abusive partners, and some individuals convicted of assault or battery to buy and possess firearms, and adequately fund the federal background check system. We will close the “Charleston loophole” and prevent individuals who have been convicted of hate crimes from possessing firearms. Democrats will ban the manufacture and sale of assault weapons and high capacity magazines. We will incentivize states to enact licensing requirements for owning firearms and extreme risk protection order laws that allow courts to temporarily remove guns from the possession of those who are a danger to themselves or others. We will pass legislation requiring that guns be safely stored in homes. And Democrats believe that gun companies should be held responsible for their products, just like any other business, and will prioritize repealing the law that shields gun manufacturers from civil liability.

https://democrats.org/where-we-stand/party-platform/healing-the-soul-of-america/


And the party formally known as the Republican Party and is now just the Trump/Qanon Party:

The Second Amendment:
Our Right to Keep and Bear Arms

We uphold the right of individuals to keep and bear arms, a natural inalienable right that predates the Constitution and is secured by the Second Amendment. Lawful gun ownership enables Americans to exercise their God-given right of self-defense for the safety of their homes, their loved ones, and their communities.

We salute the Republican Congress for defending the right to keep and bear arms by preventing the President from installing a new liberal majority on the Supreme Court. The confirmation to the Court of additional anti-gun justices would eviscerate the Second Amendment’s fundamental protections. Already, local officials in the nation’s capital and elsewhere are defying the Court’s decisions upholding an individual right to bear arms as affirmed by the Supreme Court in Heller and McDonald. We support firearm reciprocity legislation to recognize the right of law-abiding Americans to carry firearms to protect themselves and their families in all 50 states. We support constitutional carry statutes and salute the states that have passed them. We oppose ill-conceived laws that would restrict magazine capacity or ban the sale of the most popular and common modern rifle. We also oppose any effort to deprive individuals of their right to keep and bear arms without due process of law.

We condemn frivolous lawsuits against gun manufacturers and the current Administration’s illegal harassment of firearm dealers. We oppose federal licensing or registration of law-abiding gun owners, registration of ammunition, and restoration of the ill-fated Clinton gun ban. We call for a thorough investigation — by a new Republican administration — of the deadly “Fast and Furious” operation perpetrated by Department of Justice officials who approved and allowed illegal sales of guns to known violent criminals.

https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL%5B1%5D-ben_1468872234.pdf


▼ First we have total gun sales per capita. It's pretty simple. The BATFE keep tracks of all the guns made by firearms makers (excluding, of course, guns made privately) as well as all firearms imports and exports. So by adding up all the guns made domestically and all the guns imported and then subtracting the exported guns, we can arrive at the total numbers. As you can see, sales of guns per capita have more than doubled since 1986. Note that gun sales went up about 25% from 2008 as the pro-gun-control candidate Obama beat McCain decisively. Sales slowed slightly as the economy cratered, then picked up as high-profile shootings and gun-control proposals made headlines even as the homicide rate continued to decline. In fact, 2013 was a record year for per-capita firearms sales, over twice the number of sales as 2008. Then in 2016, we sales jump by 25% from 2015 as the pro-gun-control candidate Clinton secures the Democratic primary and looks like a winner in the 2016 presidential election over Fat Donnie. An October Surprise from FBI director Comey throws the election to the Fanta Menace despite losing the popular vote by some 3 million. Gun sales declined as the pro-gun party secures the presidency and both houses of Congress, and fall even further as Donnie Two-Scoops and McConnell put a conservative justice in a seat stolen from Obama, then seat another justice after Kennedy. The GQP holds the Senate after the 2018 midterms, ensuring no threat of gun-control laws being passed, and sales continue to decline.




▼ Second, we have the same data but only for shotgun sales. As you can see, they remain largely flat on a per-capita basis. Shotguns are NOT where the action is.




▼ Third, we have the same date but only for rifles. We have a fairly large bump around 1991-1993; this was after California passed its own ban on "assault weapons", followed shortly by New Jersey and Connecticut. The Federal ban was passed in 1993 and took effect in 1994. Rifles fall back to "normal" levels, then start to climb again as the Dubya presidency comes to a close and Obama takes office. Again there's a bit of a cratering during the Great Recession, then proceed to double over 4 years. Sales remain fairly high until Clinton loses to Dolt45 in 2016, at which point, as previously mentioned, gun sales tumble as the prospect of gun-control laws fade into the distance.




▼ Fourth, we have a similar story with handguns. As states increasingly went to either permitless carry or went to shall-issue pistol permitting, sales increased. This graph is less affected by threats of bans on "assault weapons", as very few handguns are "assault weapons" and the demand for "assault weapon" handguns is virtually nil.






▼ Fifth, we have a chart with all three types of gun sales on it for comparison. Just for convenience.




▼ Sixth, we have the homicide rate with various methods of homicide. This is a little harder to parse, as there is an increasing percentage of "Firearm, type not stated" over time. I don't know why this is. But we can see the single biggest tool used in homicide is the handgun, while rifles (a percentage of which are "assault weapons" by one definition or another) kinds just bounces along near the bottom of the graph there, way below the dashed "non-firearm" line.




▼ Seventh, we have a simpler version of above. It's the total homicide rate, the firearm homicide rate, the non-firearm homicide rate, and the ratio of firearm to non-firearm homicides. As you can see, the firearm homicide rate continued to decline even after the Federal AWB expired in 2004.




▼ Eighth and finally, we have the per-capita sales as a ratio to 1986. Sales in 1986 are zero, and sales from 1987 to 2019 are expressed as a percentage above or below 1986. Doubling is a 100% increase, tripling is a 200% increase, etc. As you can see, handgun sales peaked at nearly 350% above 1986 levels, rifles climbed to 235%, and shotguns to 100%.




