supreme court wrong: no individual right to a gun versus the state

[dairygirl4u2c]

supreme court wrong: no individual right to a gun versus the state

the supreme court recently said there is an individual right to a gun versus the state. 

historically the phrase "bear arms" is a military term, and taken altogether, the second amendment protects militia rights, not individual rights. 

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

Read more: http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856#ixzz3pDs7PLdx

"Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weapon—and courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia. As the Tennessee Supreme Court put it in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

"The NRA was founded by a group of Union officers after the Civil War who, perturbed by their troops’ poor marksmanship, wanted a way to sponsor shooting training and competitions. The group testified in support of the first federal gun law in 1934, which cracked down on the machine guns beloved by Bonnie and Clyde and other bank robbers."
 

"For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon."

http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment

"Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”

"But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)"

"Until recently, the judiciary treated the Second Amendment almost as a dead letter. Many courts concluded that citizens have no constitutionally protected right to arms at all, and the federal courts never invalidated a single gun control law"

"As America grapples with a relentless tide of gun violence, pro-gun activists have come to rely on the Second Amendment as their trusty shield when faced with mass-shooting-induced criticism. In their interpretation, the amendment guarantees an individual right to bear arms—a reading that was upheld by the Supreme Court in its 2008 ruling in District of Columbia. v. Heller. Yet most judges and scholars who debated the clause's awkwardly worded and oddly punctuated 27 words in the decades before Heller almost always arrived at the opposite conclusion, finding that the amendment protects gun ownership for purposes of military duty and collective security. " 

 

[little2add]

The Supreme Court has been wrong before.  IE: slavery, abortion, gay marriage, obamacare... 

[Socrates]

 

The Supreme Court has been wrong before.  IE: slavery, abortion, gay marriage, obamacare... 

 

 

However, in this case, it has ruled correctly.

Politico is wrong.

(Founding Fathers on guns)

[dairygirl4u2c]

there might be a few nuggets hard to argue against in the founding fathers link. but most could be put in the realm of the necessity of the militia....
 

"To disarm the people...s the most effectual way to enslave them."
- George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

"I ask who are the militia? They consist now of the whole people, except a few public officers."
- George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

the second one here is even explicit of the militia. they go on to say it consists of the whole people, only because states required everyone to have a gun. if the state doesnt require everyone to have a gun, the militia still exists. 

the 1st is more general and could be everyone having guns. but then again, it's general enough that the need for a militia might cure the concerns he's talking about. 

these are just a few examples. 

i notice none of them  try to argue about what "bear arms" really means, that is only with the militia. 

As the Tennessee Supreme Court put it in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

Edited October 23, 2015 by dairygirl4u2c

[Winchester]

I don't get my rights from paper scribbled on by dead slave owners. The Supremes can go to the Special Hell, regardless of their opinion.

 

Apart from that, what complete excrement that article is. The feds have enumerated powers. Lacking an enumerated power, they have no right to infringe on the right of the people to keep and bear arms. The conversation really should end there. The second amendment cannot by any stretch of the imagination be seen as granting a right. It discusses a right as though it already existed, and mentions that the feds may not infringe upon the right.

 

[dairygirl4u2c]

that's why i made mention of no individual right against the state. federal power is something else and as i said elsewhere they are more restricted. 

and even if you found a real nugget in that list of the founding fathers, those are just individual thoughts. the constitution itself says what it says, and history argues against what modern sensibility says it means per hte second amendment. 

anyway, also, ask any run of the mill libertarian. the bill of rights is an indictment against the federal government. suddenly we're suppose to believe the second amendment is against the states?

Edited October 23, 2015 by dairygirl4u2c

[Winchester]

that's why i made mention of no individual right against the state. federal power is something else and as i said elsewhere they are more restricted. 

and even if you found a real nugget in that list of the founding fathers, those are just individual thoughts. the constitution itself says what it says, and history argues against what modern sensibility says it means per hte second amendment. 

anyway, also, ask any run of the mill libertarian. the bill of rights is an indictment against the federal government. suddenly we're suppose to believe the second amendment is against the states?

You can avail yourself of the ratifying convention notes, too. It's not like the constitution stood alone. It's quite explicit that the federal government would be a general government of enumerated powers, not a national government of unlimited powers.

I think you're trying to say that the bill of rights of the US constitution doesn't apply to the several states, leaving each state free to create laws in accord with its own constitutions. That's correct (although some believe the 14th incorporates the bill of rights).

[Socrates]

Any substantial reading of the founding fathers and the history of this republic's founding should quickly put to rest the notion put forth by those on the illiberal (and evidently illiterate) Left that the Second Amendment does not protect the right to individuals to keep and bear arms, but merely some vague "collective right" of the state governments.

Apparently, they're not not only ignorant of history and logic, but of basic human grammar as well.  The second amendment states that "the people" have a right to keep and bear arms.  It doesn't say "the militia" or "the states" have that right,  but the people.  And "the people" means the same thing as it refers to elsewhere when stating their rights - individual citizens.  It means all of the people, not merely some of them.  The whole idea of "collective rights" is bogus, and not found elsewhere in the Constitution.  

And, if you study the thought of the founding fathers on this matter, you'd know that the state militias were not envisioned as some entity separate and distinct from "regular civilians," but were to consist of every able-bodied citizen capable of fighting.  (See the cited Mason quote.) Most of the founders were highly suspicious of a permanent standing army, which they saw as potentially being used by the government to oppress the citizenry, much as the British army had oppressed the American colonists.  The idea was that the ordinary citizens would in essence be the military, and this would be a bulwark against government tyranny, both foreign and domestic.  Members of militias owned their own weapons - they weren't owned by the government. Also, an amendment essentially saying only that the army has a right to have weapons would be pointless and unnecessary. 

"The right of the people to keep and bear arms" means in modern parlance "the right to keep and carry weapons."  It's pretty straightforward; it's not rocket science or something mysterious and cryptic.

Edited October 25, 2015 by Socrates
spelling

[dairygirl4u2c]

soc just called illiterate half the supreme court and traditional conservatives, like chief justice burger. remember it was conservatives who argued the state militia argument historically. 

if people wanted to defend the individual rights theory, theyd be better off trying to argue "bear arms" doesn't connote the military. traditional usage back in the day the way it was used in the amendment connotes military use, so i'm sure that's why ive never seen it successfully argued that way. 

i wasn't sure at first, but it was actually a supreme court case after heller that said the second amendment applies to the states via the 14th amendment. they knew as i was arguing that the amendment itself coudln't prohibit states as the bill of rights is an indictment against the feds. but, to rely on the 14th, they would have to consider the right to a gun to be pretty fundamental of a civil liberty, and i just dont see that it's so fundamental as something like free speech. 

[Peace]

Any substantial reading of the founding fathers and the history of this republic's founding should quickly put to rest the notion put forth by those on the illiberal (and evidently illiterate) Left that the Second Amendment does not protect the right to individuals to keep and bear arms, but merely some vague "collective right" of the state governments.

Apparently, they're not not only ignorant of history and logic, but of basic human grammar as well.  The second amendment states that "the people" have a right to keep and bear arms.  It doesn't say "the militia" or "the states" have that right,  but the people.  And "the people" means the same thing as it refers to elsewhere when stating their rights - individual citizens.  It means all of the people, not merely some of them.  The whole idea of "collective rights" is bogus, and not found elsewhere in the Constitution.  

And, if you study the thought of the founding fathers on this matter, you'd know that the state militias were not envisioned as some entity separate and distinct from "regular civilians," but were to consist of every able-bodied citizen capable of fighting.  (See the cited Mason quote.) Most of the founders were highly suspicious of a permanent standing army, which they saw as potentially being used by the government to oppress the citizenry, much as the British army had oppressed the American colonists.  The idea was that the ordinary citizens would in essence be the military, and this would be a bulwark against government tyranny, both foreign and domestic.  Members of militias owned their own weapons - they weren't owned by the government. Also, an amendment essentially saying only that the army has a right to have weapons would be pointless and unnecessary. 

"The right of the people to keep and bear arms" means in modern parlance "the right to keep and carry weapons."  It's pretty straightforward; it's not rocket science or something mysterious and cryptic.

Well you have to admit - the language in the constitution is ambiguous. They could have easily used language that spelled out their intent more clearly. I think that half the members at the Convention were lawyers. They really could not come up with language that made it more clear that the right to bear arms is an individual right? I bet that me and you right now can come up with language that is more clear than what is in the document. The other side has a decent argument, even if they are not ultimately correct.

I still find this "what did the founding fathers think?" or "what did the framers think?" way of argument concerning the constitution you advocate to be specious. I think that there were roughly 70 men at the Constitutional Convention and 40 who signed the original document. If you really want to go down that avenue to support your position, then you need to post what all 70 thought. You really think that all 70 thought the same exact thing? How do you know which view ultimately prevailed?

