But, again, Heller is now an “old twist” in the gun rights movement, more than a decade past. I think the OP’s argument is based entirely on the Bruen decision, and it’s new standard of the historical context and tests for reasonable regulation of the 2nd.
So all of the talking about Heller, the historical habits of the NRA, etc, don’t have much bearing on the pending challenges to existing and previously supported restraints in the post-Bruen USA.
And again, repeating myself, I think that the conservative justices went too far and got a lot more backlash than they expected, thus their efforts to redirect their own standard, and would be happy to find some narrow ruling that further mutes said backlash in a time of historic low trust in the SCOTUS.
Sure, I can’t say that I will necessarily accept everything you say at face value but I’m willing to listen. I admit I’m not much of a scholar in this area. Your cite of Scott v Sandford (1856) suggests that at the his use of the law index in finding is references to the second Amendment may have missed some earlier decisions, and maybe some decisions like yours in which it was alluded to but not explicitly cited. But it also doesn’t completely dispense with his claim that the primary understanding of the 2nd amendment for much of the nations history was that it did not guarantee and individual right.
Gun rights were regarded as nearly absolute until the last quarter of the Nineteenth Century. It was from then and especially in the 20th century that lawmakers and judges began to “claw back” the guarantee of a right to keep and bear arms; evidently simply regretting that the Founders had been so liberal on the subject. Two of the most pivotal cases heard by the SCOTUS, Presser v. Illinois and United States v. Miller upheld the gun restrictions in their respective cases while paying service to the letter of the 2nd Amendment; they essentially said “Well, um, yes the Second Amendment does say that… BUT–”
Perhaps what many people are thinking of when they believe that the individual interpretation of the 2nd was denied was a federal district court ruling in 1941, United States v Tot, where the court ruled that the 2nd protected only a collective right in order to uphold the conviction of a criminal who was arrested for carrying without a permit.
Historically the individual interpretation had come first; it was the collective interpretation that was promoted and adopted in the 20th century in order to uphold the constitutionality of increasingly widespread gun control laws. If you want to get into it in detail I recommend this .pdf: https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1044&context=clevstlrev
By the late 1990s the Yale Law Review had published “The Embarrassing Second Amendment”, who’s authors had this to say among other things:
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay-The Embarrassing Second Amendment-for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights
So gun rights activists beginning in the 21st century saw themselves not as radicals trying to promote something new, but seeking a restoration: a return to how the Second Amendment had been interpreted for nearly a century after its ratification. So the idea that Heller suddenly sprung something new out of nowhere is questionable at best.
Bruen was based upon gun permits, and what you have to do to get one. For example, in LA county, for decades, in order to show “proper cause” etc, you had to be a person who donated a lot to the Sheriff reelection campaign, or be a VIP, like a Hollywood star. This is demonstrably unfair. AFAIK, it was similar in NY.
Here is the text-"Held: New York’s proper-cause requirement violates the Fourteenth
Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense."
It did nothing more than that. Whereupon NY and California proply said “Sure, you can get a gun permit now, but pretty much every where is barred from anyone carrying one”, which is exactly the the sort of childish response I expected.
But that claim isnt true. Basically for like two hundred years- SCOTUS simple steered clear of gun cases. Does that mean guns were an individual right or not? The Justices simply were mute on that idea. No cases said it was no case said it wasnt. It was simply in limbo.
Heller came about as DC and two cities went ahead and enacted what amounted to total gun bans- or at least handgun bans. Those cities ruled that owning a gun was not a right- period. This forced the Supreme Court’s hand- now that DC did it, SCOTUS had to make a ruling. I honestly think that if DC etc hadnt gone to ridiculous extremes, the Supreme court would have been happy to keep not ruling.
Not sheep - wolves. Packs of wolves. People won’t fight alone, and they won’t all fight together; instead, what they’ll do is form gangs, which will spend all their time fighting other gangs, and in the end the most powerful gang will rule.
