Heller ... misses the point of the 2nd Amendment as written, which was both an individual AND collective right.
To me the Supreme Court's ruling on
DC v Heller better clarified the Second Amendment to EXPAND the protection not just for citizen militia (armed citizens) but also for individuals not connected with the militia which resulted in Second Amendment protection for everyone. This is not a take away rather expansion of the Second Amendment.
Bill of Rights was written after the US Constitution to ensure the Constitution remained viable (And updated/improved by Amendments). Many countries like North Korea and China also have great sounding constitutions. Heck, North Korea's constitution states citizens have the right to freedom of speech, the press, assembly, demonstration (Article 67); freedom of religious belief (Article 68) and even right to relaxation (Article 71) -
https://en.wikipedia.org/wiki/Constitution_of_North_Korea
But the enforcement behind their constitutions sucks and why the wonderful sounding rights only applies to those citizens North Korean dictator likes and why Chinese demonstrators in Hong Kong are repressed by the Chinese communist party and they are screaming for our Second Amendment.
As justice Gorsuch said, "
Bill of Right is a set of promises on paper ... What makes a promise worth the words on paper is the enforcement mechanisms behind it ... Our Bill of Rights is excellent" -
https://www.thehighroad.org/index.p...with-question-on-the-second-amendment.856201/
The 2nd Amendment is no different. Trying to understand its meaning by reading the mere words is extremely naive. You have to take the entire judicial history into account.
Absolutely.
And keep in mind that many countries have constitutions but only USA has the Bill of Rights (Specifically the Second Amendment), making us unique and why what happened in other countries regarding their gun rights is not applicable to USA.
When the Bill of Rights was being put together by the founders from various proposals submitted by the states, the Second Amendment was finalized and summarized to three distinct ideas:
- A well regulated Militia (followed by a coma)
- Being necessary to the security of a free State (followed by a coma)
- The right of the people to keep and bear Arms, shall not be infringed (note the coma after "Arms")
Our founders had just defeated the tyranny of British monarchy and wanted to prevent future tyranny, foreign or domestic. While there exists a federal military (Army, Navy, Air Force, Space Force, Marines, Coast Guard) to defend the country against foreign enemies, states also maintain their own National Guard units along with state militias to maintain law and order against domestic enemies. Yes, as constitutional scholars noted, those comas play a significant role of separating ideas -
https://www.thehighroad.org/index.p...-second-amendment.856201/page-2#post-11375346
And when the first Congress met, it was clarified the Second Amendment also applied to protection of individuals which the Supreme Court confirmed in
DC v Heller in affirming the "keep" part and
Young v Hawaii going to the Supreme Court will likely affirm the "bear" part of the Second Amendment.
Here's repost from another thread discussion -
https://www.thehighroad.org/index.p...-second-amendment.856201/page-2#post-11375346
Second Amendment Scholar says Assault Weapons Ban "won't pass constitutional muster"
Since millions of hand guns and long guns are in "common use" and the Second Amendment is worded, "A well regulated militia ... , ("coma") the right of the people to keep and bear arms, shall not be infringed" with a deliberate "coma" to differentiate right to keep and bear arms was meant for the people (After much research, intent at the time of the writing of the Constitution applied to individual rights as affirmed by Heller ruling).
The term "Assault Weapon" targets cosmetic features and these popular firearms commonly used are actually legal semi-auto firearms and ban won't pass constitutional muster. Millions of "Assault Weapons" were purchased legally and are "commonly used" with large capacity magazines and ban on firearms and magazines (modern ammunition storage devices are "Arms" as ruled by federal courts) won't pass constitutional muster.
Government's own studies found there was no appreciable reduction in violent crimes from "Assault Weapons" ban and only took guns away from law abiding citizens. Mass shootings (4 or more people killed) occur in so called "gun free zones" and may actually attract shooters to these areas because they are unprotected.
And in light of recent Texas church shooting ... "Keep" means store and "Bear" means carry.
Justice Ginsburg defined, “... natural meaning of ‘bear arms’ is to 'wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.'” -
https://fedsoc.org/commentary/publications/concealed-carry-and-the-right-to-bear-arms
The Supreme Court explicitly included both concealed carry and open carry in its definition of “bear arms".
I believe future Supreme Court cases will further expand the Second Amendment to apply protection not just for self defense at home but self defense outside the home as well and
Young v Hawaii could be the next Heller -
https://michellawyers.com/young-v-hawaii/
And I anticipate several states' ban on certain modern semi-auto rifles will also be challenged in the Supreme Court with cases going through the federal courts as we speak.
For Heller 2 case in 2012, a 50 page dissent was written by a judge in disdain of court's actions essentially saying DC's ban on semi-auto rifle was unconstitutional under Heller.
This dissent was written by ... < wait for it > ... now justice Kavanaugh!
-
https://www.cadc.uscourts.gov/inter...C748525791F004D84F9/$file/10-7036-1333156.pdf
"... the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional"