Right to Open carry?

Great Debates
161

From wiki: * In regard to the scope of the right, the Court wrote, in an obiter dictum, “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[49]

The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the “in common use at the time” prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”), which may not by itself protect machine guns: “It may be objected that if weapons that are most useful in military service – M16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home.”[50]*
https://www.law.cornell.edu/supct/pdf/07-290P.ZO

*"Although we agree with petitioners’ interpretive assumption
that “militia” means the same thing in Article I and
the Second Amendment, we believe that petitioners identify
the wrong thing, namely, the organized militia.
Unlike armies and navies, which Congress is given the
power to create (“to raise . . . Armies”; “to provide . . . a
Navy,” Art. I, §8, cls. 12–13), the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz[e]” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence, ibid.,
cl. 16. This is fully consistent with the ordinary definition
of the militia as all able-bodied men…This holding is not only consistent with, but positively
suggests, that the Second Amendment confers an individual
right to keep and bear arms (though only arms that
“have some reasonable relationship to the preservation or
efficiency of a well regulated militia”). Had the Court
believed that the Second Amendment protects only those
serving in the militia, it would have been odd to examine
the character of the weapon rather than simply note that
the two crooks were not militiamen. *

162

Here is the process to change an Amendment to the Constitution, so please feel free to initiate a process to nullify the Second Amendment…best of luck to you…

163

In all of the 2nd Amendment/Gun Control arguments I see on the SDMB, I wonder, how many of the respondents on this thread have actually handled a firearm…

I was taught at an early age how to handle, clean and shot…gun control is BRASS, breath, relax, aim, slack and squeeze…if one is respectfully taught how to properly handle a fire arm, it’s not a mystery…

EDIT: Every fire arm we owned was absolutely legal

164

Everything you’ve written here has no basis at all in the law. That’s fine of course but what it does is color your interpretation on matters of actual law which leads you to such erroneous conclusions as you’ve drawn regarding Miller.

No. Not even close. Miller does not stand for this in any way. Two points here -

First the as has been explained, Miller was about the types of weapons, not who may keep and bear them. **Do you understand that? **

Second, SCOTUS never held the view you are espousing wrt to Miller. Not once. The dissents you seem to gravitate to, notwithstanding. This idea that the militia was the “sole” purpose of the 2nd is as misguided and wrong as when you asserted that the 2nd amendment “granted” rights.

What’s silly about this is that you think the dissent carries weight as a matter of law. Sure, he had a view, but it’s not one endorsed in any way by the court. Of it were, Thomas’s views on Roe could be held as binding precedent!

and yet our military purchases hundreds of thousands of handguns. Perhaps they have a better idea as to what is useful. Like short barreled shotguns and carbines.

You’re right though, perhaps we have to agree to disagree. But every time you trot out the militia nonsense and Toobin it’s a joke that will be rebutted. It’s an unserious position that except for those motivated by desires for more gun control, wasn’t taken seriously at the time he made the comments and is certainly disregarded as nonsense now. And more importantly, as a matter of law you argument is dead.

165

I have faulted Scalia’s logic in this part extensively in the past. The only reason that machine guns are not in common use or commonly possessed by gun owners is because they were effectively outlawed by the National Firearms Act in 1934.

Is Scalia saying that if the government violates the Constitution long enough it becomes Constitutional?

What if when the first automatic rifle was invented by the military (I think in 1895?) Congress passed a law saying that henceforth no citizen can possess this? Constitutional because not yet in common use or possession?

Could Congress pass a law saying that only guns that are in common use right now may forever be possessed in the future? If not, why not? By definition, these future guns will never be in common use and therefore not protected by the Second Amendment.

By what measure do we decide the generality? Semi-automatic weapons are pretty common, but not a specific model. What locality do we use? Prior to Heller, handguns in D.C. were not common at all because they were banned. Why the deference to the NFA but not the D.C. handgun ban?

In what other area of constitutional law can a particular law act as its own justification? Scalia really got that part of it wrong.

ETA: And the ban on possession by felons and the prohibition of carry in schools or government buildings are not “longstanding” at all.

166

What type of gun bans do you refer to? :dubious:

167

But what if the government turns tyrannical? Huh? What then? We need those AR-15’s to defend liberty *against *that standing army, navy, and air force, and never mind what else the Constitution may say about suppressing insurrections. Haven’t you been paying attention? :rolleyes:

168

You misquoted me. I did not make that statement.

169

That was directed at other participants (plural) in this thread who have made that claim, in all apparent seriousness too.

170

Obviously, the ruling was about the type of weapon. But the ruling centered fundamentally on the question of the use of such a weapon in militias, and what is pertinent here is that use in militias was the criterion by which 2nd Amendment protection was judged.

If one imagines such an amendment written with no mention of militias and enumerating instead a constitutional right of citizens to keep firearms for personal defense, it’s obvious that Miller could never have been decided the way that it was, and would have been decided in the opposite way.

The point I’m making is the rather extraordinary way in which the militia aspect has been deprecated over the years in the service of gun advocacy, reaching the culmination of this process in Heller where for all intents and purposes it was deemed altogether irrelevant. You surely could not possibly believe that Scalia or any of the conservative justices today would have ruled on Miller as the other justices did in 1939. Scalia would have dismissed it in a nanosecond, without a second thought.

I’m aware of the fanciful notion that rights are supposed to be inherent, not “granted”. Yet in the vast majority of the world’s democracies no one imagines any inherent right to own a gun. It’s not that you can’t have one, it’s that asserting the inherent right to have one makes about as much sense as claiming an inherent God-given right to own a hammer or a screwdriver. And if and when the 2nd Amendment were to be abolished, then so would this ideological artifice. The practical difference would be that reasonable gun control would become possible.

Since I don’t believe dissent carries weight in law, it’s strange that you accuse me of such a belief. I have, however, in the past quoted a dissent like that in Heller as nothing more or less than articulate and learned expressions of a particular point of view. In this case it’s particularly misleading to call my William O. Douglas quote a “dissent” without further explanation, because it implies that the majority disagreed with it; in this case, however, he was dissenting on an entirely different matter and the record doesn’t show (AFAIK) whether or not other justices agreed with his view on handgun regulation, since that wasn’t what the case was about.

Let’s by all means agree to disagree, but I’m just going to point out here that calling the legal analysis of someone like Jeffrey Toobin “nonsense” and “a joke” stretches credulity, particularly when the two articles I cited (one written by Toobin, the other by a renowned professor of American history at Harvard) appeared in the New Yorker, one of the most respected publications in America due largely to the quality of its writing and analysis.

If one were to cast about for another publication of the stature of the New Yorker, one that might come to mind would be the Atlantic – in which the following appeared a few years ago, written by Saul Cornell, the Paul and Diane Guenther Chair in American History at Fordham University:
Heller and McDonald cast aside more than 75 years of established precedent to hold that individual citizens have a right to bear arms for personal use. Scholars and judges on the left and right have attacked the two decisions as incoherent and historically dishonest.

… there is nothing conservative about Thomas and Scalia’s vision of the Constitution. Their theory of gun rights is downright radical—and would have shocked the framers of the Second Amendment.

Like many things in this complicated world, there are no absolute truths here, other than the plain unvarnished facts about gun violence in America. We all have our beliefs, ideologies, and preferences. But to call Toobin’s analysis and many other like-minded analyses “nonsense” and “a joke” is just ideological sophistry.

171

Because it is altogether irrelevant. If you read the Founding fathers thoughts, the militia was composed of everyone*.

Thus, everyone can keep and bear arms.

*Everyone was in the militia. *

The Founding Fathers would be totally scandalized by the idea of the militia being the National Guard, which has been completely federalized, so that is it effectively a reserve for the standing army.

The militia is everyone.

  • which then was all white males.
172

Don’t you think they’d be even more scandalized by the *existence *of a standing army? That’s what all the fuss was about, remember.

Tell us: If the militia clause wasn’t intended to mean anything, why did they bother putting it in?

173

The unfortunate fatal flaw in your argument is the necessity of the word “was” instead of “is” in the last sentence.

If one has to transliterate it for the present day, using the verb “is” for the present tense, the appropriate sentence is then:

*No one is in the militia. *

Thus, following your logic, no one can keep and bear arms!

More generously, no such guarantee has any relevance in the present day. I’ve cited a number of such opinions, all extremely critical of Scalia’s reasoning in Heller. As a matter of fact, I forgot to mention that I also found the opinions of a number of conservative commentators who support the Heller outcome who also believe that Scalia’s logic was deeply flawed, reaching what they applaud as a desirable outcome from a badly reasoned argument.

174

Because, as has been said, they were against a strong standing army, but in favor of all the people being the Militia.

But in fact, in the first draft, they left that out. It was only added in at the insistence of the Anti-federalists who wanted to make sure the right for us to bear arms in the militia of the whole people was enshrined.

175

It is true, that by extra-Constitutional means, the Militia has been subsumed into the standing Federal army.

But as SCOTUS has ruled time and time again, you can’t take away a Constitutional right by Congress passing laws.

However, we’re talking about the intent of the Founding Fathers and writers.

Of course, one can go by that only 18th century printing presses are “free”, computers, the internet, modern presses, blogs, etc, no longer have the freedom of the press.

176

Tell me, if the " the right of the *people *to keep and bear Arms, " wasnt intended to mean anything why didnt they write the right of the *militia *to keep and bear Arms?

177

No. You put my name on a quote that I never made. I don’t want to report it because it was clearly an innocent mistake. Please acknowledge that I did not make the statement that you attributed to me inside the quote box.

178

Because in those days, the only way a militia could have any Arms was if each individual brought his own.

179

I fixed the quote attribution in post #167 that originally indicated it was from you. The post that was quoted in post #167 was actually from wolfpup. It appears to be accidental.

[/moderating]

180

You’ve already told us. At the time, the militia *was *the people. Providing that it could be armed with the citizen-soldiers’ own weapons, not just those stored in state-owned magazines, saved money, too. It didn’t become a standing army until shortly afterward.

No case was ever brought contesting that in 1907 or ever since, and it’s getting a little late for it now, don’tcha think?

Do you have an answer for the question on the table?

Next time you’re in Williamsburg, go take a tour of the Magazine. Or read the Articles of Confederation, which was actually the Constitution of the time: