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Old 09-08-2019, 08:20 PM
Abatis is offline
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Join Date: Apr 2011
Location: Upper Bucks County, PA.
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Quote:
Originally Posted by Hamlet View Post
To the contrary, colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home.
This is Breyer dissembling. He's already stipulated that he shall, "assume with the majority that the Amendment, . . . furthers an interest in possessing guns for purposes of self-defense," but he needs to argue that the "in the home" aspect can be strictly regulated. He argues the "self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest,". This carving out of a diminished right within a diminished right is done of course to allow him to argue for his goofy interest-balancing inquiry that would of course find the DC statutes constitutional.

His entire argument fails because the laws he cites were state and city laws that were not subject to any 2nd Amendment application. So while any court would have thrown out any 2nd Amendment claim to invalidate these laws, Breyer cites these laws to invalidate 2nd Amendment protections.

Quote:
Originally Posted by Hamlet View Post
He did. As he explained in his dissent.

"The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice."
Stevens is a schizophrenic constitutional taffy-puller. He cites and gloms on to Harlan's Poe dissent and the penumbral rights theory at the drop of a hat which is based on this premise that he says here is non-existent. He quote's Harlan in his Roe concurrence (emphasis added):
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."
He buys in completely to a theory of rights and their protection to recognize and protect unenumerated rights from, "substantial arbitrary impositions and purposeless restraints" that "require particularly careful scrutiny of the state needs asserted to justify their abridgment." but he excludes from that protection a right that is not only specifically enumerated in the Bill of Rights but specifically mentioned in the foundational statement of penumbral rights theory.

Worse, if his interpretation of the 2nd Amendment is true and legally correct, the foundation for the penumbral rights theory is infirm if not invalid. If a link in the rational continuum of liberty can be cut out, then the penumbral rights theory fails.

Sure would be ironic if the rights to abortion and contraception and LGBTQ rights could all be extinguished because of liberals success in legislating and Courts affirming, their hostility for the 2nd Amendment and RKBA.

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Last edited by Abatis; 09-08-2019 at 08:25 PM.