The ACLU, Prior Restraint, Stalking, and Guns

[Damuri_Ajashi]

@Left_Hand_of_Dorkness

This does not specifically and solely mean the national guard. However, it also isn’t, as you suggest

Who else do you think it might include?

I know for a fact that I’m not enrolled for military discipline. I therefore think that the second amendment does not cover me.

Well, then. Feel free not to own or carry a gun. I think we disagree about whether there is an individual right to keep and bear arms and the significance of the militia in that right.

Miller was a case about two criminals carrying sawed off shotguns across state lines. Anything that is not germane to the decision is dicta and has no precedential value (although it may have some persuasive value). Miller stands for the notion that the federal government can restrict particular TYPES of firearms that are not in common use.

If the second amendment only applies to militia discipline that is enrolled for military, then why would the supreme court bother with all that analysis in miller. Why not just say “these defendants are not enrolled for military discipline so they do not have any second amendment rights and the penalty for possessing prohibited sawed off shotguns applies and is enforceable”

It appears we may have irreconcilable differences in our opinions about the scope of the second amendment, fortunately for me, most of the supreme court agrees with me and I suspect will continue to agree with me for the forseeable future (IIRC, even the dissents acknowledged an individual right but saw the individual right as being satisfied with access to rifles and shotguns rather than handguns).

From Heller:

It is demonstrably not true that, as Justice Stevens claims, post, at 41–42,“for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.

IOW the traditional view you talk about didn’t really exist. Legal scholars had made guesses about what the court would say if the question ever came up and prior to Heller there was some debate as to whether the second amendment right was a collective right of the states of an individual right but I don’t think anyone ever thought that the right was attached only to people who were enrolled in the militia for military discipline.

[Damuri_Ajashi]

Indeed, even the Breyer dissent acknowledges an individual right divorced from membership of any disciplined militia. That dissent seems to focus on the permissibility of a ban on handguns as long as there is access to rifles and shotguns. It wasn’t the individual nature of the right that was a shock to people, it was the fact that the government couldn’t ban this particular type of firearm that was a bit of a surprise. It was thought that government could ban particular types of weapons if they posed some sort of public threat (and I thought DC made a pretty good (but flawed) effort at justifying their ban on handguns, SCOTUS did not agree.

[Left_Hand_of_Dorkness]

Well, there’s your claim, and then there’s what Justice Stevens has to say:

@Stevens

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.

I find your objections, in the face of Stevens’s crystal clear views, to be weak.

[Damuri_Ajashi]

@Left_Hand_of_Dorkness

Well, there’s your claim, and then there’s what Justice Stevens has to say:

I find your objections, in the face of Stevens’s crystal clear views, to be weak.

That’s why I said the Breyer dissent and not the Stevens dissent.

BTW can you point me to the part of the Stevens dissent that mentions those 5 words?

The Breyer dissent says:

I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).

(2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U. S. 174, 178 (1939) ; see ante, at 26 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).

(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.

(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) ; ante, at 22, 54 (opinion of the Court)....

… Although I adopt for present purposes the majority’s position that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars.

Breyer’s quarrel with the majority was based more on how MUCH regulation was permissible and not whether or not there was an underlying individual right.

[MoiBree]

I hate guns. The US would be a better nation, a better society if there were fewer guns. I’m OK with ordinary rifles and shotguns who people who want to hunt (not that I could imagine setting out to kill a wild animal). But, I’d be OK with working to get rid of all other guns.

[Left_Hand_of_Dorkness]

@Damuri_Ajashi

BTW can you point me to the part of the Stevens dissent that mentions those 5 words?

That’s a non-sequitur, and I hope you can see why, but I’ll explain if you need me to.

The Breyer dissent says:

Breyer’s quarrel with the majority was based more on how MUCH regulation was permissible and not whether or not there was an underlying individual right.

What’s your point? I’ve claimed that there’s plenty of controversy over what exactly is protected by the second amendment, and whether the right must be connected to a well-regulated militia. Are you disagreeing with that or not?

That said, I’m not sure you’re reading Breyer’s dissent correctly. It sounds to me as though he were stipulating the self-defense bit, not agreeing wholeheartedly with it.

[Damuri_Ajashi]

@Left_Hand_of_Dorkness

That’s a non-sequitur, and I hope you can see why, but I’ll explain if you need me to.

