Guns, Freedom and Power

The Supreme Court resolves only the questions that are presented to it for review. In the case of Miller, the prosecution asked the Court to review the lower court’s decision in favor of Mr. Miller, specifically asking whether the judge had erred by (a) ruling that Miller had an individual right to bear arms under the Second Amendment, and (b) ruling that the particular gun in question was the type of arm protected by the Second Amendment. The Supreme Court disposed of the case by answering the second issue, which made the first question superfluous.

[Note: I’m working from memory on the details of what the prosecutors said in their brief. I may be mistaken in some details.]

Thanks for the reference. Those of us who aren’t lawyers or lawyers in training (you haven’t stated here or in your profile which you claim to be) can’t sort through all this stuff and make sense. I read the whole thing, and the whole 84 pages of your other cite.

I’m not going to argue law with you; I didn’t intend to in the first place. Still, all I can find in your second cite minty greens second cite is stuff like this:

Hey, it was your cite!

Anyway: Peace. I can’t and won’t argue law with you. I’m not trained to understand and interpret that stuff. I’ll take your opinion as valid, but frankly I don’t think the individual vs. collective right issue is resolved. Looks to me like it’s still opinion.

I’ll wait for a final ruling. Save your cites. I’m not saying you are wrong. Maybe you are right. I still challenge the use of “almost universal,” however, even more so now I’m aware of your Esquire bent. I’ve seen two lawyers argue!

Dude, I have told you twice already that Emerson, the case you just quoted, is the sole U.S. Court of Appeals case adopting the individual rights interpretation. It is the case that makes the collective rights model the “nearly universal” judicial interpretation, not wholly “universal.”

What’s with this appeals court stuff? Let’s look at the court superior to those - the U.S. Supreme Court. There are thirty-five Supreme Court cases in which all, or a portion, of the 2nd amendment is cited. I see some of them have been raised here already, so please forgive the duplications in the list that follows (I typed up last night at a place where I had no internet access), except to note that the authors of this book, Alan Korwin, David Kopel & Stephen P. Halbrook (an attorney who has actually argued and won gun cases before the Supreme Court) disagree with minty’s analysis. I typed up last night at a place where I had no internet access.

Again, these are all Supreme Court cases—not mere Circuit Courts of Appeals. According the analysis in the book linked above by the authors, I have bolded the opinions which support the individual rights view, italicized those which support a collective view, while equivocal opinions are plain text. Many of these are, of course, dissenting opinions, but they’re still valid in that most of these cases weren’t centered on the 2nd amendent.
[ul]
[li] Spencer vs. Kemna (1998) – Dissenting opinion from denial of Cert. by Stevens[/li][li] Muscarello vs. U.S. (1998) – Dissenting opinion by Ginsburg[/li][li] Printz vs. U.S. (1998) – Concurring opinion by Thomas[/li][li] Albright vs. Oliver (1994) – Dissenting opinion by Stevens[/li][li] Planned Parenthood vs. Casey (1992) – Majority opinion by O’Connor[/li][li] U.S. vs. Verdugo-Urquidez (1992) – Majority opinion by Rehnquist[/li][li] Lewis vs. U.S. (1968) – Majority opinion by Blackmun[/li][li] Moore vs. East Cleveland (1976) – Plurality opinion by Powell[/li][li] Moore vs. East Cleveland (1976) – Dissenting opinion by White[/li][li] Adams vs. Williams (1972) – Dissenting opinion by Douglas[/li][li] Roe vs. Wade (1972) – Concurring opinion by Stewart[/li][li] Laird vs. Tatum (1972) – Dissenting opinion by Douglas[/li][li] Burton vs. Sills (1969) – per curiam summary affirmation[/li][li] Duncan vs. Louisiana (1968) – Concurring opinion by Black[/li][li] Malloy vs. Hogan (1965) – Majority opinion by Brennan[/li][li] Konigsberg vs. State Bar (1961) – Majority opinion by Harlan[/li][li] Poe vs. Ullman (1961) – Dissenting opinion by Harlan[/li][li] Poe vs. Ullman (1961) – Dissenting opinion by Douglas[/li][li] Knapp vs. Schweitzer (1958) – Majority opinion by Frankfurter[/li][li] Johnson vs. Eisentrager (1950) – Majority opinion by Jackson[/li][li] Adamson vs. Calfornia (1947) – Dissenting opinion by Black[/li][li] Hamilton vs. Regents (1935) – Majority opinion by Butler[/li][li] U.S. vs. Schwimmer (1929) – Majority opinion by Butler[/li][li] Stearns vs. Wood (1915) – Majority opinion by McReynolds[/li][li] Twining vs. New Jersey (1908) – Majority opinion by Moody[/li][li] Trono vs. U.S. (1905) – Majority opinion by Peckham[/li][li] Kepner vs. U.S. (1904) – Majority opinion by Day[/li][li] Maxwell vs. Dow (1899) – Majority opinion by Peckham[/li][li] Robertson vs. Baldwin (1897) – Majority opinion by Brown[/li][li] Brown vs. Walker (1896) – Dissenting opinion by Field[/li][li] Miller vs. Texas (1894) – Majority opinion by Brown[/li][li] Logan vs. U.S. (1892) – Majority opinion by Gray[/li][li] Presser vs. Illinois (1886) – Majority opinion by Woods[/li][li] Scott vs. Sandford (1857) – Majority opinion by Taney[/li][li] Houston vs. Moore (1820) – Dissenting opinion by Story[/li][/ul]
Lotta bolded cases there, eh? Hell, there’s so many, the bold text is “nearly universal.”

This seems to quickly be turning into one of those GD threads I discussed in that this much-ignored thread in which the questionable legality of an issue is reduced to a discussion of precedent and this-case-versus-that, rather than striking at the moral heart of the issue (which appears to have been Snakespirit’s original intention.

I’m not saying there’s anything wrong with citing legal precedent, and obviously it’s a necessary component of a debate along these lines. I’ve just always felt that a certain law or case ought to be referenced in terms of what it had to say about the matter, or what new insights it provided, rather than simply taking the outcome as “proof” of the correctness of a given position. For example, the Silveira case asks the question of whether the Second Amendment applies to individual rights under the Equal Protection clause. Rather than take the decision on this case to be the true answer to this question (as the Supreme Court is not the ultimate arbiter of morality, and has been known to change its collective mind from time to time), shouldn’t we instead reference the viewpoints taken by the opposing sides and consider the logic and practicality of each? Again, Snakespirit seems to understand what I’m talking about, as he is occassionally quoting his referenced cases in an analytical manner (and a couple of others here have done the same).

It may sound like I’m spouting too much Debate Team rhetoric here, but I honestly feel that a focus on the moral and practical standpoints on the issue, rather than a discussion of current legality, yields much more interesting and informative results. Of course, it ain’t my discussion, it ain’t my board, and I ain’t a mod, so by all means feel free to ignore the above if you see fit. It’s nothing more than my own $0.02 on that particular issue.

In regards to the OP, I personally feel that gun control is a good thing overall, but should definitely be applied with a lighter hand rather than a firm one when considering oft-disputed areas of the subject. I equal respect (read: virtually nil) for the positions of “Ban All Guns” and “End Gun Control”, but frankly, the former scenario would disturb me more. As ElectricZ pointed out, one original purpose of the Second Amendment was to guarantee the right of the people to protect themselves against their own government. I do not believe that the American government, at present, seeks to exert the quite that extreme an extent of control over its citizens (and clearly, a bill that called to ban all firearms would be hard-pressed to get out of committee, let alone pass). But as long as we’re dabbling in the hypothetical, let’s have a look at the opposite extremes: I am much more afraid of the possibility of living under a totalitarain regime than having each of my fellow citizens armed with assault weaponry. Everyday nutjobs having easy and legal access to Uzis is certainly a frightening thought, but compare that to the possibility of living under something akin to the former Soviet Union, where dissent against the government is considered just cause for death at the hands of a trained force of soliders (who, conveniently enough, also happen to have all the guns). Now ask yourself which of these scenarios you’re more willing to approach. This should give you some idea of where on the spectrum you stand. As for me, I’ll be standing over by the former side, trying to convince the guy down the street to drop his AK-47, but also damned glad for the right to hold my little Colt .22.

None of those Supreme Court cases adopt the individual rights interpretation, UncleBeer. It is legally meaningless to claim that they “support” the individual rights view unless they hold that it is an individual right. They do not so hold. I mean, really, you’re citing Planned Parenthood v. Casey? It’s an ABORTION case, not the Second Amendment!

Please also note that all those concurring and dissenting opinions you cite are the positions that lost at the Supreme Court. As such, they don’t support much of anything, except the individual positions of the justices who signed onto them.

Another relevant quote from Emerson: “Only in United States v. Miller has the Supreme Court rendered any holding respecting the Second Amendment as applied to the federal government.” That point ought to make it pretty clear why I refer folks to the Courts of Appeals–there just isn’t much out of the Supreme Court on the subject of the Second Amendment. When there is, I happily acknowledge it.

I do not cite those cases as “proof of the correctness” of the collective rights interpretation. I cite them as proof of what the law is, not what it should be. The distinction is important.

