N555
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Government 101.
SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?
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D.B. Cooper
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True but if you're talking about over ruling Heller...like others have said, they don't seem afraid to overturn rulings.
AlexanderA
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I don't believe this is true. I don't know a single current machine gun owner that would openly admit they don't want the Hughes Amendment repealed. People don't buy machine guns as crass financial speculations. They buy them because they like the guns. As an MG owner myself, my "windfall profits" mean nothing to me, since I don't plan on selling. On the other hand, I would very much like to expand my collection.
AlexanderA
Member
The answer to that is to go back to the original, "notional" meaning of "militia" under the 2nd Amendment. The Founders left writings that said that by "militia," they meant practically everybody. A 90 year old would muster if he was physically able. (Never mind that women and slaves weren't included back then. Small details.) And remember that the 2nd Amendment was adopted in 1791, a year before the first Militia Act of 1792. So we establish the "2nd Amendment militia" as the "whole body of the people," and then carve out a subset for organizational purposes. That seems to be exactly what happened.
A note about being careful to understand the difference between the meaning of key terms in general conversation versus in legal issues discussions.
1. As specified in 10 U.S. Code § 246, the militia is composed of two groups:
- The Organized Militia is the National Guard and Naval Militia, which is under the control of each governor and state adjutant general, and not under federal control until called into federal service.
- The Unorganized Militia is all able-bodied males from 17 to under 45, who are not members of the Organized Militia.
2. The term active/guard/reserve (AGR) refers to a very specific active duty program for part of the full-time work force at National Guard and Reserve units to be on federally funded active duty instead of being federal civil service technicians. The AGR program came into being in the early 1980's at the direction of Congress as a possible means of preventing Guard and Reserve technicians from forming unions by shifting them all to active duty military. The plan was judged too expensive for complete conversion, and the end result became a mix of full time excepted-service civil service technicians and active duty AGR staff at the units. In the provisions of the law, National Guard AGR are under full control of the governors and adjutants general during non-federal service. [I was part of the National Guard Bureau office that ran the nationwide AGR test and implemented the final AGR program, and served as an AGR member at unit level myself in 83-86.]
AlexanderA
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In an "originalist" interpretation of the 2nd Amendment (which Scalia's opinion in the Heller case certainly is not), the current USC definition of the militia is irrelevant. What matters is what the militia was, according to the Founders, in 1791. What they said was that the militia basically included everyone except certain public officials. (And of course women and slaves, exclusions which would not apply today.) But they didn't specify age limits, either on the lower or the upper end. It was understood that the militia members had to be physically able to bear arms, but that was under the lax medical standards of the time. If you had a pulse and were able to stand in line, you were in. Obviously children and the aged infirm wouldn't qualify.
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 prefatory clause, "A well regulated militia, being necessary for the security of a free state" is crystal clear if it is simply read by an objective reader. The authors thought a properly functioning militia was necessary for the security of a free state. Simple as that. And in order for such a militia to exist it's necessary for the civilian populace to be armed, which is covered by the operative clause "the right of the people to keep and bear arms shall not be infringed". Note that while the existence of a well regulated militia depends on the right of the people, there no dependence of the right of the people on the militia. No "only when", no "subject to", no "while serving in".
Please note that this interpretation of the prefatory clause relies on the prefatory clause, the whole prefatory clause and nothing but the prefatory clause. No taking words like "militia" or "well regulated" out of context and spinning elaborate explanations how the prefatory clause goes against grammar, history and common sense to magically change the meaning of the operative clause. It can't. It's an absolute clause (aka absolute phrase) and absolute clauses add background to the operative clause but do NOT limit or change their meaning. (for more on absolute clauses see here and here)
The Supreme Court got it exactly right in Heller:
a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. DC v Heller , page 1
The prefatory clause, "A well regulated militia, being necessary for the security of a free state" is crystal clear if it is simply read by an objective reader. The authors thought a properly functioning militia was necessary for the security of a free state. Simple as that. And in order for such a militia to exist it's necessary for the civilian populace to be armed, which is covered by the operative clause "the right of the people to keep and bear arms shall not be infringed". Note that while the existence of a well regulated militia depends on the right of the people, there no dependence of the right of the people on the militia. No "only when", no "subject to", no "while serving in".
Please note that this interpretation of the prefatory clause relies on the prefatory clause, the whole prefatory clause and nothing but the prefatory clause. No taking words like "militia" or "well regulated" out of context and spinning elaborate explanations how the prefatory clause goes against grammar, history and common sense to magically change the meaning of the operative clause. It can't. It's an absolute clause (aka absolute phrase) and absolute clauses add background to the operative clause but do NOT limit or change their meaning. (for more on absolute clauses see here and here)
The Supreme Court got it exactly right in Heller:
a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. DC v Heller , page 1
AlexanderA
Member
Scalia's interpretation is historically unmoored. There was no controversy in 1791 about an individual's right to weapons for self-defense -- it was simply taken for granted. Hence, there was no need for a constitutional amendment to address that. What was fresh in the Founders' memory was the British raid on Concord to seize the weapons of the colonial militia. They didn't want the federal government, in the future, to be able to seize the weapons of the militia. In addition, in 1791, the newly constituted country was leery of a standing army. It couldn't afford one, and a standing army was considered a potential threat to liberty. The defense needs were to be delegated to the body of the citizenry. Therefore, the two clauses of the 2nd Amendment are inseparably linked.
