Straight Dope Message Board

[Abatis]

Originally Posted by ElvisL1ves

By a 5-4 vote along partisan lines and contrary to precedent.

What was contrary to precedent?

I know that was the party line coming from the liberal media and DailyKos and ThinkProgress etc. but have you ever read Breyer's dissent (which the other liberals signed on to)?

He said that the individual right interpretation is the starting point for understanding and applying the 2nd Amendment. He says the individual right interpretation was the holding that has been represented consistently in the Supreme Court's precedent and is represented in all three opinions issued that day and that the entire Court subscribes to the individual right interpretation and then, just to be clear, Breyer cites the majority opinion and Stevens' dissent as equal and also agreeing on this point.

"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)."

So, what precedent was abridged?

No doubt Heller disrupted / abrogated lower federal court opinion that had went off the constitutional rails in 1942, (inserting the "state's right" and "militia right" perversions), but lower court opinion is not "precedential" for the Supreme Court. 251

[Hamlet]

Originally Posted by Abatis

Wrong question . . .

Where was the power granted to the federal government to allow it to condition the right to self defense, to allow the government to exclude the use of firearms?

The same powers that allow current gun control legislation, the Commerce Clause.

Originally Posted by Abatis

What was contrary to precedent?

"The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses."

From Steven's dissent

Originally Posted by Abatis

He said that the individual right interpretation is the correct one, that the individual right interpretation was the holding that has been represented consistently in the Supreme Court's precedent and represented in all three opinions issued that day -- that the entire Court subscribes to the individual right interpretation and then, just to be clear, Breyer cites the majority opinion and Stevens' dissent as equal and also agreeing on this point.
"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)."

I like how you have the part of Breyers introduction where he says he has four propositions, and then just cite the one you like.

Here's the rest:

"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, 307 U. S. 174, 178 (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, supra, at 178.

(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) ; ante, at 22, 54 (opinion of the Court)."

Also, as Stevens says: "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." 252

[QuickSilver]

Originally Posted by Abatis

Correct, the framer's constitutional militia is no more . . . and logically, I can see how you can feel that means that the "unorganized militia" is zombie without a soul and is something we should relegate to the status of burning witches and bloodletting. No matter how strongly one feels that to be true, that is a conclusion that does not reside in the realm of constitutional law right now.

Generosity has nothing to do with it. The right does not exist because of any benevolence of the citizens or the government. Even if we all agree that the 2nd Amendment's purpose, to perpetuate the general militia principle is moot today, that does not impact the people's right to arms because the citizen has always possessed the right to arms and the right has always existed without reference to or reliance on the Constitution or anything established by the Constitution.

Much of the disparity in federal and state laws is a vestige of the 2nd Amendment not being enforceable on the states. No provision of the Bill of Rights was enforceable on state laws until the 14th Amendment was ratified (1868) and the 2nd wasn't "incorporated" until 2010 . The legal operation of challenging state and local laws has been in a holding pattern since then and many people have many opinions why. Pretty much all agree that the pace of 2nd Amendment cases accepted by SCOTUS will pick up after Kennedy has left the Court.

But if Homer was to say that he thinks the government should amend or rescind Newton's Law of Gravity so fewer people would be injured or killed in falls, we would say he doesn't understand that a "law" can recognize a "thing" exists without one needing to believe the "thing" was created, granted, given or established by the law and worse, thinking that changing or removing words in the law would change the "thing" . . . .

Correct.

Is your right to life an enforceable right in Canada? IOW, can the government be held responsible for a criminal act against you?

I know in the USA, it is a fundamental principle that no government agent can be held responsible for any citizen's personal security, even if the agent (police) are aware of an imminent threat to you.

So, essentially, there is no enforceable right to life in the USA, there is no right to be or feel safe. In the USA, your right to life is the right to defend your life and be held immune from arrest and criminal prosecution for a "justifiable" homicide.

And your "gun culture" comment puzzles me.

Again,the right to life is really the right to defend your life because government takes no responsibility for a criminal attacking you. When one fully understands the UNALIENABLE right to life, one understands that the most brutal violation a government can do (outside of genocide or other extra-judicial execution) is to force citizens to be defenseless. It is an especially egregious violation if the government abdicates its duty to prosecute and remove criminals from society and forces citizens to face them empty-handed.

You call out a "gun culture" that promotes guns, I denounce the government's hug-a-thug culture that is nothing but a system that just processes criminals thorough a revolving door, back out into society.

This is like the proverbial dissection of the frog in high school bio lab: There is nothing new to be learned, and the frog needlessly dies of it.

The differences between gun rights supporters and gun control supporters are fundamental and irreconcilable as I see them. I'm encouraged, however, by the socio-political trend leading away from the former, towards the latter.

That folks continue to insist that right to life can only be assured at the point of a gun, despite abundant evidence to the contrary, tells me that they simply love guns. Their professed love for unalienable rights extends only for their own life, without the slightest consideration for the society in which they live. The same society and government on which they depend for so many things, which demonstrably ensure their right to life, on a daily basis; Far more so than their guns. It would be far more honest if they just came out and admitted that they are intentionally taking advantage of the social safety offered to them by society without consideration for others, and using anachronistic justifications to do so. I won't hold my breath. Energy is far better spent on continued advocacy in line with those who believe that civil society without guns is a far better way of assuring the right to life for all. 253

[DrDeth]

Originally Posted by ElvisL1ves

By a 5-4 vote along partisan lines and contrary to precedent. You surely can understand how a ruling can be wrong and wrongly arrived at, can't you?

....

What Precedent?

https://www.britannica.com/topic/Second-Amendment
Until 2008 the Supreme Court of the United States had never seriously considered the constitutional scope of the Second Amendment. In its first hearing on the subject, in Presser v. Illinois (1886), the Supreme Court held that the Second Amendment prevented the states from “prohibit[ing] the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.” More than four decades later, in United States v. Schwimmer (1929), the Supreme Court cited the Second Amendment as enshrining that the duty of individuals “to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution” and holding that “the common defense was one of the purposes for which the people ordained and established the Constitution.” Meanwhile, in United States v. Miller (1939), in a prosecution under the National Firearms Act (1934), the Supreme Court avoided addressing the constitutional scope of the Second Amendment by merely holding that the “possession or use of a shotgun having a barrel of less than eighteen inches in length” was not “any part of the ordinary military equipment” protected by the Second Amendment.

Presser v. Illinois the Second Amendment prevented the states from “prohibit[ing] the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security So that's pretty close toHeller.

Do you mean Miller, which wasnt even defended? " the Supreme Court avoided addressing the constitutional scope of the Second Amendment"

So basically SCOTUS in Heller was following the precedent of Presser, however, in reality there had been no significant 2nd Ad cases up until Heller.

And Heller was caused by three cities deciding to push the boundaries are hard as they could by banning all handguns and for most purposes, all guns for home defense. DC, Chicago and to a lesser extent SF are the cause for Heller and rather than not liking "partisan lines" you should blame them for pushing the Supreme Court so hard it had to reluctantly rule on the 2nd.

And Heller is very reasonable. All it does it say you have the right to own a gun for sefl & home defense. It doesnt say you get to own machineguns or mortars or even "assault weapons". It doesnt allow concealed carry or many other things, and it explicitly allows for a whole range of gun control laws.

It was a good ruling and it's not gonna be overturned. 254

[DrDeth]

Originally Posted by Hamlet

The same powers that allow current gun control legislation, the Commerce Clause.

"The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption...."

Talk about bad decisions. Miller wasnt even defended, Miller having " kicked the bucket, 'e's shuffled off 'is mortal coil, run down the curtain and joined the bleedin' choir invisible!!".

Because as has been pointed out, if Miller had been defended, the Court would have ruled the other way- a sawed off shotgun actually having been a normal weapon used by calvary during the Civil war, etc.

So the only reason we have Miller- a bad decision- is because Miller died. Otherwise his right to own a sawed off shotgun would have been Oked by SCOTUS. 255

[Sitnam]

If I could travel back in time and ask the Founding Fathers everything, it would change nothing for me and I seriously doubt it would change any minds.

They were ahead of their times, but their times are long past. How you feel about white men having a disproportionate amount of power will dictate which half of the previous sentence you focus on. 256

[DrDeth]

Originally Posted by Sitnam

If I could travel back in time and ask the Founding Fathers everything, it would change nothing for me and I seriously doubt it would change any minds.

They were ahead of their times, but their times are long past. How you feel about white men having a disproportionate amount of power will dictate which half of the previous sentence you focus on.

"white men having a disproportionate amount of power "? disproportionate ? There weren't many asians or latinos or free blacks back then. Since free whites were about 99% of the voting blocs back then, their power was pretty proportionate .

And not much left in the Constitution gives a edge to white males anymore. 257

[Sitnam]

Originally Posted by DrDeth

"white men having a disproportionate amount of power "? disproportionate ? There weren't many asians or latinos or free blacks back then. Since free whites were about 99% of the voting blocs back then, their power was pretty proportionate .

And not much left in the Constitution gives a edge to white males anymore.

If you think something like the Tea Party movement isn’t about preserving white male privilege you have not been paying attention. Therein lies the adoration.

In casual conversation with modern Americans the Founding Fathers wouldn’t come off as worthy of respect. They were exceptional for their time, take them out of it and they are not.

Which is all something to remember every time you see a 250 year old quote used to reinforce an opinion about a current situation. 258

[ElvisL1ves]

Originally Posted by DrDeth

Miller wasnt even defended

The individual-rights concept not having been invented yet, and there being no significant group yet created to support it. It would have been like a legal argument that the sky is actually green.

Because as has been pointed out, if Miller had been defended, the Court would have ruled the other way

It has been asserted, not "pointed out", and unfortunately not with any historical support.

To clarify, Miller confirmed what had been the common understanding that the Second has no applicability outside militia use. Heller reversed that. 259

[Hamlet]

Originally Posted by DrDeth

Talk about bad decisions.

He asked for precedent. Not precedent that you had to agree with the ruling. How cool if we could just pretend that court decisions that we disagree with simply don't count? 260

[Bone]

Originally Posted by Hamlet

"The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses."

When asked about what was contrary to precedent, why do you think citing a dissent is relevant?

The fact is, Heller was consistent with Miller. The idea that Heller reversed anything in Miller is false. Heller actually discusses Miller and addresses this directly. From the opinion itself:

Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “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.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

261

[Shodan]

Originally Posted by Little Nemo

If I'm understanding your posts, you believe the militia clause has meaning and affects the right.

But then I posed a set of question which would have one answer if the militia clause has meaning and a different answer if it does not. And all your answers are in line with the no meaning interpretation.

My answers are consistent with the interpretation that the militia clause cannot be used to infringe on the people's right to keep and bear arms.

To reiterate my position, I believe the militia clause is meaningless and the second amendment should be read as granting an individual right.

The 2A grants an individual right, and the militia clause cannot be used to infringe on it. Saying "you can't use this to infringe on a right" is different from saying it is meaningless.

Regards,
Shodan 262

[Little Nemo]

Originally Posted by Shodan

The 2A grants an individual right, and the militia clause cannot be used to infringe on it. Saying "you can't use this to infringe on a right" is different from saying it is meaningless.

I think I'm missing the distinction you're making. If the militia clause can't infringe on the individual right, then that seems to me to be equivalent to say it has no effect on the right. And if the militia clause has no effect, that seems to me to be saying it's meaningless in a legal sense. 263

[Bone]

Originally Posted by Little Nemo

I think I'm missing the distinction you're making. If the militia clause can't infringe on the individual right, then that seems to me to be equivalent to say it has no effect on the right. And if the militia clause has no effect, that seems to me to be saying it's meaningless in a legal sense.

