Advocates of Gun Control have a very strange definition of compromise.
My post presumed that the only point of going to the extraordinary step of amending the Constitution to explicitly void the Second Amendment (as opposed to merely going back to it being “close to a nullity”) would be to make mass disarmament and banning broad classes of firearms on a national scale constitutional. There wouldn’t be much point in making the legality of firearms a purely state matter; inevitably the Interstate Commerce Clause would be invoked to back federal bans.
As for “a swing of one vote”, I’ve never understood this. Could/Would the Supreme Court flatly overturn two or more established rulings simply because a new court wanted guns banned? On what grounds? Could they really just say “we don’t agree with our predecessors, so we’re voiding their decisions”? Taking such a step would amount to denying that the letter of the Constitution has an objective meaning that can be discerned by logic and deduction. It would amount to declaring “The Constitution means whatever we want it to mean”, which would destroy the Supreme judges credibility.
Lumpy, many ardent gun control advocates think Heller flew in the face of stare decisis set by Miller in '39, and is therefore invalid.
A “swing” on the SC could overturn Heller and quite properly “reinstate” the stare decisis status quo of “no individual right.”
I’m not saying that’s what PhillyGuy thinks/believes; just one interpretation of what the “get a new court/get a new vote” mindset is about.
If Heller and McDonald are backed up a third SCOTUS decision that public carry cannot be flatly banned or granted/denied arbitrarily, that would make a pretty solid block of rulings that would be extremely difficult to overturn.
IANAL but isn’t that exactly what would happen? * Brown v. Board* annulled the ruling of Plessy v. Ferguson. “We (SCOTUS as an institution, not necessarily the same 9 guys/gals in robes) were wrong before, this is how things are supposed to be now.” The only details left to consider are the relative framing of the case - Brown was the father of a 3rd grader and Plessy was a guy who wanted to sit in a certain railroad car, but both cases dealt with the same constitutional principles.
I imagine the reason that it seems different with respect to gun control is that from our current sociopolitical viewpoint things like laws on handgun restriction are divisive issues with supporters on both sides, whereas we look back at Brown and just see the overturning of a horrific decision that none of us would have ever supported.
I don’t think it’s a stretch to say that there were as many outraged, or at least in disagreement, with SCOTUS going against Plessy in 1954 as there would be if a court went against District of Columbia v. Heller today.
It’s possible that Americans in 2074 will look back at our present lack of gun control regulation with disgust. Or not. Time will tell.
Yes, and these studies also caveat that they can’t really tell if homes with guns attract murderers or if people who are at risk of being murdered go out and buy a gun to protect themselves. They’re pretty worthless except as a talking point, IMHO.
Is that the appropriate comparison? Innocent people accidentally shot to death versus criminals shot to death? Wouldn’t a more appropriate comparison be, innocent people accidentally shot to death versus the number of innocent people saved by guns?
There are between 600 and 700 people that are accidentally killed by firearms every year in the USA.
http://webappa.cdc.gov/cgi-bin/broker.exe
Conservative estimates are that guns are used defensively 100,000 times every year (its conservative because the Department of Justice survey that produced these numbers only surveyed people who were victims of crimes (national crime victimization survey). The fatality rate for robberies is about 4 in 1000. So (assuming that defensive gun uses are in situations that approximate robberies), conservative estimates of defensive gun use would mean 400 lives saved. More realistic numbers on defensive gun use would put the lives saved at about 1000.
Its close enough that noone can really claim that this particular comparison makes their case for them. Of course people on either side will try and most feel that the “real” statistics would support their side of the debate.
I can point to people that want to take away ALL the guns. Some of them are on this board (and some will probably visit this thread pretty soon). I can’t think of anyone that wants everyone to own or carry a gun, they just want all law abiding citizens to be able to do so.
If every eligible law abiding citizen were trained and educated about guns, I don’t see the huge downside to everyone owning a gun.
As for light to moderate restrictions, guns are one of the most regulated things that the average citizen is likely to come in contact with. We are far past light regulation and well into moderate.
See http://www.everydaynodaysoff.com/wp-content/uploads/2013/11/Illustrated-Guide-To-Gun-Control.png
Thats not to say we absolutely can’t have more but too many gun control advocates want regulation for regulation’s sake without very much concern about whether the regulation is an effective way to achieve the desired objective. They’re not even bothering to be rational about it anymore. They just try to grab whatever they think they can get away with.
For example, the gun control lobby recently blew just about all their political capital after Newtown by pushing for an Assault Weapons Ban. Assault weapons accounted for a few hundred (out of hundreds of thousands) gun deaths since 2004 (according to Dianne Feinstein). In fact all rifles put together account for about 3% of all gun deaths and yet this was the focus of the gun control lobby.
Lets take Mexico for example. They have a constitutional right to keep and bear arms but it has been gutted. Firearms regulation in Mexico - Wikipedia
There are plenty of countries where guns are virtually non-existent.
If there is ever enough political will to repeal the second amendment, there will be enough political will to turn us into Mexico.
What I would really like to see is the court define a standard of review for the second amendment. Once we have that, all sorts of things get cleared up.
I’m guessing you really don’t know what the Supreme Court has been saying about the right to arms and the 2nd Amendment for like the last 140 years?
SCOTUS has been boringly consistent saying that the 2nd is not the source of the right to arms thus the right to arms is not in any manner dependent on the 2nd for its existence. The Court has also been boringly consistent saying that the only thing that can be taken from a reading of the 2nd Amendment is that “it”, the right to keep and bear arms, shall not be infringed.
[INDENT]Supreme Court, 1876: "The right . . . of “bearing arms for a lawful purpose” [that of self-defense from the KKK by ex-slaves in Louisiana] . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”
Supreme Court, 1886: "the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”
Supreme Court, 2008: "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in . . . 1876 , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”
[/INDENT]
So are you saying that a new left leaning seating of the Court will start a ***new *line of 2nd Amendment / right to arms reasoning?
Are you saying that not only will the Court ignore their long standing consideration of the nature of the right to arms, (a pre-existing right not granted by, thus in no manner dependent on the 2nd), but will reconfigure the “right” into being conditioned and qualified by the words of the Amendment . . . And actually rewrite the entire philosophical understanding of what a “right” is (an exception of powers never granted) and challenge the foundational principles of conferred powers and retained rights?
Have you considered what this will do to the doctrine of prenumbral rights?
Do you think that Griswold, Roe v Wade etc., are safe under this complete reversal of rights theory you anticipate coming?
Please explain how your vision for the future meshes with the maxim of prenumbral rights doctrine, Justice Harlan’s dissent in Poe v Ullman, quoted here by Justice O’Connor:
"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:
[INDENT]“[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, . . .
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
(internal citation removed, ellipsis in O’Connor’s quote)[/INDENT]
So, exactly how do you propose the Court cleanly cut one of the links out of the “rational continuum” of liberty that represents the bare minimum of protections from government restraint and abridgement of rights?
How can any continuum be maintained after you take a blowtorch to it?
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More like: don’t really care.
But they do care enough to erect castles in the sky from their purposeful ignoring of what’s already been set out. PhillyGuy and others crib together these “you just wait till” scenarios to fluff their fantasy of extinguishing the right to arms without recognizing that the 2nd Amendment is not the source of the right.
Premonitions that a left leaning Court will “correct” Heller are nearly as divorced from constitutional reality as calls for amending the right out of the 2nd or ‘repealing’ the 2nd outright, so the right to arms can be “taken back” and ***real ***gun control can be realized . . .
The later is the most ridiculous; as if the government can “take back” a liberty interest that the people never relinquished but fully retained.
All these anti-constitutional fantasies demonstrate is the pathetic condition of civics instruction in this nation (which has been supplanted with leftist indoctrination, misrepresenting the principles of the Constitution to make it appear to support 20th Century communitarian values).
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I agree completely that the right to arms is a pre-existing right.
The real question is, what difference does it make? Pre-Heller/McDonald (and even now post), it made no difference in CA, or NY, or NJ, or HI. Yes it’s pre-existing, but so what? That doesn’t stop laws from being passed, people being incarcerated, rights being denied, etc.
In practice, it makes no difference if the right to arms is pre-existing or not. It’s useful to understand that in an academic discussion, but not much more useful than that. Focusing on this aspect is wonderful to rally those who agree with you, but it has very little persuasive value in my experience. If the goal is to change the law, change perception, there are better tactics available.
Does the possibility of accidentally hitting someone who wasn’t shooting at you count as a plus, a minus or a wash?
Well, for one thing it destroys the interpretation that the right to arms is conditioned or qualified by the 2nd Amendment’s construction, lexicon or punctuation.
It is what invalidated the “militia right” and “state’s right” interpretations, it is how the Court abrogated Cases v US and US v Tot and the dozens of opinions that rely on them. There are literally hundreds of gun control laws on life support right now, all that’s needed is to challenge them.
We are in the baby steps of enforcing the right to arms. You mention three states without a RKBA provision in their constitutions.
In NJ and CA especially, their legislatures took this to mean that anything was possible, no limits to their authority to restrict arms possession and ownership by their citizens. Since they had no RKBA provisions, their judicial record of ‘in state’ challenges to their own gun laws was non-existent as we came into the main period of gun control, the 1960’s going forward.
What these states did, was just lazily rely on the lower federal court opinions declaring that the 2nd only protected state militia powers and thus had no individual right aspect and even if it did the 2nd wasn’t enforceable upon the states. The former holdings were lies, the latter true, all are dead theories because of Heller & McDonald. We are only a couple years from those decisions, it will take some time . . .
The effects of this are being seen right now in California with “demonstrate need” concealed carry permit schemes being declared unconstitutional
NJ’s cases are winding their way through the district and 3rd Circuit right now. And the whole mess (because such wide splits exist between Circuits) is heading to SCOTUS. I can’t wait!
There will be far more laws struck down in the next few years than passed, mark my words.
But if a group of people were discussing astronomy and a couple of them were saying the sun revolves around the Earth, isn’t in everyone’s best interest to set the facts straight?
I’m not writing to sway PhillyGuy or his like minded comrades, they are serving an anti-constitution political agenda that is much wider than gun rights . . . I post just to disprove what they say so the minds of lurkers and interested people are not polluted with such mistaken beliefs.
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Not quite - a little more than merely the challenge is necessary. I’m very familiar with the state of 2nd amendment litigation. The court still needs to decide in favor of gun rights. This is not a foregone conclusion. In the 2nd, 3rd, and 4th circuits the appellate court has ruled against gun rights. Do you really believe that no matter the makeup of SCOTUS they would be forced somehow to abide by your interpretation of Heller and McDonald? Not a chance - if the makeup of the court changes, they can do whatever the hell they want and a pre-existing right is worth as much as the paper its printed on.
No where in the current litigation landscape does the fact that the 2nd amendment codifies a pre-existing right have a material impact. Gura and Michel aren’t resting their claims on the fact that there is a pre-existing right to arms. The bottom line is that they still need to win in court. Pointing out that you have a pre-existing right is useless in practice.
*I too hope SCOTUS takes up Drake - and I hope the Heller 5 stay in good health.
Reading the dissents in Heller and McDonald one sees the entire foundation for their reasoning rests on reading the words of the 2nd Amendment as conditioning and qualifying the right. The only argument that dispenses with that invention without any room for equivocation is that the right does not, “in any manner” depend on the Constitution to exist.
If the dissents (or anyone else) are relieved of that support, what reasoning can be employed to support their conditioned / qualified theory?
Be sure to note that both Heller dissents acknowledge that the right secured by the 2nd is “individual”; that the question of whether the 2nd protects an individual or collective right has been mooted.
All that’s left in Stevens’ opinion is the question of the “scope” of that individual right, and Stevens relies on the declaratory clause to invent his limits on the right.
I would like to read anyone’s opinion analyzing the dissents (which represent in my opinion, “what’s left on the table” for the anti-gun rights side) and give me a reasoned argument that would reverse *Heller *and McDonald . . .
Why reverse when you can render it moot simply by using less than intermediate scrutiny?
For example, let’s say Scalia and Alito delcare their budding bromance and decide to retire and move to the Netherlands. Obama quickly nominates Kamila Harris and Michael Bloomberg to replace them. They get unanimously confirmed and are sitting justices by June 1.
Then, SCOTUS grants cert to Drake out of New Jersey. Nervous yet? I would be.
The court then determines, that the licensing scheme does in fact implicate the 2nd amendment (the first prong of the Heller test), but only the periphery. And since carry is not part of the core of the right, not so intermediate scrutiny applies. Under that basis, limiting people’s ability to carry is constitutional. Boom, fucked.
Then, feeling empowered, Chicago decides to enact a ban on firing ranges, not directly, but through zoning. It’s challenged because Ezell said that’s not cool, and SCOTUS then says well, zoning regulations don’t implicate the 2nd amendment so that’s fine. Bam, fucked.
Then, seeing the favorable court decisions, CA decides to zone all but the tiniest sliver of land to be not able to have firing ranges. Then they require you need to demonstrate proficiency at the range before purchase. Bam, fucked.
Then, Congress passes a law that says all purchases must be licensed and registered…
You see where this is going?
Pre-existing right or not, it makes no difference. This isn’t about cheerleading or painting a rosy picture. I’m one of the most ardent gun rights supporters around. I think the NRA is too moderate. But it is also important to operate in reality. These battles are won not by appealing to some higher notion of philosophical rights and their origins. It’s about building case after case upon each other. But no mater how good the case is, the right judges need to hear them or else it’s fruitless.
Chess not checkers.
I always see this brought up by people and I always wonder why that’s a defense. If things are worst off but you assume its a given that they will get better in the long run, and better to a degree that suffering through the worst would result in a positive that balances out the negatives, then so what if things will be worst short-term?
It doesn’t matter what would happen in the meantime while we wait for all the guns to be confiscated because you’re assuming it will be better in the long run. The point isn’t to screw up the long term by pretending like we’re doing anything but sabotaging the long term effort by allowing guns now
Griswold is safe because there is no political party aligned against contraception, and no state liable to mount a challenge.
If the next president is a Republican, and serves for two terms, there is a high probability of a Row reversal. (Previously, I wrote that long-term demographics point to good times for the Democratic Party. But the next ten years might not be part of that long-term.)
Abortion is becoming increasingly unavailable in anti-choice states even with Roe in place. Repeal of Roe would ratify what we are already seeing in terms of abortion availability depending on state laws and policies.
I don’t propose anything except voluntary disarmament. (Although I would also welcome universal background checks.)
I observe that recent Supreme Court gun rulings went on a party-line basis. As to what justifications will be given, I admit to lack of expertise there. Surely the law clerks will work out something consistent with how the bosses want to rule.
They don’t really care about the law any mroe than anti-abortionists care about the alw. They want their desired result and if it makes hash out of the law, well, they can live with it.
Thats a hell of an assumption. One that noone on your side has made any reasonable argument for. Guns are long lived assets. I have friends that collect (and fire) guns that were used in WWI. There are plenty of operational guns that are over 50 years old. How long do disarmed citizens have to put up with armed criminals before the tradeoff isn’t worth it anymore?
Any yet violent crime (even gun crimes) don’t seem to have anything to do with the number of legal gun owners or the number of legal guns in circulation.
Gun ownership is about terror and thuggery, not self defense. Owning gun doesn’t make you safer; it does make you better able to bully or kill people you don’t like; see “Second Amendment solutions”.
Same thing as now, with less random killing and political thuggery.
Because that’s what the statistics show; in America a household without a gun has a lower suicide rate than one that does.
The same thing they do now. Guns are essentially useless for self defense.
The “negative uses” are the point of guns. That, and enriching the gun industry, and they are hardly going to support anything that lowers the sale of guns no matter how they are used.
Because the only reason that the Second Amendment is interpreted the ridiculous way it is, is to make the gun industry and gun nuts happy; random citizens are not organized militias. Nor does the Second Amendment accomplish anything but harm, unlike say the First.
Because they are more honest, better people in general than the pro-gun side. And because the gun industry would never allow them to take over their tool.
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