You need to see what all 70 stated at the Convention concerning the issue discussed (if any such documentation exists). Selecting 5 or 10 men and pointing to a website in the year 2015 that selectively discusses their views on a particular matter or posts a few quotes of theirs does not seem like very convincing evidence at all. Even if those were their views, how do you know that the language in the ratified document was not changed to compromise with people who had competing views? How do you know that those 5 or 10 men were present at the time the relevant language was agreed upon, or debated? Some of the so-called Founding Fathers were not even at the Convention. Your argument seems to be "Well. Here is what George Washington and Thomas Jefferson thought about it - therefore here is what the language in the constitution means." It is not a very persuasive line of argument in my view.

[Socrates]

Well you have to admit - the language in the constitution is ambiguous. They could have easily used language that spelled out their intent more clearly. I think that half the members at the Convention were lawyers. They really could not come up with language that made it more clear that the right to bear arms is an individual right? I bet that me and you right now can come up with language that is more clear than what is in the document. The other side has a decent argument, even if they are not ultimately correct.

 

I thought you clearly stated in another thread that you believe the second amendment protect's an individual's right to keep and bear arms.  Did you change your position, or are you just arguing for the sake of arguing?

I honestly don't see what's so ambiguous about the second amendment.  What's so ambiguous about "the right of the people to keep and bear arms shall not be infringed"?  The obvious meaning would seem to be as any other statement concerning a "right of the people" - it's a right of all the people (American citizens), not merely some of the people.

It seems rather that some are straining to find ambiguity, who would seek to deny the people the right to keep and bear arms.  (Like Bill Clinton quibbling over the meaning of the word "is.")

 

I still find this "what did the founding fathers think?" or "what did the framers think?" way of argument concerning the constitution you advocate to be specious. I think that there were roughly 70 men at the Constitutional Convention and 40 who signed the original document. If you really want to go down that avenue to support your position, then you need to post what all 70 thought. You really think that all 70 thought the same exact thing? How do you know which view ultimately prevailed?

You need to see what all 70 stated at the Convention concerning the issue discussed (if any such documentation exists). Selecting 5 or 10 men and pointing to a website in the year 2015 that selectively discusses their views on a particular matter or posts a few quotes of theirs does not seem like very convincing evidence at all. Even if those were their views, how do you know that the language in the ratified document was not changed to compromise with people who had competing views? How do you know that those 5 or 10 men were present at the time the relevant language was agreed upon, or debated? Some of the so-called Founding Fathers were not even at the Convention. Your argument seems to be "Well. Here is what George Washington and Thomas Jefferson thought about it - therefore here is what the language in the constitution means." It is not a very persuasive line of argument in my view.

Really?  So we need the recorded thoughts of all 70 present at the Constitutional Convention to make any educated judgment as to the meaning of the Second Amendment?  (Or, I suppose, any other amendment, for that matter?)

I linked to some statements of some of the founding fathers, including prominent framers of the Constitution to give an idea of what the prevailing thoughts were among the founders at that time regarding the right to keep and bear arms.  (There are whole books on this topic, but I was simply providing what a quick web search could find.)  The meaning becomes clearer when you study how the state militias of the time was comprised, and the philosophy behind them.

Please feel free to provide examples of the thought of framers of the Constitution, or founding fathers, who opposed the right of individuals to keep and bear arms, if you can find them.  (If this was as contentious an issue during the Convention as you suggest, then surely there must be some writings from the time concerning it.  And if such writings exist, you'd think surely the anti-gun crowd would eagerly provide them for all to see!)

Simply dismissing what historical evidence is presented, without providing one single shred of counter-evidence, does not make an argument at all, imho.  It's nothing but denial or negation.

Edited October 29, 2015 by Socrates

[Winchester]

Supreme Court rulings are tertiary sources. They are virtually worthless in determining original intent (or the more clear original meaning). 

It is abundantly clear that the constitution was sold as a document creating via the power of the states a general government of enumerated powers. From this,  it becomes easy to see that the second amendment needs no analysis. It's redundant. That the supremes opine on its meaning shows they know as much about the constitution as the average American. Which is to say they know only nationalist myth. 

[Peace]

I like you Socrates. You usually have something intelligent to say, even when you are wrong.

I thought you clearly stated in another thread that you believe the second amendment protect's an individual's right to keep and bear arms.  Did you change your position, or are you just arguing for the sake of arguing?