Those are not equivalent. The militia clause can have purpose other than infringing on the individual right. You seem to be saying that the only purpose the militia clause can serve is as a restriction. But that's not accurate. 264

[Bone]

Originally Posted by Shodan

The 2A grants an individual right, and the militia clause cannot be used to infringe on it. Saying "you can't use this to infringe on a right" is different from saying it is meaningless.

It's a meaningful distinction - the first sentence is not correct. The 2nd Amendment does not grant any rights. SCOTUS has been consistent about this for it's entire history. 265

[Abatis]

Originally Posted by Hamlet

The same powers that allow current gun control legislation, the Commerce Clause.

I was asking about express powers, not powers that have been conjured into being through wide interpretation. It's is funny though, that for decades it has been claimed that the authority for gun control was the commerce clause but in nearly all cases* when said gun control was challenged, the government used Congress' power to regulate the militia as the justification (now of course invalidated). Can you explain that?

*exceptions being cases on actual commerce -- federal licensing of manufacturers, distributors, dealers -- and cases about dispossession, e.g., felon gun prohibitions etc., argued (successfully) that criminal activity negatively impacts interstate commerce.

Originally Posted by Hamlet

"The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, . . .

Absolutely NOT the holding of Miller, thus a lie and misrepresentation (which of course is a good summation of Stevens' dissent in general). Miller's entire focus was on the weapon and it's military / common defense usefulness. The right of Miller and Layton to possess and use a shotgun with a barrel length OVER 18 inches was never something the Court asked or answered. The Court's entire focus was placed on the shotgun with a barrel length LESS than 18 inches, and if that type of arm could be shown to be, "any part of the ordinary military equipment, or that its use could contribute to the common defense".

If the gun was of a type that is, "any part of the ordinary military equipment, or that its use could contribute to the common defense" then that gun would have "some reasonable relationship to the preservation or efficiency of a well regulated militia" and the NFA-34 would have been struck down.

To have 2nd Amendment protection, the citizen's USE doesn't need to be shown to be "for certain military purposes", the arm simply must be shown to be of a type that has military / common defense usefulness.

(Not forgetting the and/or, in common use by the citizens)

Originally Posted by Hamlet

but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Hilarious bullshit.

Originally Posted by Hamlet

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;

Well, as I said those judges served on lower federal and state courts, which are not "precedential" to the Supreme Court.

The "view" that those courts "relied" on was a misrepresentation of Miller that was inserted in the federal courts in 1942. In Cases v US and Tot v US they took Miller's explanation of the object of the 2nd Amendment and applied that to the pre-existing right to keep and bear arms. Those two cases birthed the "militia right" and "state's right" respectively, and those cases and those interpretations became the bedrock those "hundreds of judges have relied on", writing opinions each distancing themselves further and further from the Supreme Court's Miller holding.

It's like a bunch of drunks leaning on each other for support; well Heller knocked the legs out from under the strongest drunks named Cases and Tot and now we will watch all the drunks fall.

Originally Posted by Hamlet

we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980)

Another lie. The Lewis Court spent may words explaining how Lewis, (a convicted felon) could have regained his right to own a firearm. They laid out all the different scenarios that he could have followed and not one of them included or required Lewis to enroll in a militia. In Lewis, the Court only mentions Miller once, in a footnote, and only to note that: "These legislative restrictions on the use of firearms [felon dispossession] are neither based upon constitutionally suspect criteria nor do they trench upon any constitutionally protected liberties."

Well, that's to be expected because felon dispossession has nothing to do with the military usefulness of the weapon . . . OTOH, felon dispossession would have a different (or at least an additional) justification if Stevens was correct about a citizen needing to have a militia association to claim the 2nd Amendment, which the Court would certainly have explained, not completely ignored.

Felon dispossession was not an issue in Miller so why it was cited in Lewis is a mystery, but why Stevens had to misrepresent Lewis and say that Lewis affirmed Miller is not, Stevens is simply a full of shit liar.

Originally Posted by Hamlet

No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses."

And Stevens runs straight into the truth that the framers knew they weren't creating or granting the right. Stevens' dissent makes the right entirely dependent upon the 2nd Amendment and his restrictive interpretation of the words. The arguments against a bill of rights were focused on how any attempt to list or explain rights could be employed as a way to say "this is the full complement of rights" or that what they stated was the full extent of an enumerated right. It's not correct to say that the framers didn't want to "broaden the coverage" of the right, they knew if they called out certain uses, that would be interpreted as throwing all other uses into Congress' hands.

In Steven's mind, there is no way to have any right if it wasn't explicitly spelled out . . . OTOH, the lack of an expressly enumerated power does not limit the powers of government (Congress).

Stevens' argument follows the fears of adding a bill of rights, his arguments are exactly what the Federalists warned us about. Even more egregious, Stevens' dissent directly contradicts SCOTUS explanations of the right, Stevens' argument is that we use the words of the 2ndA to qualify and condition the right when SCOTUS has told us the right to arms is in no manner dependent upon the Constitution for its existence.



I address Breyer's dissent in my next post . . .

. 266

[Little Nemo]

Originally Posted by Bone

Those are not equivalent. The militia clause can have purpose other than infringing on the individual right. You seem to be saying that the only purpose the militia clause can serve is as a restriction. But that's not accurate.

I feel we're talking about the legal effects in this thread. The militia clause might serve some political purpose (perhaps it made the Bill of Rights more acceptable to people voting on them) but judges deciding cases wouldn't base their decisions on that.

If you're suggesting the militia clause might be adding something to the individual right, I'm not seeing how. If you concede an individual has the right to own and carry firearms in general then giving one reason why they might do so doesn't add to that right. A person might own a firearm to fulfill their duties in a militia. Or they might own a firearm for self-defense or for hunting or as a collectible item or for competitive shooting; none of these reasons are listed in the amendment. That's because if the individual right is established, it's not necessary to offer suggestions as to why somebody might want to exercise it.

In legal terms, it means a judge can't base a ruling on why a person owns or carries a gun (except if the purpose is criminal). A judge can't say "You aren't entitled to own this firearm because you would not be doing so in a manner that is conducive to the existence of a well-regulated militia." 267

[kirkrapine]

Originally Posted by Abatis

US citizens possess the right to arms because the United States is the only nation founded on the principle of unalienable rights. So while . . .

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

N.B.: That's not the Constitution, that's the DoI. The Constitution is a binding legal document. The DoI is a revolutionary document with no surviving legal significance whatsoever. 268

[Little Nemo]

Originally Posted by Little Nemo

I feel we're talking about the legal effects in this thread. The militia clause might serve some political purpose (perhaps it made the Bill of Rights more acceptable to people voting on them) but judges deciding cases wouldn't base their decisions on that.

If you're suggesting the militia clause might be adding something to the individual right, I'm not seeing how. If you concede an individual has the right to own and carry firearms in general then giving one reason why they might do so doesn't add to that right. A person might own a firearm to fulfill their duties in a militia. Or they might own a firearm for self-defense or for hunting or as a collectible item or for competitive shooting; none of these reasons are listed in the amendment. That's because if the individual right is established, it's not necessary to offer suggestions as to why somebody might want to exercise it.

In legal terms, it means a judge can't base a ruling on why a person owns or carries a gun (except if the purpose is criminal). A judge can't say "You aren't entitled to own this firearm because you would not be doing so in a manner that is conducive to the existence of a well-regulated militia."

Here's an analogy to illustrate the point I'm making.

Suppose the Constitution said "Everyone enjoys a parade, so the right of the people peaceably to assemble shall not be prohibited."

And this dialogue was the result:

"Does the parade clause have meaning?"
"Sure it does. It says everyone enjoys parades."
"But are people only allowed to assemble for the purpose of holding a parade?"
"No, people can assemble for any reason they want to as long as it's peaceful."
"So they can assemble for parade-related reasons or for reasons that are completely unrelated to parades?"
"Yes."
"Then the parade clause has no effect on the meaning of the right to assemble. It doesn't add anything to the right and it doesn't subtract anything from the right." 269

[Abatis]

Originally Posted by Hamlet

I like how you have the part of Breyers introduction where he says he has four propositions, and then just cite the one you like.

Here's the rest:

I like them all. None either prove the . . . well, whatever it is you are arguing now, or disprove the individual right interpretation.

Originally Posted by Hamlet

(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, 307 U. S. 174, 178 (1939) ; see ante, at 26 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).

That is the "object" of he 2nd Amendment, why the AMENDMENT is there. The AMENDMENT was adopted with a purpose of perpetuating the militia. The militia can not be called up or trained or organized or deployed if the citizens are not armed. The actual structure that is established in Art I, §8, cl's 15& 16 is predicated on having armed citizens to call on; citizens who only serve when called. It is they who possess the right to arms, not the militia. Their arms facilitate the structure, the structure is not the purpose for their arms.

Originally Posted by Hamlet

(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.

OK. The Amendment must be interpreted and applied with the object in view. The object was to preserve the continuation of the general militia concept so that both the states and the federal government would have a ready pool of properly equipped citizens to call up at a moments notice, mustering with an appropriate arm furnished by themselves, to aid the civil authority when circumstances demand it.

The object also is "to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution". It does this by assuring the people that because "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" (Aymette v. State, 2 Humphreys (Tenn.) 154, 158, cited by Miller).

So fine, I have no problem interpreting and applying the 2nd Amendment on those principles.

Originally Posted by Hamlet

(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) ; ante, at 22, 54 (opinion of the Court)."

No rights are absolute in an ordered society and no powers are absolute in a Constitutional Republic. The fact that the right to arms is enumerated in the Bill of Rights, takes certain policy choices off the table.

Originally Posted by Hamlet

Also, as Stevens says: "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.

An then he goes directly to the words of the 2nd Amendment to conjure a restrictive "scope" from words that the right in no manner depends upon.

Stevens should have confined his legal expeditions within the boundaries established by long-standing Supreme Court explanations of the right to arms and the 2nd Amendment (two separate and distinct things).

. 270

[Abatis]

Originally Posted by QuickSilver

This is like the proverbial dissection of the frog in high school bio lab: There is nothing new to be learned, and the frog needlessly dies of it.

The differences between gun rights supporters and gun control supporters are fundamental and irreconcilable as I see them.

Yup, I agree . . .

https://i.postimg.cc/CLYs1Vsd/answers.jpg 271

[QuickSilver]

Originally Posted by Abatis

Yup, I agree . . .

https://i.postimg.cc/CLYs1Vsd/answers.jpg

Touché. I'll give you the benefit of the doubt that you posted it with sufficient thought and appreciation for how that cuts both ways. 272

[Abatis]

Originally Posted by ElvisL1ves

The individual-rights concept not having been invented yet,

In 1876 the Supreme Court recognized the right to bear arms for self defense in public from the KKK / Night Riders, as being possessed by two former slaves, then citizens, in 1873 Louisiana, a state that had no state militia, it having been disbanded by Congress. Even if the state had a militia, these two men of African decent were not allowed to even enroll because US law only allowed "free White male citizens" to be members.

So, you're wrong.

Originally Posted by ElvisL1ves

and there being no significant group yet created to support it.

NFA-34 was the first federal gun law and it was written in the tax code. Congress knew then that it could not actually ban machine guns and other Title II arms but it presumed it could tax the transfer of them between citizens (and the only way to make sure the tax was recorded was to create a registry). So far the power for that has been upheld (although it has been questioned, the latest being in Heller).

As far as a significant group, the NRA was established in 1871. Of course their opposition to gun control didn't really get rolling until 1968, with the next round of federal gun laws.

Originally Posted by ElvisL1ves

It would have been like a legal argument that the sky is actually green.