The real question is what constitutes the militia. The contemporary writings of the Founders indicate that they thought it was practically everyone. Since the militia was thought to be universal, that translates into an individual right of ownership. And since the citizenry was in lieu of a standing army, it would follow that the individuals should be as well armed as such an army (that is, with the same types of weapons).
OP
OP
LiveLife
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Gentle people of THR, the OP is "SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?" and not about definition of militia.
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Let me repeat: The authors thought a properly functioning militia was necessary for the security of a free state. The prefatory clause is important, as you have explained. But it does NOT restrict or limit the objective clause. Having an armed populace is a requirement in order to have a militia. But the reverse is not true; you don't have to be in the militia in order to have the right to keep and bear arms. So Scalia did get it right:
a) The Amendment’s prefatory clause announces a purpose,
It's an important purpose, the maintenance of a well regulated militia
but does not limit or expand the scope of the second part, the operative clause.
As important as the prefatory clause may be, it does NOT limit the operative clause, "the right of the people to keep and bear arms shall not be infringed".
And since it's a right of the people it applies to everyone, just like it does in the First and Fourth amendments.
AlexanderA
Member
Yes, women and slaves would have been excluded. But since then, the 13th, 15th, and 19th Amendments have extended full citizenship to blacks and women. The "notional" 2nd Amendment militia, today, would certainly include them. Age and physical disability are harder issues. The Founders just assumed that anyone who could stand in ranks would be part of the militia. That obviously leaves out children and the seriously impaired. In terms of gun rights, we want the "militia" to be as broad as possible.
OP
OP
LiveLife
Member
As the OP, could I kindly ask that we move our discussion past militia as I believe DC v Heller already put that issue to rest?
Thank you.
And federal cases including Duncan v Bonta already ruled modern firearms/magazines are "arms" protected by the 2A as already ruled in DC v Heller that modern semi-auto magazine fed pistols are protected by the 2A. And justice Kavanaugh so eloquently argued in Heller 2 that modern semi-auto magazine fed rifles are also protected by 2A to most likely be included in current gun rights cases on hold pending NYSRPA v. Bruen.
Thank you.
Since SCOTUS already ruled in DC v Heller that 2A protects individual's right to keep and bear arms, I believe Bianchi v Frosh (MD assault weapon case), Duncan v Bonta (CA magazine ban case), ANJRPC v. Grewal (NJ magazine ban case) and NYSRPA v. Bruen (NY concealed carry case) rulings are going to expand that individual right without the need for militia inclusion.And federal cases including Duncan v Bonta already ruled modern firearms/magazines are "arms" protected by the 2A as already ruled in DC v Heller that modern semi-auto magazine fed pistols are protected by the 2A. And justice Kavanaugh so eloquently argued in Heller 2 that modern semi-auto magazine fed rifles are also protected by 2A to most likely be included in current gun rights cases on hold pending NYSRPA v. Bruen.
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AlexanderA
Member
The militia connection is all-important when it comes to the types of weapons protected by the 2nd Amendment. Specifically, "weapons of war" (AR-15s and the like) are protected if the Militia Clause is given due weight. Scalia didn't want to go there (his big fear, apparently, was legalizing machine guns), so he decoupled the Militia Clause from the rest of the Amendment. That's exactly why the Heller decision is not as pro-gun as people like to think.
The real question, as I have said, is in defining the "militia." A broad, or universal, definition means that the right to military arms applies to all of us as individuals.
OP
OP
LiveLife
Member
Our discussion for this thread should focus on how these curent cases before SCOTUS could be the turning point for various states' ban on "modern types of firearms" like semi-auto rifles/magazines being protected by the Second Amendment just as "modern types of free speech" like emails and texting being protected by the First Amendment.
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AlexanderA
Member
If the Heller case has put the militia issue to rest, we're sunk. If the Militia Clause remains a nullity, there's plenty of fodder in Heller to allow the Court to declare "assault weapons," hi-cap magazines, etc., to be unprotected.
OP
OP
LiveLife
Member
You can certainly start a new thread to discuss the intended meaning and current/modern application of militia in a different thread.
As the OP, I am focused on expansion of DC v Heller ruling of individual right to keep and bear arms as applied to "modern types of firearms" like semi-auto rifles/magazines being protected by the Second Amendment just as "modern types of free speech" like emails and texting being protected by the First Amendment as already ruled by various courts.
Once again, I am making a request as OP to let's continue thread discussion narrowed to this focus.
Thank you.