I understand but its one thing for a SCOTUS justice to express their personal opinion in a book. It is entirely divorced (or at least is supposed to be) from their legal opinion while sitting on the bench. My point is that is that as a legal matter, he does not believe that the second amendment is read to include those 5 words.

What’s your point? I’ve claimed that there’s plenty of controversy over what exactly is protected by the second amendment, and whether the right must be connected to a well-regulated militia. Are you disagreeing with that or not?

I disagreeing with the notion that your position is the “traditional view”

If you’re just saying that you have an opinion 9that is contrary to current law and has never been the opinion of the court), then why would I have a problem with that.

That said, I’m not sure you’re reading Breyer’s dissent correctly. It sounds to me as though he were stipulating the self-defense bit, not agreeing wholeheartedly with it.

You seem to think that what he is doing is accepting a premise “for argument’s sake” He’s not. he is accepting a position but not as broadly as the majority does.

[Left_Hand_of_Dorkness]

@Damuri_Ajashi

I understand but its one thing for a SCOTUS justice to express their personal opinion in a book. It is entirely divorced (or at least is supposed to be) from their legal opinion while sitting on the bench. My point is that is that as a legal matter, he does not believe that the second amendment is read to include those 5 words.

What evidence you do you have to support this point? Again, he said, “That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen.” That sounds to me as though he believes that’s the correct legal reading, and that the controversy could be avoided by adding some clarifying language.

I disagreeing with the notion that your position is the “traditional view”

When you say “my position,” are you suggesting that “my position” is that the well-regulated part of well-regulated militia is generally read as significant to the second clause? If so, sure–on what basis do you claim that that’s not the traditional view dating back for many decades?

You seem to think that what he is doing is accepting a premise “for argument’s sake” He’s not. he is accepting a position but not as broadly as the majority does.

What’s your evidence for this claim?

[Damuri_Ajashi]

I thought you didn’t like playing questions.

@Left_Hand_of_Dorkness

What evidence you do you have to support this point? Again, he said, “That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen.” That sounds to me as though he believes that’s the correct legal reading, and that the controversy could be avoided by adding some clarifying language.

Like I said, the difference between personal opinion and legal opinion. My personal opinion is that first amendment be damned I think there should be a limit on how much money can be spent by one person on politics even if they dress it up as political speech. My legal opinion is that you can’t put a limit on how much money a person spends on politics, especially if they dress it up as political speech.

When you say “my position,” are you suggesting that “my position” is that the well-regulated part of well-regulated militia is generally read as significant to the second clause? If so, sure–on what basis do you claim that that’s not the traditional view dating back for many decades?

No I am suggesting that your position is that being part of a militia subject to military discipline is a necessary antecedent to acquiring the right to keep and bear arms. If that is not your position then you have been arguing as if it is.

AFAICT, your position is that the individual right to keep and bear arms is fragile because Heller was decided 5-4 and that your position was more consistent with the “traditional view” of the second amendment. Namely that you had to be part of some militia that was subject to military training to have the right. I don’t think that was ever a widely held view of the second amendment.

What’s your evidence for this claim?

Shit, I got turned around. You’re right, hHe was in fact accepting that position for argument’s sake.

He believed that all the justices believed that the 2nd Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.

[Dangerosa]

The ACLU tends to focus their efforts on the first amendment - they aren’t big on the ones that aren’t the first. One factor is that they have limited resources - they can’t even take on or respond to MOST of the first amendment cases that come their way. And other organizations are pretty good about defending the second - there isn’t exactly a gap there. And, I also suspect that organizationally, they have a reading of the second a little more in line with Justice Stevens. http://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html.

But they defend all sorts of people on the first amendment - even those they don’t agree with. They need to pick and choose their cases to give the most impact for the resources they have - but they don’t tend to pick and choose them because they like the people they are defending. Its one of the admirable things about them. I do suspect that their case load is heavily weighted towards defending liberals - but I also suspect that its liberals who turn to the ACLU with requests for help most often.

[Damuri_Ajashi]

@Dangerosa

The ACLU tends to focus their efforts on the first amendment - they aren’t big on the ones that aren’t the first. One factor is that they have limited resources - they can’t even take on or respond to MOST of the first amendment cases that come their way. And other organizations are pretty good about defending the second - there isn’t exactly a gap there. And, I also suspect that organizationally, they have a reading of the second a little more in line with Justice Stevens. http://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html.