The number of guns sold in the United States from 1986 to 2019 is 236,425,288. That's right, over a quarter-billion guns were sold in the US in this 35-year period. 79,232,305 were imported and 166,598,230 made domestically.
48 replies = new reply since forum marked as read
Highlight: NoneDon't highlight anything 5 newestHighlight 5 most recent replies
35 years of gun sales, showing gun control's unintended consequences (Original Post) krispos42 Jan 2022 OP
NEVER Going To Stop Guns In America SoCalDavidS Jan 2022 #1
Strange..............43 posts and I can see only 15 of them. oneshooter Mar 2022 #43
Huh? SoCalDavidS Mar 2022 #44
17 posts have been dropped. oneshooter Oct 2022 #45
Have added some folks to ignore? n/t discntnt_irny_srcsm Oct 2022 #46
I do not put people on ignore. oneshooter Oct 2022 #47
If you have an add blocker... discntnt_irny_srcsm Oct 2022 #48
Had Democrats not pushed for gun control so strongly over the last few decades, Dial H For Hero Jan 2022 #2
Am I the only one melm00se Jan 2022 #3
I see them all. discntnt_irny_srcsm Jan 2022 #4
Are they too small, or are you getting broken links? n/t krispos42 Jan 2022 #5
It might be because the picture links.. krispos42 Jan 2022 #6
broken links melm00se Jan 2022 #7
Deafening silence. krispos42 Jan 2022 #8
The antigun activists on this site haven't the faintest interest in debating facts. Dial H For Hero Jan 2022 #9
Yeah, well. I had a beaut of a response for you, and I chickened out. Paladin Jan 2022 #10
Intriguing reply indeed krispos42 Jan 2022 #11
shall issue ccw was not wanted in the first place jimmy the one Feb 2022 #12
Some of this is specious melm00se Mar 2022 #13
re: "Can something be made more illegal?" discntnt_irny_srcsm Mar 2022 #14
Like the log I heard some businesses make you do to log your work time? yagotme Mar 2022 #15
my unanimous decision trumps yours jimmy the one Mar 2022 #16
re: Miller... looking to move in standup comedy? n/t discntnt_irny_srcsm Mar 2022 #18
re: juvenile ad hominem jimmy the one Mar 2022 #19
Okay discntnt_irny_srcsm Mar 2022 #20
No one objected, because Miller was deceased, yagotme Mar 2022 #21
Re: "my unanimous decision trumps yours" Surf Fishing Guru Mar 2022 #22
1939 Miller decision, cont'd #1 jimmy the one Mar 2022 #23
RE: 1939 Miller decision, cont'd #1 Surf Fishing Guru Mar 2022 #28
weasel words jimmy the one Mar 2022 #29
That sounds like confession by projection from you. Surf Fishing Guru Mar 2022 #32
prior state's right to bear arms decrees circa 1776 jimmy the one Mar 2022 #24
RE: State RKBA provisions Surf Fishing Guru Mar 2022 #30
bluntly speaking jimmy the one Mar 2022 #25
Bluntly true . . . Surf Fishing Guru Mar 2022 #31
provide links or excerpts for 'dissents' jimmy the one Mar 2022 #33
You couldn't have read the dissents . . . Surf Fishing Guru Mar 2022 #34
You can read but you cannot comprehend much jimmy the one Mar 2022 #35
That's some inventive reading . . . Surf Fishing Guru Mar 2022 #36
SUDDENLY, an excoriation jimmy the one Mar 2022 #37
Take a breath, calm down . . . Surf Fishing Guru Mar 2022 #38
Post removed Post removed Mar 2022 #40
Post removed Post removed Mar 2022 #41
Post removed Post removed Mar 2022 #42
Sorry, not sorry, sanctimonious is what I do . . . Surf Fishing Guru Mar 2022 #39
a blast from the past jimmy the one Mar 2022 #26
scalia erred in heller -1 jimmy the one Mar 2022 #27
mel's smoke and mirrors jimmy the one Mar 2022 #17

SoCalDavidS

(9,998 posts)
1. NEVER Going To Stop Guns In America
Tue Jan 4, 2022, 12:35 AM
Jan 2022

Regardless of whether any attempts are made to bring about gun control or not, gun violence will only get worse as time passes. It is just the way America rolls, and that’s NEVER EVER going to change.

I know Democrats feel the need to try to make things better, but it’s honestly a waste of time, money and emotion. The battle is lost, not that there was ever really a “battle.”

oneshooter

(8,614 posts)
43. Strange..............43 posts and I can see only 15 of them.
Wed Mar 16, 2022, 05:55 PM
Mar 2022

have there been a lot of bad words/thoughts used?

discntnt_irny_srcsm

(18,479 posts)
48. If you have an add blocker...
Sat Oct 29, 2022, 02:01 PM
Oct 2022

...maybe the posts you can't see have ads that you browser is blocking via that add on.

 

Dial H For Hero

(2,971 posts)
2. Had Democrats not pushed for gun control so strongly over the last few decades,
Tue Jan 4, 2022, 04:04 PM
Jan 2022

There would now be far fewer firearms in circulation.

I fear though, that the data that you’ve painstakingly laid out which supports this assertion will simply be dismissed by the other side with overemotional rants, likely involving such misspelled words as “gunz” and “Murcia!”.

melm00se

(4,991 posts)
3. Am I the only one
Sat Jan 8, 2022, 11:53 AM
Jan 2022

who cannot see the majority of the images?

Without them, I am not sure how any substantive comments can be made.

krispos42

(49,445 posts)
6. It might be because the picture links..
Sat Jan 8, 2022, 02:01 PM
Jan 2022

Don't have a security protocol.

They are "http" not "https".

I tried changing it but it killed the links. I don't think I sprang for a security certificate when I bought the site.

Possible solutions:

Right-click and open each picture in a new tab

Go into your browser settings and allow mixed content to show when visiting DU

melm00se

(4,991 posts)
7. broken links
Sat Jan 8, 2022, 06:34 PM
Jan 2022

but your suggestion to open individually in tabs works.

I'll review them and comment shortly

 

Dial H For Hero

(2,971 posts)
9. The antigun activists on this site haven't the faintest interest in debating facts.
Tue Jan 11, 2022, 03:28 PM
Jan 2022

Hell, just look at the most prolific one, who just announced that he won't be replying to any of the "gunners" here as he vows in the same breath that every single privately owned firearm is going to be confiscated.

Paladin

(28,252 posts)
10. Yeah, well. I had a beaut of a response for you, and I chickened out.
Tue Jan 11, 2022, 05:16 PM
Jan 2022

It's the times in which we live.

jimmy the one

(2,708 posts)
12. shall issue ccw was not wanted in the first place
Sun Feb 27, 2022, 05:08 PM
Feb 2022

Not one of those states* which passed shall issue concealed carry laws had public support prior to the law's passage. Those shall issue ccw laws were rammed thru after republican legislatures got in power so as to overrule democratic opposition, against the will of citizen majorities in their states.
Reputable polls prior to passage had public support against shall issue, generally by 55% to 60% opposition.

So I don't know what you are bragging about with that misleading changing chart propaganda. Reminds me more of hitler's takeover of europe.

* that I am aware of, and I lived thru it and followed polls closely. Not even texas wanted shall issue.

melm00se

(4,991 posts)
13. Some of this is specious
Tue Mar 1, 2022, 12:42 PM
Mar 2022

and removes the stick necessary to ensure that the government does its job.

end online sales of guns and ammunition - online sales of guns....oooooooo....sounds scary BUT the reality is that if someone were to legally buy a gun online, the gun is delivered to a gun store in the state the purchaser resides. The purchaser must then go the normal background check before the gun can be delivered. Ammo sales, for the most part, are extremely expensive as shipping can drive the price of ammo beyond the price of local vendors. I just ran the numbers for 30 boxes of 12 gauge ammo and it added an additional 10% to the price.

close dangerous loopholes that currently allow stalkers, abusive partners, and some individuals convicted of assault or battery to buy and possess firearms - There is already a law in place making it illegal for people convicted of these offenses or subject to retraining orders.


The “Charleston loophole” - This was designed and implemented because there are folks who would suggest and implement intentional delays in an NICS check process as a backdoor method for gun control. There is no reason for a background check to take more than 20 minutes or so.


and prevent individuals who have been convicted of hate crimes from possessing firearms - again, there are laws that exist to prevent a convicted felon from buying, owning, possessing firearms. Can something be made more illegal?

We will incentivize states to enact licensing requirements for owning firearms - see Haynes v. United States which takes the teeth out of gun registration laws with 5th Amendment protections.


extreme risk protection order laws that allow courts to temporarily remove guns from the possession of those who are a danger to themselves or others. - Red flag laws are extremely dicey. See Caniglia v. Strom and before you comment about a right wing Supreme Court, this was a 9-0 decision.


We will pass legislation requiring that guns be safely stored in homes. - How will a law like this be enforced? Police checks? Does the fact that you own (or may own) a gun create a situation where you yield your 4th Amendment protections?

discntnt_irny_srcsm

(18,479 posts)
14. re: "Can something be made more illegal?"
Tue Mar 1, 2022, 06:06 PM
Mar 2022

Most of this list is probably sourced from folks who don't know existing laws.

Some think that setting the thermostat to 90 will get the house to 70 faster than setting it to 70 or 71.

I know it's not the best analogy but it seems easier, I guess, to simply pile on more restrictions until there is some measure of observable change in the desired direction. It does remind me a bit of a few places I've worked where more meetings are piled on to focus on the schedule that's running behind. This does in part take time away from work on the desired progress.

