It’s not a zombie, we were waiting to see what the Supremes say. Also, I was going to read those PDFs Hamlet linked for me, but Verizon had anoutage this weekend. I was down to 2400 baud.
Okay. ABA’s amicus: Starts by howling about Stare Decisis. Not a good start, in my opinion. You should start off with some good arguments, and ‘The Law is The Law’ is damn weak, as I see it. Yes, it’s an important principle, but it’s a principle, in regards to protecting people, not to allow the State to ignore a matter, then rule by default. This Court isn’t against upsetting the applecart, I’ve noticed: see recent judgements on software patents. The other courts can rely on Stare Decisis. The Supremes make decisions.
Lot of Miller talk, covering pretty much all of the pro-Miller conversation. Nothing new there, no mention of the ‘there was no defense’ gorilla in the closet.
Generally, they talk then about how gun control is legal. But DC’s statue effectively outlaws possession. Then they discuss how the Circuit defined Handguns as Arms in a way different from Miller… cleverly not mentioning how handguns would be Arms under Miller, as well, or my dad was never issued a M1911A1.
There’s an argument that the decision would entangle the Court in matters left to state and local courts. Yes, but this is DC, which is special in this instance.
Evaluation of the ABA brief: Weak. Oddly so. And if I can see the holes, the Supremes can too.
I’ll do the other briefs some other time, that was painful.
Which is exactly what I’ve spent way too much time here trying to explain.
Yet this follows:
What part of “It’s the Supreme Court who confimed that that is the construction, and it doesn’t matter what anyone else, including me, thinks” did you overlook? :dubious:
Where the hell do you get that personalization from?
With no more offense intended to you than you just did to me, if you won’t bother to fucking read and understand other people’s posts, don’t dismiss their writers as “biblical literalists”. But before you do that, do go look up the difference between “mindset” and “law”, would you?
No wonder this topic always bogs down, with that same lame old bullshit constantly being repeated. Sheesh.
The Bill of Rights nowhere else explicitly states its own reasons for existence. Nowhere else does it *have * to. The framers must have known this one would be twisted and misinterpreted even with their guidance - what’s strange about that? And, to repeat once again, that’s what the status Supreme Court ruling is.
Hm. Generally, I agree with the pro-gun petition, as does Cecil, in the grammar section. They counter-cite Hamlet’s notation of bearing arms only being for mass use, and further what I found in finding Madison himself using bear arms in the individual sense.
… blah blah…
Meh. I’ll read it again when I have time. I don’t see any blatant gaping holes.
The anti-gun one though, has one in the table of Contents. “The Licensing Requirement Does No More Than Properly Limit Those Who May Carry Handguns.” Part of the point here is that the license was limited so that few to none were given out, effectively barring it.
I’m going to disagree with the ‘Second Amendment does not Apply’ bull. Geez, so if it doesn’t apply to the Feds, and it wasn’t incorporated for the States, where does it apply?
blah blah handguns are lethal… yes, and despite this law, still lethal, except they’re illegal.
Oooh, even more blatant Miller. “See, they chose to outlaw short barreled shotguns, despite the fact that they clearly had military use.”
It’s not a bad brief. I find it a bit weaker than the pro-gun, but I’m biased. I think the real meat here is individual versus collective right.
Interestingly, the people who are trying to argue collective right are taking a stance opposite what their boss says. Eg, the feds should, theoretically, be supporting individual right. Thus, the oral argument may get a bit muddled.
Elvis, go away, son, you ain’t helping, I say, you ain’t helping your side any. Shoo, boy!
Actually, barring Elvis, I’m pretty impressed that we seem to have covered the non-specific-to-the-case issues pretty tightly here. The ‘reasonable restriction’ is a tricky one, and one I’m not really sure I’m capable of evaluating. That’s real judge work. But I think that DC’s extreme use of ‘reasonable’ where it winds up being defined as ‘nobody’ has been shot down a few times in the past. Like literacy tests for voting. Or even means tests, where it would limit voting to property owners. I’m not saying that all gun laws are illegal, but I do think that DC’s use of said laws does pretty much make this a pretty easy call, in this case.