There wasn't any "legal argument" against the individual right (at least federally). That states wrote and enforced laws disarming Blacks was a major reason why the 14th Amendment was proposed and ratified. Nobody questioned that citizens possessed an individual right to arms; even the horrible case of Dred Scott v Sanford can be pointed to because Tanney observed that if Blacks were accepted as citizens, they would possess the right to keep and bear arms wherever they went.

Even after Blacks became citizens and even after the 14th Amendment, Blacks were put under laws disarming them and state militias were the brutal enforcers o the "Black Codes". This is where we see the "militia right" interpretation being employed by states to defeat the right to arms claims of Black citizens. Since the federal Militia Act said only Whites could be militia members, states that wanted to see Black stay disarmed argued that the right to arms was only for militia members . . . and viola, Blacks could be excluded from having any gun rights recognized. That disgusting, anti-constitutional argument was revived in 1942 to pervert Miller and the rights of all US citizens were held in legal purgatory for 66 years until Heller threw that shit out.

So, you're wrong again.

Originally Posted by ElvisL1ves

It has been asserted, not "pointed out", and unfortunately not with any historical support.

It was just 3 years later in Cases v. U.S, 131 F.2d 916 (1st Cir. 1942) . . . The lower federal court decision that introduced the "milita right" interpretation I spoke of above, into the federal courts (paragraph breaks added):

"At any rate 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, . . . "

Originally Posted by ElvisL1ves

To clarify, Miller confirmed what had been the common understanding that the Second has no applicability outside militia use. Heller reversed that.

Wrong again . . . You are deluded or severely misinformed and no, Heller set the record straight, it didn't disturb Miller, it affirmed it.

. 273

[Abatis]

Originally Posted by QuickSilver

Touché. I'll give you the benefit of the doubt that you posted it with sufficient thought and appreciation for how that cuts both ways.

I can appreciate that in theory. But in reality I have spent a few decades reading everything available on both sides of the argument and am very familiar with every aspect of the anti-gun position and every nuance of their arguments and I have witnessed the ever shrinking sophistication of the anti-gun argument.

My arguments against the ever stupider anti-gun positions remain the same they have been since the mid '90's, they are wrong for a reason and I still like to show WHY they are wrong . . . Don't think that I think that I will ever change THAT person's mind; I post for the lurkers. Look at the page views of any gun thread, they are always among the higher # of views. There are a lot of people interested in the topic and looking for honest debate and supported info. So, I post for them which is why I post the way I do, exact quoting and dismantlement of the other's statements.

Back in the '90's and early 2000's, both sides would present arguments like I present now, It was incredible and entertaining and informative. I started back on USENET in 1993 in talk.politics.guns; there were thousands of messages a day posted, hundreds of threads, all on law and policy and all the law was on the anti-gun side (the aforementioned "militia right" and "state's right" lower federal court opinions) until Emerson in 2001.

Nowadays, I search high and low (I'm registered on about 25 political boards) to enjoy again that supported debate but it is harder and harder to find. I do tire of being told I'm an uncaring monster, eager to step over the bodies of kindergartners just to rub my penis substitute. Those "arguments" get old quick 274

[QuickSilver]

Originally Posted by Abatis

I can appreciate that in theory. But in reality I have spent a few decades reading everything available on both sides of the argument and am very familiar with every aspect of the anti-gun position and every nuance of their arguments and I have witnessed the ever shrinking sophistication of the anti-gun argument.

My arguments against the ever stupider anti-gun positions remain the same they have been since the mid '90's, they are wrong for a reason and I still like to show WHY they are wrong . . . Don't think that I think that I will ever change THAT person's mind; I post for the lurkers. Look at the page views of any gun thread, they are always among the higher # of views. There are a lot of people interested in the topic and looking for honest debate and supported info. So, I post for them which is why I post the way I do, exact quoting and dismantlement of the other's statements.

Back in the '90's and early 2000's, both sides would present arguments like I present now, It was incredible and entertaining and informative. I started back on USENET in 1993 in talk.politics.guns; there were thousands of messages a day posted, hundreds of threads, all on law and policy and all the law was on the anti-gun side (the aforementioned "militia right" and "state's right" lower federal court opinions) until Emerson in 2001.

Nowadays, I search high and low (I'm registered on about 25 political boards) to enjoy again that supported debate but it is harder and harder to find. I do tire of being told I'm an uncaring monster, eager to step over the bodies of kindergartners just to rub my penis substitute. Those "arguments" get old quick

Your argument, like every argument for your side, adds up to the U.S. Constitution and related case law being on your side. That's all well and good. When the law is on your side, bang on the law, as they say.

On my side, there is the matter of many nations with democratic societies where people enjoy all the rights and freedoms that the FF had in mind, but without the need to put a gun in every hand. I see this as the preponderance of evidence being on my side. So I'll bang on the facts.

You may have done your homework on the law since the 90's. But I suspect you could not help but noticed that the socio-political change is swinging away from your positions. That scares you. Why else would you put so much effort into arguing on 25 internet venues. Because you know that laws can and do change. I will continue to argue and vote so that they do.

As to whether or not you're a monster, that's a matter for you and your conscience. You can hide behind standing law and Sov.Cit. mentality, but it's not my job to help you launder it. 275

[DrDeth]

Originally Posted by ElvisL1ves

The individual-rights concept not having been invented yet, and there being no significant group yet created to support it. It would have been like a legal argument that the sky is actually green.

It has been asserted, not "pointed out", and unfortunately not with any historical support.

To clarify, Miller confirmed what had been the common understanding that the Second has no applicability outside militia use. Heller reversed that.

That wouldn't have been the argument. The argument would have been that short shotgun were indeed, historically a military/militia weapon. Thus Miller would have been decided in favor of Miller.


You dont read posts thru, do you?

