Do you know where you are? You’re a moderator so I would hope so but let me help you out: We are in the “Great Debates” section of the message board.
As I pointed out earlier if all you mean to do is cite what the law says and deem that the end to the conversation then that is the end to debate. For my part I am exploring the rationale and logic of what the court is saying. Just because a majority said something does not make them right.
If we were in 1858 arguing about Dred Scott v Sanford and I said I think black people are people would you quote Chief Justice Taney and claim I am “factually wrong” because Taney wrote for the majority:
Just because a court says a thing does not make it logically so. It may well be law and we have to deal with it but that in no way is an indication it is right or just or even makes sense.
I really am unsure of the point you are trying to make with all this. Honestly it looks like an effort to distract from the logical and obvious shortcomings that the current jurisprudence has on the subject by citing what the law is as though that should be the end of the debate because there is no debate in your mind.
That’s true, the majority does not have a monopoly on determining what is right from a morality perspective. That’s not at all the point of disagreement. What we are disagreeing about is what the majority actually said. You seem to think that the majority said something they didn’t actually say.
SCOTUS said we can ban all weapons except the guns you could buy in 1791
vs. SCOTUS should have said only the guns available in 1791 are protected
Do you see the difference? The first is wrong as a matter of fact. The second is debatable.
Are you claiming that the 2nd Amendment can’t be overturned except by civil war?? If so, then do you have a cite for this incredible claim? As far as I know, the ‘Bill of Rights’ merely refers to the first 10 Amendments, and functionally is exactly the same as the other Amendments…which we know, for a fact, can be altered, since we have the precedence of the 18th/21st. Now, if I’m missing something here and, in fact, the first 10 Amendments are cast in stone to forever stand unchallenged and unchanged for all time, feel free to show me that and I will be happy to say I was wrong.
Well, it’s your word that it would be ‘ratified easily’. I never said anything remotely like that. I merely said it could and can be done if there is enough political will to do so. As to a divided America, when has American NOT been divided on one issue or another? For all of our history our people have been in rancorous opposition to one group or another, and it’s no different today than it was at the very start of the nation. We got through other squabbles and dissension, and we will get through this as well. If enough people eventually agree that we no longer need a protected right to keep and bear arms then it will be changed. If not…not. And currently, regardless of the political squabbling of the two parties and the NRA and anti-gun movement(s) such a majority of voters does not exist. The nation is still divided, and today there are still more people who want to preserve the right to keep and bear arms protected by the 2nd than wants to remove it. That said, I think that more people are willing to work within the system to regulate and control fire arms than not, today, and as long as you stay to the spirit of the Constitution you can do so.
No, it isn’t. It was originally put forth by Madison when he drafted the actual Amendment. This isn’t something new, and only deep ignorance of things like the Federalist Papers and the writings of Madison and others during his time could lead you to think such a ridiculous thing.
I know others have talked to you about the legal aspect of this, which you don’t seem to accept (I wonder if you’d be open to others making similar arguments about failed USSC decisions), and I can’t speak to that, being neither a lawyer nor much interested in fine legal points. But from a purely historic perspective it’s ridiculous to say that the original intent of the authors was to limit the amendment to only those in the militia. It goes against everything they stood for and sets things completely back assward to the reality. Same goes for thinking they weren’t trying to create a personal right of the (white, male) citizens in their new nation to keep and bear arms, because it’s a theme that’s impossible not to see with even cursory reading of their various writings as well as the context they were writing this under (i.e. a rebellion against the preeminent world power, a power that had systematically denied a personal right to a fire arm at home in order to protect it’s power as well as the privilege of it’s nobility, etc etc).
I find this entire line of argument distasteful, as it stems either from ignorance or deceit, since it’s plain the FF’s DID feel a personal right to keep and bear arms was essential. I find it more genuine those who say, instead, that what the FF may or may not have written is irrelevant to the world we live in today, that things have changed and our Constitution is, by design written with change as a mechanism by which things no longer relevant can be removed or modified and that this is what we should be doing, instead of endless wrangling about things that they are either ignorant of or using the ignorance of others to twist to their own designs.
Let’s start with this. Here is the finding from United States v. Cruikshank, a case from 1876 where the court was asked about incorporation (applying the Bill of Rights to the States). While the court, at the time, decided against incorporating the 5th, it did state:
The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
This is what is meant when someone says “the right to keep and bear arms pre-dates the 2nd amendment”, and so the idea that the 2nd amendment restricts the use of guns to militias is not something the court endorsed in 1876. An individual right to keep and bear arms is not a new idea.
It should be noted that the court, in this case, decided against incorporation for the 2nd amendment but it also decided against incorporation for the 1st amendment. Ideas about incorporation were quite different in that time than is typically seen today.
I did not miss it. I’ve actually read Miller. We can try this a different way. Your assertion was that precedent was overturned. Can you identify which precedent was overturned?
For example, when *Obergefell*overruled Baker v. Nelson, the court said this (my bold):
That’s pretty clear. If I were to say, *Obergefell *overturned 44 years of precedent, that would be a slam dunk cite.
Your assertion that 70 years of precedent was overturned however, is directly contradicted by the controlling opinion. From *Heller *after discussion of the dissent:
We’re not yet at the point where we are discussing the rationale and logic of what the court is saying. The disagreement isn’t about rationale and logic - it’s about what they actually said. It takes the form of SCOTUS said X based on Y. I’m not saying addressing Y at all because you are mistaken about X. You seem to think they said things that they did not actually say.
He’s just saying that the constitution doesn’t “grant” the right. The people have the right, and they had it before the constitution existed. The constitution can recognize a right, but it doesn’t grant a right. You might remember that bit about us hyoo-mans being endowed with certain unalienable rights endowed by our Creator.
Elvis: Yes, Texas v White established the precedent. But that case was decided after 1860, not before. We were talking about the state of affairs in 1860, not in 1869, after the war was over and lost by The South. If it was “quite clear” prior to that case, we wouldn’t have needed the case in the first place.
The pro-slavery arguments for secession were all based on a claim that the Feds were oppressing their liberties to own slaves - that the government had become “tyrannical”, to use a favorite fantasy term of AR-15 owners today - along with simple assertion. They never had an actual constitutional argument, just a political one that became a military one. Here’s some more reading material.
Miller was about which guns could be regulated, not whether guns, in general, could be regulated. So, you can outlaw guns that are not commonly used by militia, but not guns that are commonly used by militia. The right to own such guns is, as noted in Cruikshank, a right the people have that predates the adoption of the constitution.
The right to “keep and bear arms” is a given, untied to being in a militia. The only question is which “arms” the government can outlaw, and it’s those arms that are not “commonly used by the militia”. The militia being a citizen’s army, where the citizen typically supplies his own arms. That stands in contrast to a standing army (no pun intended), which commonly uses a large number of “arms” that the common citizenry is not allowed to possess.
It would make more sense if you made the actual point you wanted to make. We’ve established you haven’t read Miller. Have you read Heller?
I think you are interpreting the part you quoted from Miller as saying that the 2nd must be interpreted *only *in the context of the militia. Am I understanding you correctly?
If so, that’s not a correct reading of Miller. The militia is a reason, but not the only reason the right to arms was valued. This is addressed in the above quote and in other parts of the controlling opinion as well.