I believe that the second amendment protects an individual's right to own guns. I have not changed my position, but I think the way you talked about the issue in your previous post was unwarranted. You seemed to suggest that the isssue is so obviously clear that only an ignorant or a fool could conclude otherwise. I do not think that is the case, which is why I objected to your comments.

I honestly don't see what's so ambiguous about the second amendment.  What's so ambiguous about "the right of the people to keep and bear arms shall not be infringed"?  The obvious meaning would seem to be as any other statement concerning a "right of the people" - it's a right of all the people (American citizens), not merely some of the people.

It seems rather that some are straining to find ambiguity, who would seek to deny the people the right to keep and bear arms.  (Like Bill Clinton quibbling over the meaning of the word "is.")

Well here is what the text says:

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.

1) The clause starts off with the phrase "A well regulated militia, being necessary to the security of a free state". The purpose seems rather clear - "the people" are to have weapons so as to support a military. It does not say anything about individuals owning weapons for personal defense or hunting.

2) "The people" is not a phase that must include "each and every person". I think you would concede this as well - each and every person would include rapists and bank robbers, would it not? When I hear the phrase "the people" the immediate thing that comes to mind is a group of people, or the public at large. If they had intended to say "every person" or "individual citizens", how hard would it have been for them to write that?

3) If you were talking about buying a gun to keep in your home, to protect your family, or to go hunting with, would you use the phrase "bear arms"? Would you say "Yo homie. I am going down to the gun store so I can bear some arms and go hunt some deer this weekend"? No. Of course you would not. When you use the term "bear arms" the thing that immediately comes to mind is military action. The phrase in itself does not connote anything concerning owning a gun for personal defense or hunting.

Really?  So we need the recorded thoughts of all 70 present at the Constitutional Convention to make any educated judgment as to the meaning of the Second Amendment?  (Or, I suppose, any other amendment, for that matter?)

That is not what I said. I said that if the primary basis of your argument is extraneous statements by the "founding fathers", then you need to do a whole lot more than post some web-site quotes from 5 or 10 people out of 70 for anyone to start to take that line of argument seriously. You need to engage in serious analysis, and present some serious evidence before you should expect a need for anyone to take it seriously or respond to it. You have not done so, in my view.

Take a look at the majority decision in District of Columbia v. Heller. The opinion uses darn near every piece of evidence under the sun except the type of "what did the founding fathers say in XYZ speech" evidence you offer. Why do you think that is? Could it be, perhaps, because that type of evidence is not worth anything?

I linked to some statements of some of the founding fathers, including prominent framers of the Constitution to give an idea of what the prevailing thoughts were among the founders at that time regarding the right to keep and bear arms.  (There are whole books on this topic, but I was simply providing what a quick web search could find.)  The meaning becomes clearer when you study how the state militias of the time was comprised, and the philosophy behind them.

Feel free to provide additional information.

Please feel free to provide examples of the thought of framers of the Constitution, or founding fathers, who opposed the right of individuals to keep and bear arms, if you can find them.  (If this was as contentious an issue during the Convention as you suggest, then surely there must be some writings from the time concerning it.  And if such writings exist, you'd think surely the anti-gun crowd would eagerly provide them for all to see!)

Simply dismissing what historical evidence is presented, without providing one single shred of counter-evidence, does not make an argument at all, imho.  It's nothing but denial or negation.

If you want historical evidence on the other side of the coin you need only read the dissenting opinions in District of Columbia v. Heller.

Edited October 29, 2015 by Peace

[Winchester]

Kinsella provides what the Supremes of course didn't: https://www.lewrockwell.com/lrc-blog/the-great-gun-decision-dissent/

 

When supposed "historical" statements about the constitution completely skirt a mention of the enumerated powers, we know that the dissent is not to be taken seriously. It's a shame that a privately employed attorney must provide the arguments the Supremes are incapable of providing.

Edited October 29, 2015 by Winchester

[dairygirl4u2c]

the piece winchester cited said what i did "Second, as Kevin Gutzman notes, the Bill of Rights provides limits on the power of the federal government–not states, and not DC. So, as with the majority in the Kelo case, the dissent would have had the right result for the wrong reasons." 

he said hte dissent was right just for the wrong reasons. the second amendment doesn't apply to states. if you have to resort to the 14th amendenmt, you are inherently implying that the second amendment doesn't stand on its own merits as a rule against states. all the arguing about what the second amendment means is irrelevant, even if the conservatives are right about its general interpretation. 

Edited October 29, 2015 by dairygirl4u2c