It is, to me at least, a bit … off … to say that you find it odd that the Second Amendment was different than the rest of the Bill of Rights in granting a collective right, when the Second Amendment is, in fact, different than all the other Amendments. It is the only one that has a prefatory phrase. Now, because it is so different, and the rules of Constitutional interpretation assume words included have meanings, I have a problem just ignoring that phrase. To me, the Second Amendment protects an individual’s right to keep and bear arms in support of State militia’s only. I fully admit, it is an interesting Amendment to interpret, and one that I’m not sure there will ever be agreement on.
What it boils down to with me is that I think the Second Amendment protects an individual right, but does so with a specific purpose. Since the Second Amendment clearly states the purpose for the right, that the right is limited to that purpose, for the preservation of the militia. I believe that the right to keep and bear arms for self defense is not one protected by the Second Amendment. Personally, I think the right to keep and bear arms for self defense is a Constitutionally protected right (just like other unenumerated rights), but you won’t find many on the right who are willing to make that argument.
(As a side note, I will point out, once again, how important it is how courts and people define the rights at issue. I find it amusing that so many who would limit the “right to marry” to only those who have traditionally enjoyed that right are all over defining the right to keep and bear arms as a right to keep and bear arms for whatever reason they like. But that is a side issue that would require an entirely new thread).
It is how you define the right. An individual right to keep and bear arms in self defense is a different right than an individual right to keep and bear arms in service of the State militia. And it is the latter which is protected by the clear language of the Second Amendment. But, it is also pretty clear to me, that the Second Amendment references (but does not protect) an individual’s right to keep and bear arms in self defense. In that way, it is akin to the 9th Amendment, which also recognizes there are unenumerated rights that should be protected from governmental interference. The right to keep and bear arms in self defense is one such right.
Sorry if I’m rambling, but my opinion is not truly fully formed yet.
My words spoke very well for themselves. They didn’t need you to misrepresent them with your “in other words”. If you had trouble understanding them, just ask, I’ll take the time to explain them to you.
And, because I find it interesting, I’ll point out that the line for the public to sit in on the oral argument in Heller started roughly at 11:00 p.m. on Sunday night. It’s fascinating to me to see such interest in our judicial system. And kinda scary…
Of all people, Kennedy and Souter seem inclined to go toward the individual rights opinion. From SCOTUSBlog:
Um, wow. I thought it was going to be close, maybe even 5-4. This looks like a slam dunk. It sounds like the only opposition will be Ginsburg and Stevens.
It’s too early to declare victory, far too early, but I will say this: Hey, Elvis, it’s looking like it’s time to come up with a new argument. Miller appears to be a dead issue, and it appears that the Supremes will not be seeing things your way.
I need not ask “What part of the multiple proofs that the Supreme Court did no such thing did you overlook?” The answer is clearly “Every bit of every one of them.”
To the Supreme Court (per Miller), the Second Amendment protects the right to keep and bear arms, and has a prefatory phrase that provides guidance as to the definition of the term “arms”.
Which makes sense to me, anyway, since it would just render the entire Bill of Rights self-contradictory and largely irrelevant if that prefatory phrase completely redefined “the people.”
I’d suggest that folks here download and read the oral arguments today. They’re pretty interesting, and I have to say it’s hard to see anything less than a 5-4 decision affirming an individual right, affirming that that right can be restricted, and throwing out the DC law as being too restrictive. Kennedy’s comments are especially telling at times.
Hate to come into this so late, but I believe there’s a basic misunderstanding of the meaning the descriptor “well-regulated” which prefixes “militia” in the second amendment. There’s been a bit of discussion regarding the contemporary meaning of the term “arms,” but I didn’t see anything like that for “well-regulated,” and it’s crucial to have a proper understanding of that term.