The beatings will continue until morale improves.

yagotme

(2,919 posts)
15. Like the log I heard some businesses make you do to log your work time?
Fri Mar 4, 2022, 05:01 PM
Mar 2022

And, filling out the log didn't count as work. Every 15 minutes, as I recall.

jimmy the one

(2,708 posts)
16. my unanimous decision trumps yours
Thu Mar 10, 2022, 08:46 AM
Mar 2022

Last edited Thu Mar 10, 2022, 09:42 AM - Edit history (1)

melmoose: Red flag laws are extremely dicey. See Caniglia v. Strom and before you comment about a right wing Supreme Court, this was a 9-0 decision.

The 1939 supreme court Miller decision was also a unanimous decision. Recall (if you ever read it) what that unanimous 8-0 decision said about the 2nd amendment:

1939 scotus Miller decision, 8-0 unanimous: Miller, (1939):

Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 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.


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 https://en.wikipedia.org/wiki/United_States_v._Miller

Above decision was bolstered by a Dept of Justice amicus brief to 1938/39 scotus re miller:
In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment (United States v. Adams), the contention was summarily rejected as follows
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.
https://guncite.com/miller-brief.htm

It has been 8 decades since the supreme court ruled on the proper interpretation. The 1939 Miller decision which was unanimous 8-0 ruling it was a militia based right.
One would think that if the supreme court truly thought it was an individual right, as gun nuts spin miller, that at least one of the justices would've objected to the wording above, arguing that 'whoa, future generations will think we thought it was a militia based right', but not one objected.

jimmy the one

(2,708 posts)
19. re: juvenile ad hominem
Sat Mar 12, 2022, 08:17 AM
Mar 2022

dscntntironyetc: re: Miller... looking to move in standup comedy? n/t

Your rebuttal is a juvenile ad hominem attack?
Look up, the joke is on you.

yagotme

(2,919 posts)
21. No one objected, because Miller was deceased,
Sun Mar 13, 2022, 08:24 PM
Mar 2022

something about a dead horse, and all. No one was defending a corpse.

"Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 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."

I want my M-16 that should have been issued to me, or at least to have been purchased by me, with no regulation, as this weapon, in a reasonable relationship with the current military, would have been effective in a well-regulated militia. I am past the age for the "militia" now, but, hey, I'm owed, right? The SC hearing Miller said so...

Surf Fishing Guru

(115 posts)
22. Re: "my unanimous decision trumps yours"
Mon Mar 14, 2022, 03:08 AM
Mar 2022
jimmy the one said:

Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.


That holding summary (which came from where?) mentions the important distinction; the decision and holding was focused on the type of weapon and its usefulness in battle. Nothing in Miller discusses Miller's or Layton's lack of association with any militia organization and that condition being determinate in the Court's denial of 2ndA protection for their possession of the shotgun.



jimmy the one said:

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


That is only a statement that the object of the 2nd Amendment was to preserve the general militia principle. This another place where the McReynolds leans heavily on Aymette. That sentence from Miller does not support any interpretation making the right recognized and secured by the 2ndA conditioned on, or qualified by, a citizen's militia association.



jimmy the one said:

Above decision was bolstered by a Dept of Justice amicus brief to 1938/39 scotus re miller:


Holy selective chop quoting Batman!

How in Trump's butthole do you think SCOTUS is "bolstered" by a Southern District of Florida case? I get why the Solicitor General included the quote, but what an exaggeration by you!

Why didn't you quote the government, in its summary of its argument unequivocally affirming SCOTUS precedent (Cruikshank / Presser) that the "Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress"?

To further apply the Cruikshank / Presser reasoning and to challenge your (and the Solicitor General's) "militia right" theory, how can a right that isn't granted by the 2nd Amendment and exists and is possessed by the citizen without any dependence upon the Constitution, be conditioned on or qualified by a structure (the Art I, §8 organized militia) that is itself, entirely dependent on the 2nd Amendment for its existence?

I ask that because the government goes on to contradict Cruikshank and Persser and yes, does argue "the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law" . . . But of course SCOTUS never acknowledged that argument, let alone sustained it in Miller because that would have reversed / overruled Cruikshank and Presser on that point.

It seems to me all the Miller Court took from the US government's brief is Aymette's explanations which informed the Court on how to treat the sawed-off shotgun, "in the absence of any evidence tending to show that possession or use" of that type of arm had militia usefulness or could be useful in the common defense.



jimmy the one said:

It has been 8 decades since the supreme court ruled on the proper interpretation. The 1939 Miller decision which was unanimous 8-0 ruling it was a militia based right.


No, it's been 13 years since the SCOTUS reasserted Miller, reaffirmed the individual right and slapped the lower federal courts back into the constitutional fold.

The "militia based right" you speak of was the very sad and desperate resurrection of a racist discriminatory theory of the rebel states that was inserted in the federal courts for the singular reason of dismissing and ignoring SCOTUS in Miller, to avoid striking down gun control by enforcing the 2nd Amendment.

Those collective right theories (the "militia right" and "state's right" interpretations) came into being in the federal courts AFTER Miller. Those interpretations were conjured into existence in the federal courts in Cases v. U.S., 131 F.2d 916 (1st Cir. 1942) and U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942) respectively.



jimmy the one said:

One would think that if the supreme court truly thought it was an individual right, as gun nuts spin miller, that at least one of the justices would've objected to the wording above, arguing that 'whoa, future generations will think we thought it was a militia based right', but not one objected.


Probably because nobody but anti-constitution authoritarians would ever read Miller to speak to the status of the citizens bringing the case. Miller doesn't say Miller and Layton had no 2nd Amendment rights . . . The Court only said a "shotgun having a barrel of less than eighteen inches in length" was not shown to be a type of arm that is any part of the ordinary military equipment or that its use could contribute to the common defense.

If you want to read a correct assessment of what Miller REALLY demands, the First Circuit actually gave it to us in Cases v US, the decision that gave us the "militia right". Cases used the most hyperbolic and terrifying (but on principle true) interpretation, to argue dismissing SCOTUS and to justify ignoring what this court recognizes Miller demands the court do:


Cases v. U.S., 131 F.2d 916 (1st Cir. 1942) -- paragraph breaks added:

". . . the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.

But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute.

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . .

https://guncite.com/court/fed/131f2d916.html



I would love to deeply examine the 1st Circuit's reasoning for its final determination (after the ellipsis in my quote above). By all means, I beg you to go read what I purposefully chopped off and come back and try to defend the genesis of the "militia right" in the federal courts of the USA.

That is where your beloved militia right began, that is where the travesty began and begat 66 years of legal perversion and rights infringement -- until Heller finally put a stake in it.

.

jimmy the one

(2,708 posts)
23. 1939 Miller decision, cont'd #1
Mon Mar 14, 2022, 08:14 AM
Mar 2022

1939 scotus miller decision: Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.

guru: the decision and holding was focused on the type of weapon and its usefulness in battle. Nothing in Miller discusses Miller's or Layton's lack of association with any militia organization and that condition being determinate in the Court's denial of 2ndA protection for their possession of the shotgun.

You iterate the gun lobby song and dance to wiggle around the 1939 Miller decision, which was clear at the time in the vernacular of the day, the intention of 2ndA being for a well regulated militia not an individual right.
Miller and Layton were not involved with a well regulated militia (wrm) at the time they crossed state line with a sawed off shotgun. The unorganized militia did not count, nor did they cite it as far as I know - which would not apply anyway since the unorg'd militia fails the 2ndA litmus test which calls for a 'well regulated' militia and unorganized by definition is not well regulated.
_____________________________
1939 Miller case: 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.

guru: That is only a statement that the object of the 2nd Amendment was to preserve the general militia principle. This another place where the McReynolds leans heavily on Aymette. That sentence from Miller does not support any interpretation making the right recognized and secured by the 2ndA conditioned on, or qualified by, a citizen's militia association.

