Heller: 2nd Am. Individual vs. Collective

[usmarine0352_2005]

Thought on Heller vs. DC for today:

Even though it may not be a legal precedent (I do not know), isn't the mere fact that we are allowed to have firearms a base to say that the 2nd Amendenment is considered an individual right by the courts, and not a collective right?

 

[tube_ee]

No.

The only base you can use to say what a provision in the Constitution really means is the body of court decisions addressing that question. Well, it's not really the only base, but it's the one that matters. What we think has little, if any, legal meaning.

That's why Heller is so important. Because to this point, the various and conflicting rulings on the meaning of the 2nd Amendment have left everybody with a place to stand... because nobody has been able to definitively say "This is what the 2nd Amendment means."

We are about to see the actual meaning of one of the Bill of Rights amedments decided... 209 years after it was written. This is history.

After this, isn't the 3rd the only one left legally undefined? Has there ever been any ruling, at any level of the Federal Judiciary, on the 3d Amendment? Maybe during Reconstruction, but that's all I can think of.

--Shannon

 

[ilbob]

Even though it may not be a legal precedent (I do not know), isn't the mere fact that we are allowed to have firearms a base to say that the 2nd Amendenment is considered an individual right by the courts, and not a collective right?

You are allowed to have haircuts too. That does not mean the courts have recognized some right to have them.

 

[everallm]

A "positive" Heller finding in itself does squat squared.

It's the ability, using the finding to build a body of case law and precedent from challenges that will move gun rights forward.

As an example, the Chicago pistol ban, the Sullivan Act or NJ's definition that an a 16 round magazine makes an rifle an assault weapon will still be legal and enforceable at Heller +1.......Until they are challenged using Heller as the basis.

 

[James T Thomas]

stay clear

Further; to create or acknowledge that such an artificial division exists plays right into the strategies of the Socialists who would "dissolve" the Amendment. To selectively have ruling on "Collective" v. "Individual" is a divide and conquer strategy. The Amendment stands. The U.S. Constitution is the Supreme Law of the land. -Not the Supreme Court.

There is a similar argument that is often brought up as to what a Militia is?
Some day this may even degenerate in to what "arms" are.
And so it goes. If the people of our Republic will be accepting.

The last statement written in the Amendment says it all : ..."shall not be infringed.
Nothing construed, interpreted, ruled upon or otherwise, shall even approach the fringes of this Right!

 

[H088]

I don't even understand the argument backing the "collective", why would the founding fathers put in the bill of rights, the right of the army to own guns?

If they want to make everyone that owns guns, go to militia training I would do that, but usually the anti gun crowd also hates militias.

 

[ctdonath]

My take on "collective" is the right to crew-served arms.

I can't run my howitzer by myself, ya know...

 

[IllHunter]

Not if you live in D.C. ..

and lust for that Taurus 4510TKR to protect your cave.

A "positive" Heller finding in itself does squat squared.

 

[RP88]

there has been precedent for both collective and individual right to bear arms, but none of those decisions were clear-cut; they just adressed the legality of laws instead of the definition of an amendment.

As far as I'm concerned, this is the only true second amendment case to ever hit the SC.

The ruling will be within the next three-to-four weeks. Hopefully, it is a good one. The waiting is something that alot of people on both sides are dreading.

 

[TwitchALot]

I'm honestly downright scared of what will happen. If the Court rules it's an individual right, and 922o'ers take another case to court, then what? What are you going to argue? There are reasonable regulations that can exist with the Second Amendment (like registration), but an outright ban is constitutional? I don't think any court today would be just fine with machine guns without registration or other controls. Then what?

We've essentially made the court say that registration is a valid measure of gun control and is acceptable under the Second Amendment. How's that going to work for us?

 

[I LIKE IT!]

You'd think that huh, I mean the only real thing that "gives" rights is your will and thought as a being of this World.

People will do what they want, there is no "right" and there is no wrong.

My .02

 

[XD_fan]

Its really just simple english. The People are the People.

1st - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2nd - A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The collective rights people have built a castle on sand. Why would the people change meaning for a single amemdment. Regardless of the descriptive phrase at the beginning of the 2nd. Guess the founders all had an attack of stupid when writing the 2nd and didn't say what they really meant. *sigh*

 

[W.E.G.]

Don't hold your breath waiting for a favorable SCOTUS ruling on ownership of post-86 machine guns.

 

[pyle]

Its really just simple english. The People are the People.

1st - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2nd - A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The collective rights people have built a castle on sand. Why would the people change meaning for a single amemdment. Regardless of the descriptive phrase at the beginning of the 2nd. Guess the founders all had an attack of stupid when writing the 2nd and didn't say what they really meant. *sigh*

Possibly, however, I don't believe the Founders every thought the 2nd would be twisted "stupid" by the anti. To them it was pretty straight forward...

 

[ilbob]

We've essentially made the court say that registration is a valid measure of gun control and is acceptable under the Second Amendment. How's that going to work for us?

If nothing else, we will have some idea where we stand. If they rule a complete ban on usable firearms in a home is unconstitutional, and I think that is likely, that is the baseline we start with. Right now, we don't even have that.

I'd love to have the right (or privilege even) to own a relatively inexpensive FA firearm. But I am not sure the RTKBA actually means you have the right to buy FA firearms at a reasonable price.

Another court might well decide that "arms" is plural so you have a right to more than one. Good thing, right?

It is entirely possible that at some point a court could rule that knives are arms, so you have a right to won them as well. Good thing, right?

Another court might well decide that since the 2A says nothing about being allowed unlimited numbers of arms, and two is plural, that a limit of two is acceptable. Not so good.

Pretty soon a court might well rule that steak knives are arms, and if you have 2 steak knives, you have your constitutionally mandated "arms" and are not entitled to anymore. Very not so good.

Thats why this is going to be a decades long run of court cases to flesh out just what it means, assuming we win this one with something meaningful.

Personally, I would bet a lot of people are more worried about the collection (aka arsenal) you have in your basement (you know those 3 bolt action milsurp rifles, your granddad's shotgun, and that 22 pistol your uncle gave you when you turned 16 40 years ago) than whether you have a FA firearm or not.

 

[ctdonath]

I am not sure the RTKBA actually means you have the right to buy FA firearms at a reasonable price.

RKBA does mean that the gov't cannot prevent you from buying FA by artificially forcing the price to prohibitory levels. See "poll tax".
If not for 922(o), M16s would go for <$1000. It's the law causing obscenely high prices, not the free market.

 

[ilbob]

RKBA does mean that the gov't cannot prevent you from buying FA by artificially forcing the price to prohibitory levels. See "poll tax".

You may think that, but you also may think that the BOR protects you against unreasonable searches and other government excesses. It does not because the courts almost always rule in favor of government power over individual liberty. If that was not the case road side drunk driving checkpoints would have been ruled unconstitutional about 10 seconds after the first one popped up.

I am inclined to agree there is a strong link between the FA ban and the poll tax, but only if the courts rule that FA firearms are part of the RTKBA. There is nothing to prevent them from deciding that FA arms are not covered by the 2A, no matter what its scope is otherwise.

There is nothing logical about such a decison, but there was nothing logical about Roe vs. Wade either.

 

[Kharn]

It does not because the courts almost always rule in favor of government power over individual liberty.

Within the last two weeks, the courts have ruled that even if a person consents to the search of a bag under their control, finding something in the bag that indicates it does not belong to that person (the case being about male clothing in a suitcase the authories thad asked a female for permission to search, at the bottom of which was an illegally-possessed handgun), the search must stop immediately as proper consent has not be acquired.

Kharn

 

[ConstitutionCowboy]

RKBA does mean that the gov't cannot prevent you from buying FA by artificially forcing the price to prohibitory levels. See "poll tax".
If not for 922(o), M16s would go for <$1000. It's the law causing obscenely high prices, not the free market.

This can be verified simply by looking at the price of oil as affected by the laws restricting exploration, production, and refinement.

It makes no difference how directly or indirectly government infringes the right. "Shall not be infringed" is quite clearly understood. It isn't about ignorance of the Second Amendment, it's about IGNOREance the Second Amendment.

Woody

 

[.cheese.]

You are allowed to have haircuts too. That does not mean the courts have recognized some right to have them.

Well, when congress passes a ban on haircuts - I'm outta here.

 

[ilbob]

It does not because the courts almost always rule in favor of government power over individual liberty.

Within the last two weeks, the courts have ruled that even if a person consents to the search of a bag under their control, finding something in the bag that indicates it does not belong to that person (the case being about male clothing in a suitcase the authories thad asked a female for permission to search, at the bottom of which was an illegally-possessed handgun), the search must stop immediately as proper consent has not be acquired.

Note the use of the phrase "almost always".

The SC recently ruled in favor of individual liberty in a money laundering case too. But note that instead of throwing out all the financial reporting requirements, they narrowly trimmed government power in an almost inconsequential way.

 

[legaleagle_45]

After this, isn't the 3rd the only one left legally undefined? Has there ever been any ruling, at any level of the Federal Judiciary, on the 3d Amendment? Maybe during Reconstruction, but that's all I can think of.

There has been no case from SCOTUS on the 3rd and only one case in the Federal Court of Appeals which involved the 3rd. Of course, the 3rd was mentioned in passing in Griswold to help establish the foundation for a right to privacy...but that is about it.

 

[ilbob]

when was the last time anyone demanded a US citizen quarter a soldier anyway? the civil war? the military either sleeps in motels or brings its own quarters most of the time.

 

[divemedic]

The purpose of the third is not to prevent the Army from using your home as a hostel. What the 3A is about is preventing the government from putting agents in the homes of troublemakers to stifle dissent.

In France during the late 1600's, the Huguenots were persecuted in such a fashion by troops known as dragonnades. Click to read about them.

Since this was less than 100 years before the founding, the FF's would certainly been familiar with the concept, and thus placed the 3A in the BOR to prevent a government from doing the same in the new Republic.

The modern equivalent of this is placing "virtual" soldiers in your home via electronic snooping, illegal wiretaps, and other means of rooting out "troublemakers"

 

[usmarine0352_2005]

when was the last time anyone demanded a US citizen quarter a soldier anyway? the civil war? the military either sleeps in motels or brings its own quarters most of the time.

When was the last time people heard of cops going into homes and taking people's guns from them?






......Hurricane Katrina.