SCOTUS accepts first major 2nd Amendment Gun case in over a decade - NY State Rifle & PA v. Corlett

[AlexanderA]

But even if it had, it's settled by SCOTUS so your definition doesn't mean squat and you know that.

I agree that "bearing" is probably synonymous with "carrying," now. But that doesn't mean that it was synonymous then, despite Scalia's half-baked historical analysis. My whole point is that this is not originalism -- the court is just making up law as it goes along. And the leading case on gun rights now is Heller, which is a confusing mess. I expect that to continue in the forthcoming decision. They'll probably muddy the waters even further.

 

[danez71]

I agree that "bearing" is probably synonymous with "carrying," now. But that doesn't mean that it was synonymous then, despite Scalia's half-baked historical analysis.

It was RBG that stated it in the case I referenced. Scalia cited it in Heller.

My whole point is that this is not originalism -- the court is just making up law as it goes along.

The courts don't make up law, and you know that too.

It's said to have been the 'natural meaning', SCOTUS never stated it to be a military definition as you are.

Sir William Blackstone didn't tie to bear arms with military as you are now. Much of our legal is based from his writings before we were even a country.

I dont see any reason why your definition now should outweigh what has been used here since at least the early 1700's

 

[AlexanderA]

Up until Heller, the 2nd was seen as a collective right, and therefore tied to militia service. That meant that after the demise of the universal militia system in the 1820's, the 2nd was basically a nullity. Heller was a landmark decision because, for the first time, it recognized an individual right. Beyond that, it didn't help gun rights much. Scalia hedged too much.

Certainly, Scalia "made law" in Heller. It was the Stevens dissent that would not have made law.

 

[danez71]

Up until Heller, the 2nd was seen as a collective right,

And this is the crux of the disagreement.

NO, It wasn't seen as a collective right until 1939 when SCOTUS adopted that approach to support the 1934 NFA (of which, ironically to this dicussion, you have lamented against)

It was an adopted approach... not an existing approach as you suggest.


https://www.law.cornell.edu/wex/second_amendment

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate ....... (snip)

You can continue to undermine the 2A under the guise that you know more than SCOTUS, Sir William Blackstone, & centuries of history have shown while picking and choosing tidbits that support your current narrative that appears self contradicting as a whole when compared to your view of the NFA.

I, on the other hand, will go forward living in the real world that centuries of history as a whole show you are wrong and SCOTUS has confirmed youre wrong; thankfully so.

 

[Tommygunn]

Up until Heller, the 2nd was seen as a collective right, and therefore tied to militia service. That meant that after the demise of the universal militia system in the 1820's, the 2nd was basically a nullity. Heller was a landmark decision because, for the first time, it recognized an individual right. Beyond that, it didn't help gun rights much. Scalia hedged too much.

Certainly, Scalia "made law" in Heller. It was the Stevens dissent that would not have made law.

From Stephen Halbrooks' THAT EVERY MAN BE ARMED, I would dispute the idea that the 2A was considered a collective right before Heller. It was one opinion of what the right was, and Halbrook claims it was based on a misinterpretation of a 1941 case. He also claims there is nothing in any of the writings or court cases in the aftermath of the founding to support the collective right theory. Many people dispute the idea that there can be such a thing as a "collective" right. If an individual does not have a right, how can a collective?

Or, to express it mathamatically: 0+0+0+0= .... 0

As I understand it, when a word or phrase in a legal document is given a definition, said word or phrase maintains the same definition each time it is used. Hence, if "the people" means a collective in 2A, it refers to the same collective in the First, Fourth, and Fifth amendments, and everywhere else, too.

So..... how's our Fifth Amendment rights fairing these days????

 

[CapnMac]

Up until Heller, the 2nd was seen as a collective right,

Which was a major point of contention between legislatures, scholars, and judiciaries. And was only given true form in Heller. And there were, and are, many who still hold that Heller's presumption of an individual right is wrong. Many of those same people also believe in draconian laws imputed upon the law-abiding too.

 

[AlexanderA]

There's a way to resolve the "collective" versus "individual" 2A conflict. That is, the "collective" (the militia) includes the "individual," if every individual is assumed to be a member of the militia. I contend that that's exactly what the Founders assumed. If you have a universal militia that includes every able-bodied male (and today it would include females as well as the disabled), then each and every one of those people, individually, would have a right to arms, derived from their nominal membership in the militia. And today, this nominal militia would not even have to be a working practicality, but an idea. Indeed, if some self-selected group tried to organize itself as a "militia," it would lack the crucial element of universality, and therefore have no 2A standing (see Presser v. Illinois).

Anyway, that is how I would have decided both the Miller and Heller cases.

 

[Thomas Mayberry]

Have those of us in both the pro and anti gun communities focused to much on the "well regulated militia" aspect of the 2nd amendment? Are we ignoring what may be the most important part that would establish an individual vs. collective right? Specifically I'm talking about the right of "the people". "The people" is present in the 1st, 2nd, 4th, 9th and 10th amendments. Maybe I'm missing something but it seems to me that it recognizes a right reserved for the individual, not a group or class. If "the people" is a collective right, how would that affect the1st, 4th, 9th, and 10th amendments?

 

[illinoisburt]

Have those of us in both the pro and anti gun communities focused to much on the "well regulated militia" aspect of the 2nd amendment? Are we ignoring what may be the most important part that would establish an individual vs. collective right? Specifically I'm talking about the right of "the people". "The people" is present in the 1st, 2nd, 4th, 9th and 10th amendments. Maybe I'm missing something but it seems to me that it recognizes a right reserved for the individual, not a group or class. If "the people" is a collective right, how would that affect the1st, 4th, 9th, and 10th amendments?

The President's Address to Congress speech covered this issue just fine. He stated quite emphatically near the end, "Our Constitution opens with the words, “We the People”. It’s time we remembered that We the People are the government."

Not to be flippant but the way this was said and the context he put it into was quite obvious his speech writers exactly meant it as it sounds. When you look at policy ideas from many people on the other side of gun control and other issues, they seem very much to believe this is the correct interpretation. Outright saying of "the people" = "the government" in our constitution does a great job showing how these folks are framing their policy ideas.

 

[Pudge]

I agree that "bearing" is probably synonymous with "carrying," now. But that doesn't mean that it was synonymous then, despite Scalia's half-baked historical analysis. My whole point is that this is not originalism -- the court is just making up law as it goes along. And the leading case on gun rights now is Heller, which is a confusing mess. I expect that to continue in the forthcoming decision. They'll probably muddy the waters even further.

Look at early state constitutions. Pennsylvania's from 1790 (actually from 1776 as well) includes the right to "bear arms" in defense of self and state. Clearly the right to bear arms in defense of self is usage that is not indicative of a military design. Other later state constitutions adopt that same wording, indicating that the usage of that term hasn't changed over the years. Other early state constitutions limit the right to bear arms to the common defense or defense of state, they don't assume that just saying the right to bear arms would limit the activity to military use.

 

[Aim1]

Interesting fact about relisting and rescheduling when it comes to SCOTUS cases.

I actually don't know what the difference between relisting and rescheduling is though.


I know this case was relisted quite a few times.

It's not always a bad thing but most of the time it is.



https://www.scotusblog.com/2021/05/no-new-relists-but-you-should-read-anyway/

 

[Aim1]

Update:


I believe the earliest the decision can come out is June 2022.

 

[Frank Ettin]

Becoming too stream of consciousness.

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