But they defend all sorts of people on the first amendment - even those they don’t agree with. They need to pick and choose their cases to give the most impact for the resources they have - but they don’t tend to pick and choose them because they like the people they are defending. Its one of the admirable things about them. I do suspect that their case load is heavily weighted towards defending liberals - but I also suspect that its liberals who turn to the ACLU with requests for help most often.

I don’t think anyone is saying they have a problem with the ACLU (I certainly don’t). But, the only individual right on which they do not have a more expansive view than the mainstream is the second amendment right. Its not just the first amendment, its the 4th, 5th, 6th, 7th, 8th, etc. There’s nothing wrong with that and I don’t consider the ACLU an enemy of the second amendment but its not just resource allocation, they made a call a long time ago to see the second amendment as a collective right rather than an individual right.

They are currently revisiting their position in light of Heller:

ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court’s 1939 decision in United States v. Miller was widely understood to have endorsed that view. This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008.

They even seem to see some issues where they think civil liberties might be edagnered by gun control.

The ACLU disagrees with the Supreme Court’s conclusion about the nature of the right protected by the Second Amendment. However, particular federal or state laws on licensing, registration, prohibition, or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions.

I can just imagine the aneurisms the NRA high command would get when the ACLU files an amicus brief supporting their position on some of these issues.

https://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/second-amendment

[Left_Hand_of_Dorkness]

@Damuri_Ajashi

I thought you didn’t like playing questions.

I don’t answer questions with questions, as you were doing. I have no trouble with requests for evidence.

Like I said, the difference between personal opinion and legal opinion.

That’s not evidence for your claim, that’s just a repetition of your claim. I saw nothing in that editorial to indicate that it did not reflect Stevens’s legal opinion.

No I am suggesting that your position is that being part of a militia subject to military discipline is a necessary antecedent to acquiring the right to keep and bear arms. If that is not your position then you have been arguing as if it is.

I’m not sure what daylight you’re seeing between what you just said, and what I said. You MIGHT be suggesting that your rephrase is in contradiction to the individually-enforceable right. I don’t think that it is, however.

If the right cannot be claimed by individuals, then that means individuals don’t have standing to seek redress–only governmental bodies would, when their militias or militia-analogs were denied from possessing weaponry. But nobody on the SC holds that view, as you correctly point out. Any individual who belongs to a well-regulated militia has standing to oppose laws restricting their possession of weaponry; that’s something all SC justices agree on. The disagreement is on whether any individual NOT in a well-regulated militia is covered.
ndment.

[Damuri_Ajashi]

@Left_Hand_of_Dorkness

That’s not evidence for your claim, that’s just a repetition of your claim. I saw nothing in that editorial to indicate that it did not reflect Stevens’s legal opinion.

I was going to say that he doesn’t use those five words in his dissent but on closer reading, its close enough.

If your position is in line with the Stevens dissent (as we read it to include those 5 words into the second amendment) then I think the claim you make to a “traditional” view of the second amendment is wrong. The collective versus individual nature of the second amendment right was not even close to being settled law and was THE topic of debate on second amendment rights.

I think there is still room for a states right view of the second amendment (whereby the state has the right to ignore any restrictions the federal government might impose on the state’s citizens or the state itself (see NFA)) but this is probably not an interpretation that gun control advocates favor.

I’m not sure what daylight you’re seeing between what you just said, and what I said. You MIGHT be suggesting that your rephrase is in contradiction to the individually-enforceable right. I don’t think that it is, however.

If the right cannot be claimed by individuals, then that means individuals don’t have standing to seek redress–only governmental bodies would, when their militias or militia-analogs were denied from possessing weaponry. But nobody on the SC holds that view, as you correctly point out. Any individual who belongs to a well-regulated militia has standing to oppose laws restricting their possession of weaponry; that’s something all SC justices agree on. The disagreement is on whether any individual NOT in a well-regulated militia is covered.

OK, so I think I understand you now. You think that there is an idividually enforcable right to keep and bear arms if you are in a state militia but not if you are just average joe living in rural Montana in wolf country. The government could ban the possession of firearms otuside of the context of an organized state militia and even then I could make people leave their guns at a central depot run by the state militia. Right?