Not really, and your tap dance does not impress. It was a statement that, since Jack Miller was not part of a wrm, he could not claim 2ndA rkba. Aymette, while a state ruling for militia for common defense, cited the English 'have arms' decree of 1688 as being the basis for 2ndA. Thus it carries more weight than a simple state ruling that residents had an individual or militia based rkba (which became the original militia/individual dichotomy in the early 1800's, as militia scofflaws argued for the individual rkba without serving in militia). The 1688 english 'have arms' decree was the basis for 2ndA.
----------------------------
guru: Why didn't you quote the government, in its summary of its argument unequivocally affirming SCOTUS precedent (Cruikshank / Presser) that the "Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress"?

I didn't cite the nazis losing wwII either. You in typical fashion preclude the 'people' as meaning synonymously the militia, in 1790's vernacular, 2ndA being singular amongst amendments due the situational.
2ndA is both a protective right as well as a limitation on congress, not 'merely recognizes the prior existence'.. 'Prior existence', although subjective, circa 1791 of any right to keep and bear arms was militia centric, only two colonies iirc mentioned individual right along with a militia rkba (see my next post).
By 'rights of individuals' it is meant the right/duty to belong to a well regulated militia.

The articles of confederation, in force during the rev-war, had this 'have arms' decree: Art VI “…Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed…and shall provide…a proper quantity of arms…” https://www.democraticunderground.com/?com=view_post&forum=1172&pid=208475

encyclopedia britannica: Bill of Rights, in the United States, the first 10 amendments to the U.S. Constitution, which were adopted as a single unit on Dec 15, 1791, and which constitute a collection of mutually reinforcing guarantees of individual rights and of limitations on federal and state governments. http://www.britannica.com/EBchecked/topic/503541/Bill-of-Rights

Wm Rawle, 1829, A View of the Constitution, all caps by rawle - not my emphasis: CHAPTER X. OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS
Of the amendments already adopted, the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power. The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all.
http://www.constitution.org/wr/rawle_10.htm

wiki: The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public. http://www.democraticunderground.com/1172167980

Surf Fishing Guru

(115 posts)
28. RE: 1939 Miller decision, cont'd #1
Mon Mar 14, 2022, 11:34 AM
Mar 2022
jimmy the one said:

You iterate the gun lobby song and dance to wiggle around the 1939 Miller decision, which was clear at the time in the vernacular of the day, the intention of 2ndA being for a well regulated militia not an individual right.



Miller sure doesn't say that explicitly nor does it even suggest that conclusion. Miller is all about "the instrument" not the man.

The Court's opinion was simply that because the the type of weapon at issue was not shown to be useful in war, it was not eligible for Second Amendment protection, not any decision hinging on whether private citizens possess a general right to arms under the 2nd Amendment. Miller speaks to the former and is silent on the latter.

Miller and Layton are inconsequential, their status under the Constitution was of no interest to the Court. The question before the Court was only whether Section II of the National Firearms Act was invalid as violative of the Second Amendment, thus the District Court erred in sustaining the demurrer of the appellees to the indictment.

Aymette answered that question for the Miller Court; it explained to the Court the criteria for determining if an arm is beyond the regulatory reach of government and that criteria was focused on one thing, the arm's usefulness in battle. The Court heard no evidence to that end, that a sawed-off shotgun was useful in war or the common defense, thus the Court reversed the District court's decision and remanded.

Your entire position is an imaginative over-reading.


jimmy the one said:

Not really, and your tap dance does not impress. It was a statement that, since Jack Miller was not part of a wrm, he could not claim 2ndA rkba.



Where is that statement made? When the Court references the §8 militia clauses and says, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view", that is a statement hearkening Aymette's explanation of the object of the Tennessee RKBA provisions:


Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) said:

"As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."


The collective object, the overall intent of this provision, (and the Miller court feels, the 2nd Amendment), is the perpetuation of the general militia principle and that can not exist or be fulfilled, without the means to achieve it, the individual right to keep and bear arms.

From this language, it is easy to see why the Miller Court was guided by Aymette on the question of how a sawed-off shotgun should be treated. It is also important to note that the very same passage absolutely and undoubtedly endorses an individual right, rather than a state power.

Again, the people acting in a body, for their common defence is the [collective] object for which the (already existing and unquestioned) individual right to keep and bear arms is secured.

Every man has the right to keep arms of the type usually employed in civilized warfare, that constitute the ordinary military equipment. If the citizen has these arms in his hands he is able to immediately bear them, to either defend the civil authorities when called in time of need --OR-- to bear arms on concert with other citizens, to repel any encroachments upon his and his neighbors rights by those in authority.

Your position / argument that the collective object overrides or negates the individual right means to achieve the object, demonstrates willingness to accept a disconnect in philosophy and of logic and a great misunderstanding of the general (not select) militia principle.

It requires us to just conveniently ignore thousands of years of political thought (going back to Plato and Aristotle) and history, dismissing the foundational, basic principles of a Republic, which has, as Presser reminds us, a basic, unalterable tenet:

Presser v. Illinois, 116 U.S. 252 (1886):

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, . . . "


It is ridiculous to argue the "right" to keep and bear arms is possessed only by those citizens enrolled in the militia . . . Nothing an enrolled militia member does while a militia member, from initially arming himself or then bearing the arm, is an exercise of any right. Those actions are entirely undertaken in obedience of law, a fulfillment of an obligation or duty, not an exercise of, or reliance on, a right or any claim of immunity from government power.

You are arguing nonsense.


Aymette continues on an important point:

"The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed."


This is where the doctrine of "dangerous and unusual" comes from . . . Note that the particular point in law really means that only arms that are both dangerous AND not usual in civilized warfare is the criteria to allow government to argue for a power to restrict possession and use by private citizens, not that "dangerousness" or an arm being called unusual is something the government can begin it's arguments with -- see "assault weapons".


continued next post
.




jimmy the one

(2,708 posts)
29. weasel words
Mon Mar 14, 2022, 01:18 PM
Mar 2022

guru: It is ridiculous to argue the "right" to keep and bear arms is possessed only by those citizens enrolled in the militia

So ridiculous it's been argued for 230 years as either full or militia centric to original intent in 1791, and until scalia via heller subverted 2ndA the militia rkba was largely accepted as the proper interpretation of original intent.
You are a pro gun sophist.
Weasel is kinda synonymous with sophistry.

Below, read what guru quoted from presser in his preceding post, and note the ellipses, the 3 dots after 'arms,', indicating a partial quote with more to come. Guru clipped the sentence by inserting 3 dot ellipses for the sentence remainder:

guru above: ... the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, . . . "

Leads readers to believe states could not prohibit the people from gun rights, eh?
Guru clipped off the remaining part of the sentence, quelle surprise, for it debunked his own argument.
Here is the fuller sentence in context:

scotus 1886 presser quote: ... the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect. https://www.law.cornell.edu/supremecourt/text/116/252

Guru evidently does not understand the diff between 'public security' and a 'collective duty to the general govt', from individual gun ownership. Or was guru citing a far right wing gun source? he was disinclined from posting links.

Surf Fishing Guru

(115 posts)
32. That sounds like confession by projection from you.
Mon Mar 14, 2022, 07:03 PM
Mar 2022
jimmy the one said:
So ridiculous it's been argued for 230 years as either full or militia centric to original intent in 1791, and until scalia via heller subverted 2ndA the militia rkba was largely accepted as the proper interpretation of original intent.
You are a pro gun sophist.
Weasel is kinda synonymous with sophistry.


That sounds like confession by projection.

jimmy the one said:
Guru clipped off the remaining part of the sentence, quelle surprise, for it debunked his own argument.
Here is the fuller sentence in context:

scotus 1886 presser quote: ... the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.


Debunked? That part does not do what you think it does. All it says is the states are barred from disarming a state's citizens because those armed citizens are the same resource the federal government depends upon for its security. This explains a mingled dependence, in the reverse of what is called nowadays "states rights".

This is a vital point because SCOTUS says that mandate against states disarming its citizens exists without reference to the 2nd Amendment ("laying the constitutional provision in question out of view" ) because this federal enforcement of the citizen's RKBA against state action exists in two planes. It exists in the "prerogative of the general government, as well as of its general powers". That word, prerogative, describes a underlying principle of our Constitutional Republic.

Because the Constitution promises to the states to forever provide a republican form of government, a power is thus granted by inference to keep that promise, to secure the continuance of our founding republican principles.

The republican government that the founders embraced and established has, as one of its most fundamental components, a mass of armed citizens; ("It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, . . ." as SCOTUS puts it).

The federal government then, in keeping that republican promise, can not allow any state to act in an 'un-republican' fashion, such as disarming the citizens. Understand also that the principle works both ways; the federal government can not act to disarm the citizens because the states rely on those same citizens and their guns, for their security. The 2nd Amendment is the redundant enforcement of that federal impotence to act against the armed citizens of the states.

And to speak to your mistaken proposition that Presser supports a "conditioned / qualified" RKBA, Presser makes it very clear that the right protected on multiple planes, by the "prerogative of the general government, as well as of its general powers", without reference to the 2nd Amendment, or the 2nd Amendment itself, does not belong to the states to preserve any state militia power.

If it did, the Court would have tested and applied your 2ndA's "militia right" scope and effect --supposedly only protecting state interests-- against the federal "prerogative of the general government, as well as of its general powers" that the Court shows works to bind the states, not testing the 2nd Amendment against Illinois' claimed militia power to require private citizens to obtain a permit for an armed march.

Your theory fails on all planes of Presser.

.





jimmy the one

(2,708 posts)
24. prior state's right to bear arms decrees circa 1776
Mon Mar 14, 2022, 08:37 AM
Mar 2022

Eight of the original states enacted their own bills of rights (+ arms rights) prior to the adoption of the US Constitution. The 'prior' interpretations of 'the people' in reference to keeping bearing arms: Only Pennsy and Vermont included
an individual rkba to comprise the 'militia centric' rkba: http://www.madisonbrigade.com/library_bor_2nd_amendment.htm#LEGISLATION

VIRGINIA (June 12, 1776)
13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.

DELAWARE (September 11, 1776)
18. That a well-regulated militia is the proper, natural and safe defence of a free government.

PENNSYLVANIA (September 28, 1776)
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

MARYLAND (November 11, 1776)
XXV. That a well-regulated militia is the proper and natural defence of a free government.

NORTH CAROLINA (December 18, 1776)
XVII. That the people have a right to bear arms for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under the strict subordination to, and governed by, the civil power.

VERMONT (July 8, 1777)
XV. That the people have the right to bear arms for the defence of themselves and the State

MASSACHUSETTS (October 25, 1780)
XVII. The people have a right to keep and bear arms for the common defence.

NEW HAMPSHIRE (June 2, 1784)
XXIV. A well regulated militia is the proper, natural, and safe defence of a state.

In addition to these legislative enactments of bills or declarations of rights, there were numerous other proclamations being promulgated at the time. For example:

MINORITY OF THE PENNSYLVANIA CONVENTION (Dec 12, 1787) That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public inquiry from individuals.

DEBATES OF THE MASSACHUSETTS CONVENTION (Feb 6, 1788) And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.

NEW HAMPSHIRE RATIFICATION CONVENTION (June 21, 1788)
Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.


VIRGINIA CONVENTION (June 27, 1788) 17th. That the people have a right to keep and bear to arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state; that standing armies, in time of peace, are dangerous to lib..

NEW YORK CONVENTION (July 7,1788) That the militia should always be kept well organized, armed and disciplined, and include, according to past usages of the states, all the men capable of bearing arms, and that no regulations tending to render the general militia useless and defenceless, by establishing select corps of militia, of distinct bodies of military men, not having permanent interests and attachments to the community, ought to be made.

NEW YORK CONVENTION (July 26,1788) That the people have the right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.

RHODE ISLAND RATIFICATION CONVENTION (May 29, 1790) XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.

Surf Fishing Guru

(115 posts)
30. RE: State RKBA provisions
Mon Mar 14, 2022, 06:51 PM
Mar 2022

I am well aware of state RKBA provisions.

I find it peculiar that your "militia right" theory requires us believe that the people actually had their right to arms silently surrendered and secretly, invisibly conferred to the federal government,and retained no aspect of the right to keep and bear arms after June 21, 1788 . . . And then, in 1791, the government gave back to the people a qualified, conditioned permission in the 2nd Amendment, only recognizing and protecting arms keeping and bearing for militia purposes, as the federal government alone shall define.

It seems everyone was fooled; the states and the anti-Federalists (who both demanded a bill of rights), and the Federalists, (who opposed a bill of rights as dangerous and absurd) . . . All would, in their profound confusion, agree to a "Bill of Rights" provision and ratify a Trojan Horse that really grants to the federal government complete power to command the states, dictating just who among their citizens shall be the approved arms keepers and bearers, and under what conditions those select state citizens can exercise this "right".

Your position strikes me as exactly the kind federal intrusion and evil constructive powers that the state reps and the anti-Federalists and even the Federalists were all terrified of, and warned about.

jimmy the one

(2,708 posts)
25. bluntly speaking
Mon Mar 14, 2022, 08:55 AM
Mar 2022

guru: Holy selective chop quoting Batman! How in Trump's butthole do you think SCOTUS is "bolstered" by a Southern District of Florida case? I get why the Solicitor General included the quote, but what an exaggeration by you!

I have no idea what you are driving at, except maybe that you like stupid movies.
The 1938 Dept of Justice provided the below amicus brief, citing adams, to the 1938/39 supreme court, which the court used as a basis in its ruling as presented in my previous posts. Thus the 1938/39 supreme court was bolstered by the amicus brief. Duh:

In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment (United States v. Adams, 11 F. Supp. 216 (S. D. Fla.)), the contention was summarily rejected as follows (pp. 218-219):
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.


guru: No, it's been 13 years since the SCOTUS reasserted Miller, reaffirmed the individual right and slapped the lower federal courts back into the constitutional fold.

By a 5-4 margin was heller, while the 1939 decision was unanimous 8-0. Scalia did not 'reaffirm' any individual right, he created one. Or rather concocted one. He misquoted, mis-cited, misinterpreted several pro militia 1800's sources, twisting them and himself into pretzels to do that.

guru: The "militia based right" you speak of was the very sad and desperate resurrection of a racist discriminatory theory of the rebel states that was inserted in the federal courts for the singular reason of dismissing and ignoring SCOTUS in Miller, to avoid striking down gun control by enforcing the 2nd Amendment.

That bluntly, is fos.


Surf Fishing Guru

(115 posts)
31. Bluntly true . . .
Mon Mar 14, 2022, 06:57 PM
Mar 2022
jimmy the one said:

I have no idea what you are driving at, except maybe that you like stupid movies.



Just that if you are going to quote something from the US government's brief, at least make it something that the Court actually used, not something you imagine it used.


jimmy the one said:

The 1938 Dept of Justice provided the below amicus brief, citing adams, to the 1938/39 supreme court, which the court used as a basis in its ruling as presented in my previous posts. Thus the 1938/39 supreme court was bolstered by the amicus brief. Duh:



Again, how exactly did the Supreme Court use Adams as a "basis" in, and to "bolster" their Miller opinion?

The Court took no notice of the case, it included no reference to Adams as an authority in footnote 3 listing what the Court considered informative lower federal and state cases.

What the Solicitor General (and you) quote as the primary holding of Adams, that the 2ndA "refers to the militia, a protective force of government; to the collective body and not individual rights" does not appear in US v Miller (or any SCOTUS opinion).


jimmy the one said:

By a 5-4 margin was heller,



The 5-4 tally was to invalidate the DC statues; on the specific question of whether the 2ndA secures either a "collective right" or an "individual right", Heller was 9-0 for recognizing and securing an individual right. Haven't you ever read the Heller dissents?


jimmy the one said:

That bluntly, is fos.



No, it is absolutely is bluntly true. The rebel states justified their racially discriminatory laws forbidding Blacks to possess arms, on the fact that the federal Militia Act of 1792 only permitted "free white citizens" to enroll.

The many rebel states worded their constitution's right to arms as only being secured for whites (e.g., Aymette's quote of Antebellum Tennessee's provision) and there were state judicial decisions that held for that premise.

The premise died out after Reconstruction and those states with racially discriminatory language were forced to rework their RKBA provision to align with the non-discriminatory 2nd Amendment to gain readmission to the Union.

The discriminatory premise was resurrected in 1942 in Cases v US, to ignore SCOTUS and to condition the federal RKBA/2ndA for all US citizens, to just enrolled / active members of the militia.

Sorry, that's the real 18th & 19th Century history in the states and the 20th Century provenance in the federal system of your "militia right" theory.


jimmy the one

(2,708 posts)
33. provide links or excerpts for 'dissents'
Mon Mar 14, 2022, 08:31 PM
Mar 2022

guru: The 5-4 tally was to invalidate the DC statues; on the specific question of whether the 2ndA secures either a "collective right" or an "individual right", Heller was 9-0 for recognizing and securing an individual right. Haven't you ever read the Heller dissents

I've read the heller dissents, but have not seen any of the 4 justices 'recognizing and securing an individual right'.
I am calling you a liar until you post proof of what you contend above.

And you shoveled under the rug your gaffe clipping off the germane ending of your quote. Quelle surprise.

You post bloviating word salad rebuttals stocked with fractured & strained reasoning.

Surf Fishing Guru

(115 posts)
34. You couldn't have read the dissents . . .
Mon Mar 14, 2022, 11:53 PM
Mar 2022
jimmy the one said:
I've read the heller dissents, but have not seen any of the 4 justices 'recognizing and securing an individual right'.
I am calling you a liar until you post proof of what you contend above.


You could have just read them for real and saved yourself the embarrassment of me proving myself correct.

Breyer said, with Stevens, Souter and Ginsburg joining (emphasis added):

"The Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:​

(1)?The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting)."​


http://www.law.cornell.edu/supct/html/07-290.ZD1.html


Here we see Breyer and the other 3 dissenting Justices agreeing that ALL THREE Heller opinions issued that June day in 2008, all concur with the individual right interpretation.

The four dissenting Justices all agree that the individual right interpretation is the only interpretation represented in the Court's precedent.

The four dissenting Justices all agree that THE ENTIRE COURT AGREES WITH THOSE STATEMENTS.


Stevens also wrote for the individual right . . .

"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. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."​

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


Stevens then went on a grand snipe hunt ignoring precedent, putting the text of the 2ndA into a meatgrinder to invent a restrictive scope and a plausible argument to sustain DC's laws.

He failed.


jimmy the one

(2,708 posts)
35. You can read but you cannot comprehend much
Tue Mar 15, 2022, 08:06 AM
Mar 2022

guru: Here we see Breyer and the other 3 dissenting Justices agreeing that ALL THREE Heller opinions issued that June day in 2008, all concur with the individual right interpretation.

No we do not see that and no they do not concur with what you say. What we see is you guru, not being able to comprehend what breyer wrote, what he was doing when he laid forth 4 propositions which were the crux of the 2ndA argument before the court.
I immediately knew what you were talking about my last reply, but wanted to draw you in so as to expose hypocrisy and your con job. I did not lie, I said I had not seen any dissents claiming an individual rkba.

Breyer is referring to 4 different propositions which described the possible meanings of the original 2ndA, of which the 2ndA individual interpretation proposition he listed first. When breyer said the 'entire court subscribes' he was simply referring to the entire court subscribing to the 4 different possible propositions of the 2ndA argument. I list them below, from YOUR source link cornell which I consider reputable:

Breyer wrote in his dissent: IThe Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1)?The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).

(2)?As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, (1939) ; see ante, at 26 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).

(3)?The Amendment “must be interpreted and applied with that end in view.” Miller

(4)?The right protected by the Second Amendment is not absolute, but instead is subject to government regulation.


To wit you, to explain to you what you pathetically and obnoxiously spin to pro gun ecstasy, is that those 4 propositions were the 2ndA current opionions and possibilities for the intent and meaning of the 2ndA as it exists today; 4 propositions which the entire court agreed comprised the debate, not that the entire court agreed to the first proposition. The entire court agreed that the 4 propositions were at the crux of the issue. The dissenting justices did NOT agree that the first proposition was paramount, for breyer and stevens later in the very link you posted, went on to debunk it, jeez, did you not read your own link?

In your laughable 'proof', you again took out of context and omitted the final 3 propositions, and only included the first proposition which set forth the individual rkba theory. And you expect rational people cannot comprehend and to be gullible saps to agree with you? A high school freshman would likely see it.

guru: You could have just read them for real and saved yourself the embarrassment of me proving myself correct.

Oh I read the dissents almost a decade ago. How is it that 'you' have not seen the rebuttals to your inane misinterpretation of breyer's 4 propositions for almost a decade now? it is apparently what you get from living in a far right wing world of misinformation disinformation and pathetic lies and absurdities gleaned from far right wing gunnut magazines and crap heads like alex jones and wayne lapierre-head, nra, et al.

After doing an advanced search of 'proposition' it was easy to bring up this post of yours from 7 years ago where I debunked your very argument above. In other words, you WERE AWARE that what you contended yday was a BIG. FAT. LIE. You posted the same con job on nov 20, 2015, to which I myself, debunked you then. You have a lot of stinking nerve to pull this again: https://www.democraticunderground.com/?com=view_post&forum=1172&pid=181811

Go get a napkin wipe the egg off your face, and get a winch to pull your foot out of your mouth.


Surf Fishing Guru

(115 posts)
36. That's some inventive reading . . .
Tue Mar 15, 2022, 09:26 AM
Mar 2022
jimmy the one said:

Breyer is referring to 4 different propositions which described the possible meanings of the original 2ndA, of which the 2ndA individual interpretation proposition he listed first.


The four propositions are not conflicting alternatives, they are complimentary to each other and all inform as to the RKBA that is recognized (not granted, given, created, or established) and secured by the 2nd Amendment . . .

Do you really not know you are arguing a interpretation nobody attaches themselves to anymore?

The "militia right" interpretation is defunct, dead.

There was a narrow sliver of a hybrid militia qualified but individual right kept alive between 2000 and Heller, articulated by the anti-gun academic Saul Cornell in 2004 as a "New Paradigm" for the 2ndA. It posited neither an entirely "collective right" or "individual right", and it was loosely argued by Stevens in his Heller dissent and then quickly forgotten. It's funny, you didn't get that memo, that it is all over . . .

