That’s really the issue at stake here. It’s not guns per-se, but rather the idea that some busy-bodies have decided that “Guns are bad, mmmkay”, and are setting about trying to restrict a legal right simply because they don’t like it, even though it’s none of their business.
Guns are more charged in that there’s a constitutional amendment guaranteeing that right, and a body of case law affirming it.
Ultimately, it’s the idea that someone is going to go around and tell you, as a free citizen and responsible adult that THEY’VE decided what’s good for you and what you can or can’t have.
Market forces are one thing- most people don’t drive V8 cars anymore as they tend to burn too much gas. But they could (and some do) if they’re willing to pay for the gas. But a bunch of busy-bodies deciding that V8s are just evil, and working to outright ban them would raise a lot of hackles in the exact same way as the gun control proposals do.
To a lot of people, it’s a question of free choice within the law.
If you want to go by original intent, it is implausible that Congress, and the ratifying state legislature members, wanted to limit the right to a federal jury trial to cases where there wasn’t a statute. All that was meant by common law was the system where, regardless of whether there is a specific statute, you look to precedent when, for example, giving instructions to the jury.
As a thought experiment – suppose there were newspaper reporters who pigeonholed members as they left Philadelphia’s Congress Hall after passing the Bill of Rights on September 25, 1789, asking two questions:
Is the Second Amendment intended to protect the rights of every free American to keep and bear arms, or the rights of states to field a well-armed militia, or both.
Is the Seventh Amendment intended to protect the rights to a jury trial in all federal civil matters involving a claim of over $20, or just those where the matter at hand isn’t mentioned in a statute passed by Congress.
A fair answer to #1 is that we don’t know what percent would have said what.
By contrast, question #2 has an obvious answer – the majority would have said that all civil matters under our legal system of common law applied.
Meanwhile, today, the US Court of Federal Claims has bench trials only. It doesn’t matter if the plaintiff claims that government employees were negligent. It doesn’t matter how much money is claimed. They hold bench trials only. And they won’t even hear a $20 case, period.
For those new to this, I’m not upset about the $20 clause being ignored. I’m complaining about the moralizing gun owners who claim to care about the Constitution and in reality don’t give a fig unless they can use it to bash political opponents.
The phrase “in suits at common law,” does not simply mean “suits that rely on precedent.” There are approximately one kajillion references that support the truth of this statement.
No, that’s untrue. They would have said that Congress won’t pass huge amounts of legislation and the courts will hear common law claims.
So what? The Court of Federal Claims is a court of limited jurisdiction. If you had further explained to those august gentleman that you’re wondering what might happen to that $20 business if Congress ever, by statute, established a court if limited jurisdiction to hear specific statutory claims, they would have to a man explained that the $20 limit did not apply in such a case.
Then you should pick another example – preferably one for which you know something that is substantively correct. Here, you demonstrate a thin veneer of knowledge – you read the words “common law,” find a definition on line, and believe you have achieved complete understanding. But while it’s true that “the common law,” is. A phrase that might be broadly used to describe our overall legal system – and its “prisms” :rolleyes: – the phrase “in suits at common law” has a much more specific meaning.
I don’t know how many a kajillion is, but I do agree that modern dictionaries differ on this. Older ones, not so much.
As for legal precedents, maybe there are a kajillion of them going your way, as there were a kijillion going my way, on gun rights, up until 2010, and some since then. But that’s my point. I could give you a kajillion pre-McDonald citations stating that the second amendment isn’t an individual right, and ones since then that endorse infringements. If the seventh amendment is living, why not the second?
It has several specific meanings, depending on context. But there’s no reason to think that the founders were thinking of the non-statutory meaning you champion.
Here’s an American explication of the seventh amendment, from 1831, making no distinction between common and statutory law::
What you claim as common law is almost the opposite of the conception in 1831. Equity is the non-statutory law that you seem to agree has almost gone away as congress passes more and more laws. If we go by the theory that equity is excluded from the right to a jury, and if people cared about the constitution as they do their guns, they’d think the seventh amendment is, if anything, more relevant than ever. If we go by the theory that “common law” was either a throwaway phrase or meant in contradistinction to maritime law, the seventh amendment protections are still clearer than those of the second.
Everyone who drafted and ratified the second amendment could see that it had something to do with the militia. No one could see that the seventh amendment had to do with giving a right to the federal government to dodge the obligation to offer civil case trial by jury by passing laws that would trump the seventh amendment.
This doesn’t fit DA’s statement precisely since the poster in question wasn’t persuaded, though in the first thread linked discussion continues in post 174 and 194, and so forth.
A citation to a article that makes a similar claim, but doesn’t cite its cases, isn’t actually citing a kajillion cases.
Or even one.
The truth is that the Supreme Court had not directly addressed the Second Amendment since Miller in 1939. In Heller, the Court found an individual right in the Second. (MacDonald found that the Second was incorporated against the states).
So is your comment focused on individual rights or incorporation?
How about we go by the theory that common law is the common law of England?
Really?
How many of those passing the Fourth, Fifth, and Fourteenth Amendments knew they met abortion rights and same-sex marriage?