Miller did nothing of the sort. Miller ruled one thing and one thing only- that the 2nd Ad is not a protection vs laws that ban sawed off shotguns. That is all Miller ruled on. Period. Nothing else. 276

[DrDeth]

Originally Posted by Hamlet

He asked for precedent. Not precedent that you had to agree with the ruling. How cool if we could just pretend that court decisions that we disagree with simply don't count?

Miller is precedent for exactly one thing- that laws that ban sawed off shotguns are legal under the 2nd Ad. nothing else. 277

[Abatis]

Originally Posted by QuickSilver

Your argument, like every argument for your side, adds up to the U.S. Constitution and related case law being on your side. That's all well and good. When the law is on your side, bang on the law, as they say.

When the debate is focused the operations of the US government, especially as it relates to citizens, the Constitution and related case law is the only thing to be referred to, or relied on. Anything else is asking for the advent of either autocracy or anarchy with plenty of nasty crap in between.

The only other alternative is to advocate for scrapping this compact and, as the Declaration suggests, whenever a form of government no longer meets the needs or desires of the people,

". . . it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

It's simple, advocate for the formation of a new government, founded on different principles that you feel will be more conducive to the needs and desires of the modern enlightened Progressive.

Originally Posted by QuickSilver

On my side, there is the matter of many nations with democratic societies where people enjoy all the rights and freedoms that the FF had in mind, but without the need to put a gun in every hand. I see this as the preponderance of evidence being on my side. So I'll bang on the facts.

The fact must at least have some rational relationship to the debate. Feel free to advocate for public policy to align with these utopias of safety and freedom that you have in mind, but those arguments have no weight in altering the ambit and action of the Constitution. The only way to do that is with an amendment using the process set-out in Article V, granting the federal government new powers to effect those changes.

Originally Posted by QuickSilver

You may have done your homework on the law since the 90's. But I suspect you could not help but noticed that the socio-political change is swinging away from your positions. That scares you. Why else would you put so much effort into arguing on 25 internet venues. Because you know that laws can and do change. I will continue to argue and vote so that they do.

And again, the Constitution doesn't change because of public opinion and the powers conveyed by the Constitution can not retroactively alter the foundational principles. Yes, I know laws can change, I also know that Trump's election has only postponed the eventual death of the Constitution and this Republic. Such an outcome has been acknowledged from the very start. as The Constitution Center reminds us:

". . . upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: "A republic, if you can keep it." The brevity of that response should not cause us to under-value its essential meaning: democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health."

That so many have been either indoctrinated, brainwashed or imported that do not cherish and respect the founding principles and consider them binding, certainly means that the days of this experiment are numbered. That's why I do enjoy the debate. As long as my arguments leave people like you countering them abandoning reason and appealing to emotion and to what other countries do, there's a chance to sway opinions .. . Thinking people can be brought to the correct conclusion, and opponents, hopefully they will realize they need to just get honest, stop the BS and argue straight-up against the Constitution.

I do think it's amusing that you feel I should respect to your right to argue for ignoring the Constitution because you are pleading for the pure and progressive path of world harmony but you feel I'm "scared" to argue that we abide by the rules, thus my opinion is marginalized. Good God, I do detest the emotional equivalencies of the left.

As an aside (but not really) the only reason I voted for Trump was his promise to nominate originalists to the federal judiciary. I'm happy, no, elated at the progress on that front and those judges and Justices have the opportunity to slow, not necessarily repel, this march of the anti-constitution forces of the left.

Originally Posted by QuickSilver

As to whether or not you're a monster, that's a matter for you and your conscience. You can hide behind standing law and Sov.Cit. mentality, but it's not my job to help you launder it.

LOL. If you get that I'm one of them you are lost. I advocate for everybody to respect and abide by the Constitution, nobody gets a pass, nobody is excepted, nobody is immune.

. 278

[Hamlet]

Originally Posted by DrDeth

Miller is precedent for exactly one thing- that laws that ban sawed off shotguns are legal under the 2nd Ad. nothing else.

Again, as Stevens pointed out: "Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 " Simply saying it isn't precedent doesn't make it true. 279

[Hamlet]

Originally Posted by Abatis

No rights are absolute in an ordered society and no powers are absolute in a Constitutional Republic. The fact that the right to arms is enumerated in the Bill of Rights, takes certain policy choices off the table.

" 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.

Originally Posted by Abatis

Stevens should have confined his legal expeditions within the boundaries established by long-standing Supreme Court explanations of the right to arms and the 2nd Amendment (two separate and distinct things).

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." 280

[DrDeth]

Originally Posted by Hamlet

Again, as Stevens pointed out: "Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 " Simply saying it isn't precedent doesn't make it true.

I didnt say it wasnt precedent, read my post again.

And stevens was writing the dissenting, i.e. the losing opinion.

And here;s what the cite ruled:"
Held: Even though petitioner's extant prior state court felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U. S. 335, it could properly be used as a predicate for his subsequent conviction for possession of a firearm in violation of § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 445 U. S. 60-68.

(a) The plain meaning of § 1202(a)(1)'s sweeping language proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State . . . of a felony," is that the fact of a felony conviction imposes firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action.

No one is arguing that Heller or Miller or any dec allows a felon to own a gun, in fact Heller specifically says otherwise. 281

[Hamlet]

Originally Posted by DrDeth

I didnt say it wasnt precedent, read my post again.

You said it was precedent for only one thing, when, here in reality, it was repeatedly relied on by lower court decisions. If your assertion was true, all hundreds of those cases would have to be only about sawed off shotguns. Which they weren't. 282

[Bone]

Originally Posted by Hamlet

Again, as Stevens pointed out: "Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 " Simply saying it isn't precedent doesn't make it true.

Do you think the dissent carries any weight as a matter of law? It doesn't. Stevens could have declared anything he wished in his dissent (joined by 3 others), but it wouldnt matter one bit. The controlling legal authority determined that the Heller opinion was consistent with Miller, not contrary to it.

To be clear, do you think Heller overturned or went against Miller precedent in any way? 283

[Hamlet]

Originally Posted by Bone

Do you think the dissent carries any weight as a matter of law? It doesn't.

Wow. Thanks Bone. Here I've been a lawyer for over 20 years, and I had no idea that a dissent is a dissent.

Originally Posted by Bone

The controlling legal authority determined that the Heller opinion was consistent with Miller, not contrary to it.

And the "controlling legal authority" is wrong. 284

[Abatis]

Originally Posted by Hamlet

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.

Originally Posted by Hamlet

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.

. 285

[Abatis]

Originally Posted by Hamlet

You said it was precedent for only one thing, when, here in reality, it was repeatedly relied on by lower court decisions. If your assertion was true, all hundreds of those cases would have to be only about sawed off shotguns. Which they weren't.

I addressed the perversion of Miller by the 3rd and 1st Circuits in 1942 that led to all those judges being dumb. It was in a post to you and you ignored it. Try scrolling up to posts 266 and 270 and try again.

Originally Posted by Hamlet

I've been a lawyer for over 20 years

Well, that explains everything . . . 286

[Bone]

Originally Posted by Hamlet

Wow. Thanks Bone. Here I've been a lawyer for over 20 years, and I had no idea that a dissent is a dissent.

Well that's why I was seeking clarification - because your response seemed so inconsistent with your usual legal acumen. No sarcasm at all, even though we disagree on some issues, I always find your posts valuable and interesting to read.

But when the idea of going against precedent was raised, you cited Steven's dissent. And I know you are aware that the dissent is not controlling, so I didn't understand why you would cite the dissent in support of the claim that precedent was being contradicted.

This is why I asked in post #261 why you thought it was relevant because I assumed I must be missing something. 287

[Hamlet]

Originally Posted by Bone

But when the idea of going against precedent was raised, you cited Steven's dissent. And I know you are aware that the dissent is not controlling, so I didn't understand why you would cite the dissent in support of the claim that precedent was being contradicted.

I cited the dissent because it correctly explained my point. I really dont understand why you find that problematic. 288

[Bone]

Originally Posted by Hamlet

I cited the dissent because it correctly explained my point. I really dont understand why you find that problematic.

The problem I have is that you cited it in response to a claim that something was contrary to precedent. That Heller somehow went against the holding in Miller. But it didn't - Heller expressly acknowledged Miller and was consistent with Miller. So if you say that you agree with Stevens's dissent, that's fine and while I disagree with Stevens, your opinion on the strength of his dissent is your own. I only took issue with it when you raised Stevens's dissent in support of the false claim that Heller overruled some precedent set in Miller. 289

[Hamlet]

Originally Posted by Bone

I only took issue with it when you raised Stevens's dissent in support of the false claim that Heller overruled some precedent set in Miller.

Am I missing something? It sounds like you took issue with the fact that I agree with Stevens and you disagree with Stevens. 290

[D'Anconia]

The Constitution doesn't grant rights, it acknowledges the rights we already have. 291

[Bone]

Originally Posted by Hamlet

Am I missing something? It sounds like you took issue with the fact that I agree with Stevens and you disagree with Stevens.

Yeah, I didn't take issue with our differing views on Stevens's dissent. My issue was with the characterization that the dissent is support for the claim that precedent was contradicted.

To be clear - Heller did not overrule or contradict Miller. Heller did not overturn precedent. 292

[kirkrapine]

Originally Posted by D'Anconia

The Constitution doesn't grant rights, it acknowledges the rights we already have.

Legally, there is no difference. No court of law is competent to recognize "natural rights," or even to decide whether such things exist (they don't, no more than "natural law" exists apart from the laws of chemistry and physics). 293

[Abatis]

Originally Posted by kirkrapine

Legally, there is no difference. No court of law is competent to recognize "natural rights," or even to decide whether such things exist (they don't, no more than "natural law" exists apart from the laws of chemistry and physics).

The fact that the right to arms is not granted by government is significant and has been noted by SCOTUS for going on 140 years now. Since the right isn't granted, the Court tells us that it is not in any manner dependent on the Constitution for its existence.

Thinking people will understand that to mean that parsing and dissecting the 2nd Amendment and putting its words through a meatgrinder separating them from philosophy and history, just to invent conditions, qualifications and restrictions on the pre-existing right is not legitimate.

They should also understand that claiming the right to arms is dependent upon one's attachment with the Art I, §8, cl's 15 & 16 organized militia is also illegitimate. As the Court says, the right to arms is not in any manner dependent on the Constitution for its existence . . . Which means the right can not be argued to be dependent upon something that is itself, ENTIRELY DEPENDENT ON THE CONSTITUTION FOR ITS EXISTENCE.

I get why you dislike the "not granted" truth and tenet; it destroys your statist authoritarian goals. 294

[Hamlet]

Originally Posted by Bone

Yeah, I didn't take issue with our differing views on Stevens's dissent. My issue was with the characterization that the dissent is support for the claim that precedent was contradicted.

"Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.

"See Vasquez v. Hillery, 474 U. S. 254, 265, 266 (1986) (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)”)

"The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years."

I remain confounded as to how you conclude that Steven's dissent does not support the proposition that Heller wrongly distinguished Miller and that Heller represented "a dramatic upheaval in the law". 295

[iiandyiiii]

Originally Posted by Abatis

The fact that the right to arms is not granted by government is significant and has been noted by SCOTUS for going on 140 years now. Since the right isn't granted, the Court tells us that it is not in any manner dependent on the Constitution for its existence.

Thinking people will understand that to mean that parsing and dissecting the 2nd Amendment and putting its words through a meatgrinder separating them from philosophy and history, just to invent conditions, qualifications and restrictions on the pre-existing right is not legitimate.

They should also understand that claiming the right to arms is dependent upon one's attachment with the Art I, §8, cl's 15 & 16 organized militia is also illegitimate. As the Court says, the right to arms is not in any manner dependent on the Constitution for its existence . . . Which means the right can not be argued to be dependent upon something that is itself, ENTIRELY DEPENDENT ON THE CONSTITUTION FOR ITS EXISTENCE.