“Well-regulated,” at the time the Bill of Rights was drafted did not have the meaning most commonly associated with it today - that something is under the strict control or supervision of a governing, or regulatory, body - most often a government body. That seems to be the meaning that most people here - particularly the collective rights faction - are assuming the authors of the second amendment labored under. That may in fact be correct usage today, but not in the late 18th century. “Well-regulated,” in the late 18th century, was more commonly understood to mean: adroit, adept, practiced, or skillful; something that functioned smoothly and efficiently. Thus, a “well regulated militia,” regardless of who was in the militia, or how it was supervised, was intended to be composed of persons already efficient in the use of arms. Private ownership of arms can then be seen in the proper light; individuals must be permitted to own them in order to be proficient in their use. This was extremely important when the country was young, not so prosperous, and had a great aversion to a standing army. It meant that a defensive force, the militia, could be assembled and deployed from the citizenry with little training or delay, and that they could be expected to be proficent in the use of arms. The members of the militia would already be well-practiced, or at least familiar, with their own arms obviating the cost and delay of training. Quite simply, the right of the people, individual citizens, to keep and bear arms was deemed by the founding fathers as the most efficacious means of assembling a “well-regulated militia” when there was no standing army.
E-sabbath posted a bit from the Virginia state constitution that explains it quite well, particularly so because the author was George Mason. It definitely bears repeating here:
George Mason, an anti-federalist, refused to sign the constitution because he did not believe it safe-guarded the rights of the people sufficiently. He voiced the criticisms which ultimately spawned the Bill of Rights. Thus, the purpose of the Bill of Rights was to forge a compromise between the federalists and the anti-federalists in order that the constitution could be ratified. The Bill of Rights accomplished that by guaranteeing the right of the citizens and limiting the powers of the federal government. It would therefore be logically inconsistent to read the second amendment as giving the federal government control over the militia - by regulating it.
But George Mason’s anti-federalists were on the losing side. So, what does the federalist side have to say? Let’s look at Federalist #29 authored by Alexander Hamilton:
Note again Hamilton’s use of “well-regulated.” In its context, it can mean nothing except well-practiced.
The rights of individuals to keep and bear arms is a very rare issue on which the federalists and anti-federalists held a clear consensus of opinion. And all of this demonstrates the only logically consistent interpretation of the history and facts surrounding the Bill of Rights - that it was meant to guarantee the rights of individual citizens.
I was reading selected quotes from the Heller oral arguments, and I honestly thought Gura was the attorney for DC. The Justices seemed to be making good arguments for second amendment rights while, in some cases, Gura attempted to shoot them down.
Personally, I think it is much more crucial to have a proper understanding of the term "militia’.
I’d be interested in any cite you could produce, not that I doubt you. But I think the term “well regulated” clearly has, as part of the definition, a concrete organization with heirarchical command structure. And “well regulated militia” is NOT synonymous with “Armed Populace”.
But the Second Amendment doesn’t use the term “well armed” or “well trained” citizenry. It does say “well regulated militia.”
See, this is where I think your argument stretches the limits of credibility. If you want to take the (apparent) viewpoint that the prefatory clause about the “well regulated militia” means nothing and in no way limits the second clause, fine. I think you’re wrong, but it is understandable. But changing the definition of “well regulated militia” to mean “armed populace” is a stretch.
Dickering over WHO should be regulating the State militias in no way shape or form changes the meaning of what a militia or a well regulated militia is. And, I’ll point out, that Article 1 of the Constitution includes: "The Congress shall have power . . .
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress" Clearly, the Constitution envisioned that Congress would have control over the militia. I’m not sure what your point is in light of Article 1.
Here’s more from Federalist #29
“If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.” From that quote, it seems pretty clear that “well regulated” means “regulated”, with Hamilton’s point being over “who” regulates.
I think, although it’s a bit of an overstatement to call it a “clear consensus”, many founders did, in fact, agree there existed a right to keep and bear arms. The issue is whether that’s protected by the language of the Second Amendment.
You left off “for the purposes of serving the militia” after “the rights of individual citizens”. You simply cannot define “well regulated militia” in the Second Amendment as “armed populace”.
Don’t misunderstand me. I do think there is an individual right to keep and bear arms in self defense. It’s just not enshrined in the Second Amendment. The right that the Second Amendment protects is the right to keep and bear arms in support of the militia.