As the OP, I am focused on expansion of DC v Heller ruling of individual right to keep and bear arms as applied to "modern types of firearms" like semi-auto rifles/magazines being protected by the Second Amendment just as "modern types of free speech" like emails and texting being protected by the First Amendment as already ruled by various courts.
Once again, I am making a request as OP to let's continue thread discussion narrowed to this focus.
Thank you.
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D.B. Cooper
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May I humbly submit that you're missing the forrest for the trees. Your concern seems to about para-military items, such as 30-round magazines and semi automatic rifles. The answer to your question lies squarely in the court's view of the second clause of the second amendment.
OP
OP
LiveLife
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When I started this thread, my hope was that we stay focused on the progression of these gun rights cases that FINALLY have SCOTUS attention to be reviewed and ruled, hopefully in favor of gun owners.
These are hot topics most of us gun owners feel very emotional/fundamental about and I certainly expected deviation of discussion and hijacking of thread (With anticipated efforts to bring thread discussion back on topic of "narrow focus") but felt that progression of these cases that I have watched for decades to finally be heard by SCOTUS was significant enough to warrant a new "following of cases" thread.
Of course, there have been countless thread discussions about original/intended definitions and modern application of the Second Amendment and THIS THREAD IS NOT THOSE THREADS which often end up spirling down the who's more right and eventually getting closed.
If you want to discuss the comprehensive details of such, please respect and honor my simple request to simply follow these cases as they progress through SCOTUS and defer discussion on other threads or stay focused on these gun cases as they are reviewed and ruled by SCOTUS.
Thanks again.
These are hot topics most of us gun owners feel very emotional/fundamental about and I certainly expected deviation of discussion and hijacking of thread (With anticipated efforts to bring thread discussion back on topic of "narrow focus") but felt that progression of these cases that I have watched for decades to finally be heard by SCOTUS was significant enough to warrant a new "following of cases" thread.
Of course, there have been countless thread discussions about original/intended definitions and modern application of the Second Amendment and THIS THREAD IS NOT THOSE THREADS which often end up spirling down the who's more right and eventually getting closed.
If you want to discuss the comprehensive details of such, please respect and honor my simple request to simply follow these cases as they progress through SCOTUS and defer discussion on other threads or stay focused on these gun cases as they are reviewed and ruled by SCOTUS.
Thanks again.
D.B. Cooper
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I don't understand how one can have a discussion on how the Supreme Court will rule regarding 30 round magazines and AR15s without a discussion of the way in which the Court will interpret the 2nd Amendment, which would, of course, include the originalist view as well as the "living document/loose construction" view (of which this discussion has been lacking-probably because no one here supports that view.) But I'll refrain and let you redirect as you feel appropriate.
I agree, there is no need to get bogged down in discussions of the meaning of "militia", Heller makes it quite clear what sort of weapons are protected and why semiautomatic rifles are among them. Besides:
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. DC v Heller, page 1 [emphasis added]
Why modern arms are protected, just like modern speech:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. ibid, page 8
In the formal writing of a Supreme Court decision, saying that an argument "borders on the frivolous" is a polite way of saying it's idiotic. Which it is.
United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. ibid, page 2
Semiautomatic rifles of all kinds are in common use for lawful purposes, including so-called "assault weapons" and are therefore protected by the Second.
The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. ibid, pages 2-3
Semiautomatic rifles are also an entire class of "arms" that Americans choose for lawful purposes, among them self-defense.
TTv2
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If you're talking about the "reasonable regulations" verbiage, I think that had to be included because without it in the ruling it would be illegal to deny someone like OJ Simpson a gun, who by all accounts is a murderer and convicted kidnapper. It is reasonable to regulate that he is not allowed to have a gun. Same with drug users and schizo's.
I don't see how banning AWB's and magazines that are in common use as reasonable, if anything that's the definition of unreasonable.
The reason I don't see the court touching AWB and magazine laws is they apparently believe that the majority who live in certain states have a right to deny rights to the minority who live in the same state. Someone who lives in Boston or NYC clearly has less rights than someone who lives in Dallas or Jacksonville and SCOTUS seems to like that.
Sure, people have every right to up and leave those places and move to freer states, but that is easier said than done.
OP
OP
LiveLife
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And we have a decision on NYSRPA v. Bruen (NY concealed carry case) - https://www.huffpost.com/entry/supreme-court-new-york-gun-law_n_627eb653e4b04353eb04657c?78i
"Supreme Court Strikes Down New York Gun Law, Setting Major New Precedent - The ruling from the conservative justices puts other state laws into immediate legal jeopardy and dramatically expands reach of the 2nd Amendment."
"Supreme Court Strikes Down New York Gun Law, Setting Major New Precedent - The ruling from the conservative justices puts other state laws into immediate legal jeopardy and dramatically expands reach of the 2nd Amendment."
James Collins
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I stopped listening to Joe and any of his garbage
stillquietvoice
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Wish I could like this more than once. It's about time yhat 2a is seen as more than a second class right.
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