I'll give you your props, you are an original pureblood, keeping the old 1942 "militia right" fight alive like a stranded Japanese soldier abandoned on a Pacific island, with a bayonet in his mouth, still fighting for Imperial Japan.

You should be abandoning what's dead and conserving your energy, preparing yourself mentally for the utter decimation of gun control that is coming in a few short months.

.

jimmy the one

(2,708 posts)
37. SUDDENLY, an excoriation
Tue Mar 15, 2022, 02:07 PM
Mar 2022

guru: The four propositions are not conflicting alternatives, they are complimentary to each other and all inform as to the RKBA that is recognized (not granted, given, created, or established) and secured by the 2nd Amendment . . .

You are a con man. SUDDENLY, after I expose his fraud, surf guru claims there are four propositions, not just one, and they are 'complimentary to each other'.
Guru didn't claim they were 'complimentary' when he posted the following - guru clearly contended breyer felt 'the individual right interpretation is the only interpretation represented in the Court's precedent':

guru 1: Here we see Breyer and the other 3 dissenting Justices agreeing that ALL THREE Heller opinions issued that June day in 2008, all concur with the individual right interpretation.

guru 2: The four dissenting Justices all agree that the individual right interpretation is the only interpretation represented in the Court's precedent.

guru 3: The four dissenting Justices all agree that THE ENTIRE COURT AGREES WITH THOSE STATEMENTS.

Guru didn't mention the other 3 'complimentary' propositions in 2015 when he wrote on DU: 'Heller was 9-0 for the individual right view -- Breyer saying, "I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1)?The Amendment protects an “individual” right" . . . "
with no further mention of the other 3 propositions.

Guru just mentioned the 'individual right' proposition and mislead that was what breyer and the 3 other liberal justices were contending. This was and is an intentional egregious misrepresentation by guru as to what breyer was contending.
SUDDENLY guru is caught in his lie, and changes his tune in a pathetic attempt to save face.
Second amendment mythology adherent. Lie after lie. Quoting out of context. Disjointed segments lifted from right wing websites where pro gun spin is the name of the game.

I don't need YMMS abbreviations to hide behind, I say it in plain english - people like this make me sick. Sanctimonious egos with half baked mythologies and twisted reasoning skills. Claiming their rights are being trampled upon by gun control efforts and citing an outdated 230 year old antiquated amendment as their sacred cow. Pathetic under-educated punks who take snippets out of context and inflate them into larger than life talking puppets to hide behind.
Then here, suddenly confronted with the truth, tries to wiggle out with more lies to obscure original lies. This is not the mark of a decent person. It is the mark of a fraud, a charlatan, a trumpian con artist.

Go ahead report my post, I don't give a whit if it gets hidden or I get some sanction. I have such little respect for these types of punks that a warranted excoriation is just part of the battle.
As far as the sanctimonious advice to abandon gun control and face guru's brand of pro gun idiocy, not gonna happen. The truth will remain intact for those who seek it, even when egregious adulterations and distortions occur.

guru: Do you really not know you are arguing a interpretation nobody attaches themselves to anymore?

Go look up the word 'nobody'.

Surf Fishing Guru

(115 posts)
38. Take a breath, calm down . . .
Tue Mar 15, 2022, 11:33 PM
Mar 2022
jimmy the one said:
SUDDENLY, after I expose his fraud, surf guru claims there are four propositions, not just one, and they are 'complimentary to each other'.



Yes, there are four propositions and while related and "complimentary", they are separate and distinct and can stand alone as their own concepts.

Note that each proposition has different citations. Do you think you should be listening to what that is telling you?

Do you consider Breyer a fraud? Yeah, he wrote the four propositions but then he says that for his dissent, his approach primarily concerns the fourth point. Are you going to call him out for only focusing on one proposition in his dissent?


jimmy the one said:
guru 1: Here we see Breyer and the other 3 dissenting Justices agreeing that ALL THREE Heller opinions issued that June day in 2008, all concur with the individual right interpretation.




Yes, certainly.

Breyer, for support of his statement that the right is individual in his proposition #1 cites, "See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting)".

That means Breyer is saying his statement in #1 AND the majority opinion at page 22 AND Stevens' dissent at page 1, ALL stand in alignment on this singular point, each of the three opinions represent the exact same statement in law, that the right recognized and secured by the 2nd Amendment is an individual right.

THIS IS WHY I SAID THAT HELLER WAS 9-0 ON THE SINGULAR POINT OF THE INDIVIDUAL RIGHT!


jimmy the one said:
guru 2: The four dissenting Justices all agree that the individual right interpretation is the only interpretation represented in the Court's precedent.

guru 3: The four dissenting Justices all agree that THE ENTIRE COURT AGREES WITH THOSE STATEMENTS.




Yes, of course! . . . Breyer and the Justices who joined him certainly said that the individual right interpretation was the ONLY interpretation represented in the Court's previous RKBA/2ndA decisions and all three Heller opinions. What does, "based on our precedent and today’s opinions, to which I believe the entire Court subscribes . . . The Amendment protects an “individual” right . . . " mean to you?


Now, to address you accusing me of "fraud" for not including propositions #2, #3 and #4 . . . My point was confirmed / proven by Breyer's proposition #1, it was all I needed to make and conclude my argument.

My point didn't need #2 or #3. The right being individual is not related to the perpetuation of the general militia principle or dependent on any examination or interpretation or enforcement of the general militia principle.

Any separate analysis of the object of the 2nd Amendment demanded by #2 or #3 might speak to something like the types of arms that are protected by the 2nd Amendment, (militia useful arms) but that would have no effect on the basic, incontrovertible fact that the right to keep and bear arms exists and is possessed by the individual citizen.

Neither was I arguing the individual right to arms (as recognized and secured by the 2nd Amendment) is an absolute right above any government regulation, so Breyer's #4 was of zero significance to my point.

Please, reread the following as many times as you need for it to sink in . . .

That the right is indisputably individual is not diminished or negated by me not taking special notice of #2, that the fundamental object of the 2nd Amendment is to perpetuate the general militia concept.

That the right is indisputably individual is not diminished or negated by me not taking special notice of #3, that when examined, the 2nd Amendment must be applied and enforced with the intent to preserve the general militia concept.

That the right is indisputably individual is not diminished or negated by me not taking special notice of #4, that it is a fundamental principle that no rights are absolute in an ordered society.

--------------


As far as your histrionic, unhinged rant in the middle of your post goes, if you get that upset over a debate on a stupid anonymous message board, maybe you should take a break.

Response to Surf Fishing Guru (Reply #38)

Response to Post removed (Reply #40)

Response to Post removed (Reply #41)

Surf Fishing Guru

(115 posts)
39. Sorry, not sorry, sanctimonious is what I do . . .
Tue Mar 15, 2022, 11:44 PM
Mar 2022
jimmy the one said:
As far as the sanctimonious advice to abandon gun control and face guru's brand of pro gun idiocy, not gonna happen. The truth will remain intact for those who seek it, even when egregious adulterations and distortions occur.



It was an honest statement about the current state of the RKBA/2ndA in SCOTUS with NYSRPA v Bruen, and the outlook for gun laws. How SCOTUS is going to rule is not in doubt, gun control states are in panic mode trying to rewrite their gun laws before the crap hits the fan.


jimmy the one said:
guru: Do you really not know you are arguing a interpretation nobody attaches themselves to anymore?

Go look up the word 'nobody'.




Who besides internet message board blowhards like you, stuck in a 1987 time warp are arguing the "militia right" to defend gun laws?

When I say 'nobody', I mean nobody who's anybody, is arguing it in a court of law . . .