I get why you dislike the "not granted" truth and tenet; it destroys your statist authoritarian goals.

I'm not sure why this makes a difference, legally speaking (though IANAL). If the 2nd Amendment were repealed, then there's nothing in the Constitution that prevents states from passing laws that ban guns. Whether or not there is some magical non-corporeal "right" to bear arms that exists outside of law, if laws are passed, and remain on the books, that ban guns, then any such right is moot. 296

[ElvisL1ves]

Originally Posted by DrDeth

That wouldn't have been the argument. The argument would have been that short shotgun were indeed, historically a military/militia weapon.

Perhaps, but if so, such a ruling would have been because the 2nd applies only to militia use, and does NOT declare there to be an individual right outside that context. How can that be unclear? 297

[Bone]

Originally Posted by Hamlet

I remain confounded as to how you conclude that Steven's dissent does not support the proposition that Heller wrongly distinguished Miller and that Heller represented "a dramatic upheaval in the law".

Mostly because I've read Miller and Stevens conclusions regarding it are poor. What you've quoted is a discussion about the importance of stare decisis, not the rationale that Stevens is employing. As the Heller majority points out, if service in the militia were necessary for 2nd amendment protection, the fact that the two individuals in Miller were not members of the militia would be dispositive. Stevens mistakenly interprets Miller, making the leap from the analysis of the type of weapon and equivocating that to the individual.

I understand that Stevens is arguing that precedent was overturned. But as a matter of law, he's wrong and it is incorrect to say that Heller overturned precedent. That's the point. If the assertion was instead something like, Heller goes against what Stevens or others wish the law would have said, then I would have no qualms. 298

[QuickSilver]

Originally Posted by Abatis

When the debate is focused the operations of the US government, especially as it relates to citizens, the Constitution and related case law is the only thing to be referred to, or relied on. Anything else is asking for the advent of either autocracy or anarchy with plenty of nasty crap in between.

The only other alternative is to advocate for scrapping this compact and, as the Declaration suggests, whenever a form of government no longer meets the needs or desires of the people,

". . . it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

It's simple, advocate for the formation of a new government, founded on different principles that you feel will be more conducive to the needs and desires of the modern enlightened Progressive.

The fact must at least have some rational relationship to the debate. Feel free to advocate for public policy to align with these utopias of safety and freedom that you have in mind, but those arguments have no weight in altering the ambit and action of the Constitution. The only way to do that is with an amendment using the process set-out in Article V, granting the federal government new powers to effect those changes.

And again, the Constitution doesn't change because of public opinion and the powers conveyed by the Constitution can not retroactively alter the foundational principles. Yes, I know laws can change, I also know that Trump's election has only postponed the eventual death of the Constitution and this Republic. Such an outcome has been acknowledged from the very start. as The Constitution Center reminds us:

". . . upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: "A republic, if you can keep it." The brevity of that response should not cause us to under-value its essential meaning: democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health."

That so many have been either indoctrinated, brainwashed or imported that do not cherish and respect the founding principles and consider them binding, certainly means that the days of this experiment are numbered. That's why I do enjoy the debate. As long as my arguments leave people like you countering them abandoning reason and appealing to emotion and to what other countries do, there's a chance to sway opinions .. . Thinking people can be brought to the correct conclusion, and opponents, hopefully they will realize they need to just get honest, stop the BS and argue straight-up against the Constitution.

I do think it's amusing that you feel I should respect to your right to argue for ignoring the Constitution because you are pleading for the pure and progressive path of world harmony but you feel I'm "scared" to argue that we abide by the rules, thus my opinion is marginalized. Good God, I do detest the emotional equivalencies of the left.

You argue as if the constitution stands entirely on the inviolate, perpetual existence of the 2nd Amendment. I do detest the emotional fragility of the right that requires constant assurance from the grim death grip on their guns.

Originally Posted by Abatis

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.

QED. And are you seriously arguing that the conservative right and the 2nd Amendment stands to protect human rights from the progressive left?

Originally Posted by Abatis

As an aside (but not really) the only reason I voted for Trump was his promise to nominate originalists to the federal judiciary. I'm happy, no, elated at the progress on that front and those judges and Justices have the opportunity to slow, not necessarily repel, this march of the anti-constitution forces of the left.

Any port in a storm. Colour me shocked. 299

[Abatis]

Originally Posted by iiandyiiii

I'm not sure why this makes a difference, legally speaking (though IANAL). If the 2nd Amendment were repealed, then there's nothing in the Constitution that prevents states from passing laws that ban guns. Whether or not there is some magical non-corporeal "right" to bear arms that exists outside of law, if laws are passed, and remain on the books, that ban guns, then any such right is moot.

First off, the right to arms is not granted, given, created or established by the 2nd Amendment. Repealing it would not allow the federal government to "infringe" on the right. The People possess the right because we never granted to government any power to impact the personal arms of the private citizen. Granting that new power would need to happen, repeal the 2nd to remove the redundant prohibition to exercise powers never granted and then grant the feds the new (hopefully specifically defined) power to restrict the citizen's arms possession and use.

This discussion is focused primarily on federal law and how that is either bound or unencumbered by the framers original intent.

Original intent (and action) of the Bill of Rights was that it did not bind state action at all. The 14th Amendment (1868) changed that dynamic (or was supposed to). Fact is, the 2nd Amendment has not been much of an impediment to state laws at all, even after it was finally "incorporated" under the 14th in 2010 (in McDonald v Chicago which invalidated Chicago's handgun ban).

The only binding action emanating from the federal Constitution for protecting the right to arms of state citizens flows from the Constitution's promise to forever provide a Republican form of government. Because the armed citizens also serve as the reserve military force of the nation, as well as the states, the states can not disarm their citizens. (see Presser v Illinois) 300