:confused: :rolleyes: :eek: :mad: :mad: :mad: :mad: :mad: :mad: :mad:

What you are talking about, ElectricZ, is what has been called the “insurrectionary theory” of the Second Amendment. In essence, you are not saying (as gun-rights advocates often do), "I need a gun, so I can defend myself, my family and my property, because I do not trust the police to do that job for me adequately. What you are saying is, “I need a gun, so I can shoot the police (and/or the FBI, National Guard, U.S. Army) if it should become necessary in my judgment.” Now will you just think seriously for five minutes about the implications and results of armed citizens using, or even threatening to use, their weapons on agents of the government? No, sir, the “insurrectionary theory” of the Second Amendment is completely indefensible on any grounds – practical, ethical, theoretical, or historical. We’ve already had a GD thread on this: “Is the Second Amendment meant to facilitate armed rebellion?” – http://boards.straightdope.com/sdmb/showthread.php?t=201061

Yes, I noticed.
So, you’re the final authority? Or is this just your position and someone else, a lawyer (or another lawyer, if you are a lawyer - I don’t want to offend), may find differently?

I’ve already told you three times that “universal” is an absolute and to modify it with ‘almost’ or even ‘nearly’ is meaningless.

But I don’t want to squabble. I’d rather stick to reasonable debate. I’ll only correct your English when it effects the tone or meaning of your post.

How about if I agree that the “majority” of decisions hold the 2nd amendment to be a collective right and you agree that modifying absolute terms is meaningless? :slight_smile:

You’re a legal person, I’m an English person. Lawyers may not always speak common English, and English professors don’t do law.

I want your substantive debate here; I welcome it.

And yes, Peace.

:eek: Arrrrrrrrrrrrrrrrgggggggggggggggggggghhhhhhhhhhhhh!

Seriously, thanks for all the data. It sure looks like a LOT of work, and is appreciated.

I’ll leave the first three alone(though I have no problm debating them) and focus solely on the historical.

What do you think was happening at Lexington and Concord back in the good ol’ days? Seems to me it was a bunch of normal folk, taking arms against the forces of a government that they felt had become oppressive. That sounds quite like the “insurrectionary theory” to me.

Would the words of Thomas Jefferson, Supreme Court Justice Joseph Story, and Abraham Lincoln, among others, be enough to convince you that this very surely was one of the reasons to allow for firearms ownership?

Oh, well I guess that completely settles the question then. :rolleyes:

Bringing a thread to a shouting match or “I’m right, you’re wrong and I won’t listen” is one way that a poster who doesn’t want a certain debate to take place can destroy a thread. I fully expect that somewhere along the way some anti-2nd-Amendment poster will try to do that to this thread. I don’t think minty green is trying to do this, btw.

I disagree on one point, Roland, it’s your board as much as you want it to be, as it is anyone else’s. I deliberately started this open-ended in order to engender more of an open debate.

Thanks for the input; I feel you brought up some good points.

No, the cases I cited are the “final authority,” at least as to the question of what the state of the law is. They say what they say, and that is as I have represented it to be. If you contend otherwise, you should prove it by providing the case law that says otherwise. Otherwise [Michael Palin] this isn’t even an argument [/Michael Palin].

No. 8 circuits to 1 is not simply a “majority.” Maybe “overwhelming majority,” if you would prefer that description.

Wrong again. I hold a graduate degree in English and taught writing and literature as an instructor at a state university for several years before becoming a lawyer. There’s nothing magic about either profession that precludes discussion of the relevant issues in this thread.

Actually, I didn’t say that anywhere in my post. It’s just a few posts above this one, if you need a cite. What am I saying? You quoted my whole post – but I don’t think you actually read the whole thing.

So let me quote myself:

So here is what I am saying: The laws governing the citizens, those of the criminal justice system, are what need to be changed. The law restricting the government, the 2nd Amendment, does not. The Bill of Rights is about what the government CAN’T do.

As for the “insurrectionary theory” and your request that I “think seriously for five minutes about the implications and results of armed citizens using, or even threatening to use, their weapons on agents of the government?” once again I have to requote myself:

There it is, in plain, unedited text, what I am really saying. The federal government is bloated, inefficient, schizophrenic, self serving, scheming, sometimes even beneficial, and constantly swinging from the left to the right as politicians come and go. But no matter who is at the helm we have a signed contract that tells them what their limits are. (Even if some administrations like to try little end-runs around the Constitution. ::coughPATRIOTACTcough:: )

I don’t own a gun. If I thought I needed one, I’d get one. But it would be to protect myself from my fellow citizens and not the government. Maybe the answer is for everybody in the country to sign a written contract declaring they violate each other’s rights.