The lower federal courts have absolutely abandoned it, after Heller, the Circuit courts developed a SCOTUS ignoring "two-step inquiry" . . . Under this process, those lower federal courts first decide if the challenged law burdens / implicates conduct protected by the Second Amendment. If they conclude the law does infringe on the RKBA, they proceed to the second step, deciding how severe the infringement is and whether that infringement it is really worth worrying about.

No surprise, that question is always answered the same; NO PROBLEM and the court declares the gun control law is absolutely needed for public safety. They then proceed to invent creative ways to explain why the violation of the right must be allowed and they never fail saying the RKBA just doesn't matter -- their score for upholding gun control is an amazing 50 - 0!

This scheme is on death watch; that's why I was telling you to prepare mentally for gun control being decimated.

Have you been following what's going on with SCOTUS and NYSRPA?

Did you listen to the oral arguments?

.

jimmy the one

(2,708 posts)
26. a blast from the past
Mon Mar 14, 2022, 09:07 AM
Mar 2022

Seems I have encountered surf guru before, 2015. Have a nice trip down memory lane guru.

https://www.democraticunderground.com/?com=view_post&forum=1172&pid=180850

Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The {2ndA} declares ‘the right of the people to keep and bear arms shall not be infringed.’ The reason is, ‘because a well regulated militia is necessary to the security of a free state.’
. . . The provision of the Constitution declaring the right to keep and bear arms was probably intended to apply to the right to bear arms for such {militia related} purposes only, and not to prevent Congress or legislatures from enacting laws to prevent citizens from going armed. A different construction however has been given to it.” (1832)


Justice Joseph Story, 1833: .. among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.
There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html

Which clause was Story writing of in the last sentence? the militia clause of course.
If story believed there was an individual right to keep & bear arms disconnected from militia, his above sentence would be contradictory to that belief - 'the people' then could be 'duly armed' by simply owning guns with no militia obligation. But that is what story is worried about, that 'the people' simply owning guns outside militia would NOT be duly armed without some organization/militia.
Scalia in heller twisted these Joseph Story quotes 1833 into support for the individual rkba!

Story cont'd: The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.
.. 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; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.


Story, in the same paragraph, praised the militia and 'the people' for essentially the same thing, defense against - 'the usurpation and arbitrary power of rulers'... more evidence in context he synonymously equated militia & 'the people'. The 'people' individually armed yet unorganized, would be no match for the 'arbitrary power of rulers' with tyranny in mind.

Wm Rawle, 1825: In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed
http://www.constitution.org/wr/rawle_10.htm

A corollary is of course, derived from a higher rule or law.
Scalia in heller twisted wm rawle into being supportive of the individual rkba.

jimmy the one

(2,708 posts)
27. scalia erred in heller -1
Mon Mar 14, 2022, 09:57 AM
Mar 2022

Scalia in heller: See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm);.. in the Declaration of Right: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” (1689). This right has long been understood to be the predecessor to our Second Amendment.. It was clearly an individual right, having nothing whatever to do with service in a militia.

Scalia above cited Joyce Malcolm and the english 1689 bill of rights, claiming she & it provided for an individual rkba. A British consortium of 21 english scholars disagreed, so much so that scalia omitted malcolm's above, in the subsequent related 2011 mcdonald ruling:

Amici Curiae (21 british scholars) have an interest in the (2008 scalia led supreme) Court having a well-informed and accurate understanding of the Anglo-American tradition to “have arms” from which {2ndA} originated:
The US Supreme Court correctly found that the English right to “have arms” was an expression of the same right that has “long been understood to be the predecessor to our Second Amendment.”.


contrary to discredited scholarship upon which Heller [decision] relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”).
Rather, it referred to a right to possess arms in defense of the realm. The “have arms” provision in the [1689] English Declaration of Rights .. provided two protections to the individual. First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders..


Where the Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading “individual” to mean “private,” “defence” to mean “defense against harm by private individuals acting for private purposes” and equating “self-preservation” with the modern usage of the term “self-defense.”
In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point. The origins of [2ndA] in the English right to “have arms” demonstrate that this right of self-preservation/self-defense gives individuals the right to collectively defend their public interests against organized assault or tyranny, not only in case of a foreign invasion, but, in 1689, in the event of a Catholic plot to overthrow English Protestants. Moreover, the right of “self-preservation” was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise.


__________________________________________
Justice Scalia ruled (in heller), in order to distance 'well regulated' from conferring any restrictions upon the militia or firearms: ".. the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.

Yet the articles of confederation separated 'well regulated' from 'disciplined', which counters Scalia's contention:

Articles of Confederation (1777-87), VI: .. but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered...

The articles contend well regulated and disciplined are two separate ideas, contradicting Scalia's definition.
If 'well regulated' implied nothing more than the imposition of proper discipline and training as scalia ruled, why do the articles of confederation separate 'well regulated' and 'disciplined'?
Because 'well regulated' had a different connotation than 'disciplined'.

Webster's 1828 dictionary: REGULATE 1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.
3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.

________________________________________

jimmy the one

(2,708 posts)
17. mel's smoke and mirrors
Thu Mar 10, 2022, 09:39 AM
Mar 2022

mel: Red flag laws are extremely dicey. See Caniglia v. Strom and before you comment about a right wing Supreme Court, this was a 9-0 decision.

Since you used a trumpian defense - my argument is all over the internet, go look - I decided to take your advice, since I was unfamiliar, & 'see' caniglia v strom. What I see, thru your smoke and mirrors, is a judgement for a warrantless search & firearm confiscation which resulted in a 9-0 scotus ruling that remanded the decision, not a decision that the 2ndA was being violated (despite typical rightwing spin). This would not pertain to searches done WITH warrants, but if there was extreme risk as deemed by on scene police, then firearms could be confiscated. You would rather let a raving person alone with guns because you did not have a warrant? The wife had called the police complaining her husband had threatened her, later recanting to some degree.

2015, Edward Caniglia and his wife, Kim Caniglia, had an argument in their home.. Caniglia .. retrieved a handgun. The gun was unloaded .. Mrs Caniglia said something to the effect of, "shoot me now and get it over with .. she was concerned that her husband may commit suicide. . Caniglia said that he agreed to be taken to a nearby hospital for psychiatric evaluation .. The officers, accompanied by Mrs. Caniglia, seized the two guns, magazines for the guns, and ammunition... both Mrs. Caniglia and Caniglia attempted to retrieve the guns.. Caniglia filed suit against the police .. Caniglia alleged that the defendants had violated Caniglia's 2nd Amendment and 4th Amendment rights and that they had violated state law by seizing his firearms, ammunition, and person. The police returned the guns to Caniglia without a court order in December 2015.
U.S. Court of Appeals 1st Circuit affirmed - holding that the police officers' actions did not exceed the scope of their responsibilities..
In a unanimous opinion, the {supreme court} vacated the Court of Appeals 1st Circuit's ruling and remanded the case for further proceedings, holding that neither the holding nor logic of Cady (1972) justifies such warrantless searches and seizures in the home.
https://ballotpedia.org/Caniglia_v._Strom

kavanaugh, 1921 scotus ruling: I join the Court’s opinion in full. I write separately to underscore and elaborate on THE CHIEF JUSTICE’s point that the Court’s decision does not prevent police officers from taking reasonable steps to assist those who are inside
a home and in need of aid.... 4th Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” As the constitutional text establishes, the “ultimate touchstone of the 4th Amendment is reasonableness. .. But drawing on common-law analogies and a commonsense appraisal of what is “reasonable,” the Court has recognized various situations where a warrant is not required”


This was not a decision on the validity of red flag laws, if you clear away mel's smoky mirrors.

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