(It’ll then take away all the guns of people who don’t belong to the gang, but that goes without saying.)
Plus, of course, in any conflict between citizens and government, a large portion of the armed citizenry will always side with the government. The idea that an entire county/town/city will join together to resist is a fantasy.
You still haven’t explained why the powerful centralized government isn’t just the inheritor to the original triumphant warlords, or why they ever succumbed to liberal notions. By your theory the world should consist of Oceania, Eurasia and Eastasia.
[quote=“Lumpy, post:115, topic:1006113”]
You still haven’t explained why the powerful centralized government isn’t just the inheritor to the original triumphant warlords, or why they ever succumbed to liberal notions.
[/quote]By being powerful enough they could actually impose peace and permit freedom, for one. Weak states are inherently chaotic and violent, a powerful state can both allow people leeway without everything collapsing and keep people like the gun nuts from terrorizing everyone else.
And centuries of development. They are the “inheritor to the original triumphant warlords”; it’s just that that was a very long time ago.
That pretty much is what Hobbes expounded in Leviathan. By that theory the whole 18th century Enlightenment movement was hogwash. A great system, if you’re an Inner Party member. Not so much for the proles. And I’m not being sarcastic; in 1984 Orwell worked out pretty logically what modern governments would be like if they completely abandoned any notion beyond might makes right.
Which is how things were for a long time, except the terms were “aristocrats” and “commoners.” And a major part of changing that was making the central government strong enough to clamp down on those aristocrats so they could have their private wars anymore or tyrannize people regardless of what the central government wanted.
The point you are ignoring is that I never said that a strong central government inherently produces freedom and equality. It’s just that a strong central government is a prerequisite for those things. There is no freedom without a government strong enough to protect it, or civil rights without a government that can force them to be respected.
Fair enough; the Declaration of Independence even says “That to secure these rights, Governments are instituted among Men,”. The problem then is how do you keep a government from becoming as great an evil as the things it was supposed to prevent? It isn’t even just a case of strong central governments having no natural tendency towards freedom and equal rights– they seem to have an active tendency towards tyranny. Not only does high government office attract the worst sorts of egotists, but even worse are the ideologues, the control freaks with a Plan that just requires that everyone get with the program, or else.
The best, or the least lousy, answer the Enlightenment could come up with was first that the government would be structured so as to require the continually reaffirmed support of the People, and second that the government would not have the unilateral power to impose grossly unpopular measures on the populace. Even the American Civil War, which required the Union government to pretty much conquer an unwilling South, could only do so because the civil population in the North outnumbered the South and was at least acquiescently willing to go along with the war effort.
It shouldn’t be easy for a free government to send in the tanks and start shelling. A government that would ban the civilian possession of weapons might not necessarily be a tyranny, but any government that was tyrannical would have to ban civilian possession of weapons. Consider it a canary in a coal mine as it were.
I’ve been reading this thread without commenting because I think the discussion has been fascinating, but this statement threw me. How many of today’s tyrannical governments ban civilian possession of weapons? Or are you defining “tyrannical” as a level of authoritarianism not seen in today’s world?
Not true at all; Saddam Hussein allowed his people to be armed, for example. It was the Americans who started confiscating weapons when they showed up.
It’s organization that matters, not guns. Guns won’t help much at all against a government, or even smallish organization. That’s pretty much the point of “gun rights”, it diverts people into supporting something that doesn’t help them in any way.
If you entertain that as a possibility, doesn’t that raise a prior question as to what is so faulty in your Constitution as to make it possible in the first place - and shouldn’t you try to rectify that first?
Not actually possible. The Constitution can’t restrain people who don’t care about following the law, the system can’t stop would-be tyrants who are given control of it. Some government & legal structures are easier to subvert than others of course, but in the end they have no will or awareness of their own and are dependent on the people comprising them to do anything.
And on top of that it’s politically impossible to change the system much. Sure I’d like to, say, get rid of the Electoral College, but it’s not going to happen.