So, Brainglutton, would you please tell me where in my post I demand the right to shoot policemen? You put a tinfoil hat on my head. I ask politely that you please remove it.

EZ

Apologies for dropping in this way. A colleague recommended I check this out for my work in civil rights… I don’t think so, but it sure looks like fun! Wish I had more time to play, this is a fascinating website.

Nice “thread” - discussion - whatever, but it sure has a long way to go. I recommend stating an opinion, dropping it and moving on. You are not going to prove anything here. It’s an exercise in… well, personal aggrandizement? State your point, argument, whatever, move on. So what if someone disagrees?

Minty, you are particularly interesting. If you are ever seeking another position, drop me an e-mail. Although you do seem a bit vehement, you sure can argue! I’ll bet you’re even better in issues where you don’t have a personal stake! (Your bias is showing.)

And shame on you for misleading these people! You know case law and even Supreme Court decisions prove nothing, ultimately, except the outcome of the case at hand.

Which is why I’m involved with the new Congressional 2nd Amendment Caucus, so that arguments such as these shall become moot.
Please visit us at http://wwwc.house.gov/musgrave/108th%20Web/pr_040426_2ndAmendmentCaucus.htm

Frankly, Snakespirit, I think you are a hopeless idealist. (Idealist isn’t an absolute, though ideal is.) You remind me of someone who was very dear to me. He didn’t get very far in life, personally, but he did touch, and even change, lots of other people. Unsolicited advice: Give it up. It’s not worth it.

I won’t be back, too busy, but feel free to contact me by email if you wish.

Filli

Umm, you are aware that this forum is called “Great Debates,” right? We do have a forum for stating an opinion and moving on. It’s called “IMHO,” which is short for “In My Humble Opinion.” If you are displeased that people are actually trying to convince each other of the correctness of their opinions, IMHO may just be the place for you.

I prefer “fascinating,” but thank you. :cool:

What bias would that be? In point of fact, my personal interpretation of the Second Amendment is an individual rights view, not collective rights. I personally am a gun owner. I personally support private ownership of firearms, albeit with certain restrictions. If I have a bias, it is a bias against misstatements of the law, which is not exactly something I would consider a fault.

Nonsense. Case law is precedent, and when precedent is applicable to a future case, it controls the outcome of that case. If you try to claim that you have an individual right to bear arms under the Second Amendment in (for example) a federal court in Florida, that court will simply apply the binding precedent of U.S. v. Wright and rule that you have no such right.

Hey, come back here and argue! I demand that you defend your position! :wink:

Just because the United States owed its independence to an insurrection does not mean that the United States Constitution should be construed so as to authorize insurrection, in any sense, under any circumstances. See Article I, Section 9: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Bear in mind, when the Continental Congress published the Declaration of Independence in 1776, it was intended as a radical document, a statement of revolutionary principles. But when the Framers attended the Constitutional Convention in 1787, they were drafting a blueprint for a political system that was intended to last indefinitely. “The Constitution is not a suicide pact,” etc.

Furthermore, the “insurrectionary theory” of the Second Amendment depends on the assumption that the “well-regulated militia” is intended to be, not an arm of the state, but a countervailing popular force against the state – or else a force of the state governments against the federal. There is no contemporary historical evidence that the first version is what the drafters of the Bill of Rights had in mind. And any argument based on the second version is very much a dead letter ever since 1865, and rightly so.

No, ElectricZ. The tinfoil hat fits you. Wear it. When you say that “The 2nd Amendment is a written guarantee by the Federal Government of the United States that it will not take away the citizens’ right to protect themselves”; and you also say, “The Bill of Rights is about protecting ‘the people’ against the government, not from each other”; and when you say both of these things in the context of discussing the Second Amendment; then there is no other logical conclusion than that you are claiming the right (or at least, a constitutionally protected opportunity) to shoot the police, etc. How else can arms be used to protect “the people” from “the government” and “not from each other”?

Just dropped in to see how this thread was developing, as the “other one” collapsed under total pig-headedness. Good arguments developing here. But Snakespirit, as a hard-core, “from my cold dead fingers” gun owner…minty is cleaning your clock, mainly because he is right. (Don’t you just hate it when that happens.) Case law, as it exists, is almost entirely on the “collective” side. That doesn’t mean it is right. Just that it is.

So -

What would the folks that recommend more gun control suggest for the vast, vast majority of gun owners (the law abiding owners)do?

Most gun owners are law abiding, careful, and own their guns for many different reasons. Be it recreation, hunting self defense or collecting.

I own seven guns. Recreation and self defense are my reasons. Every one was handed down to me from my family. Except one. One was a gift.

Should I just give them up? Give away a few thousand dollars of my familys history?