To Hell with Heller

Status
Not open for further replies.
Art is correct about the misplaced expectations for instant gratification. The cases cited in the article were argued before Heller and could not have been structured around, or had any references to, Heller. The decisions in those cases include a last-minute mention of Heller as a nod to the Supreme Court, but neither the arguments or decisions were based on Heller.
 
"...Life, Liberty, and the Pursuit of Happiness--That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government"

As I understand it, the Bill of Rights was created and pushed for by the anti-federalists as a bulwark against a federal government overstepping it's bounds. Although not explicitly stated in the 2nd amendment that it is a right of revolution, it's intent is surely to enable it's citizens to overthrow the government if it is no longer of the people. But that right to revolution does not exist when there are peaceful and legal means of bringing about change.
 
The Heller decision enumerates self defense as the purpose of the 2nd Amendment--it makes no distinction between criminals and the government, thus both are the right of the citizen to protect oneself against.
 
so, he cites local cases upholding their own laws?

Um, okay.

Well, if there is only one thing that the case did, it established that there is a right; it is confirmed. It is not a privilege allowed by states and locales at the permission of the federal government. It is a right that must at least exist, even if it isnt as expansive as we all want it to be, everywhere in this nation one way or another. For once, the whole NATION has a block that is no longer shrouded in grey area that could be taken away without a legal case made to do so. People don't seem to realize that. But, with so many suits popping up to overturn other bans, things will and can get better.
 
Before Heller there was no ruling regarding the status of individual vs collective right,.

There were many rulings from the courts of appeals dismissing claims based on the Second. With only a tiny handful of exceptions they essentially erased the Second from the BOR. Heller opened up a front where previously there had been none. Think of it as the Normandy landings. We still need to take Paris, and the Ostfront on the political side that's been waging for long years is still there. What the courts won't do we can force through political channels. Prior to Heller we had only the political channels, though. Legal challenges were doomed from the outset.
 
Heller will be defined by what we decide it means while it is still fresh in the minds of many.

Just like the whole anti-gun rights, 2nd Amendment collective argument was not even considered around the time the NFA was made.

It was a slow gradual thing they convinced more and more people of until it actualy became a 'legitimate' argument that we somehow had to win against in court. Now merely having that stated is a victory?
:scrutiny:

How Heller is spun by either side will have a major impact in the future, especialy the distant future when various spins starting now have gained support.

We are shaping what Heller means in courts at this moment, and Heller will be a minor ruling merely cited by both sides 10-20 years from now. It often takes several years for a case to even make it to the Supreme court.

Use it while it lasts, and use it well to establish permanent results.
 
Personally, I thought the limiting language in the opinion was well-written. On the one hand, it is written so that it will easily dispose of immediate challenges to NFA, 922(o) or the typical pro-se Second Amendment challenge.

Are you pleased that (in your opinion) a challenge to 922(o) will be easily disposed of? I sure hope not. Look at the NFA - it is clear that even the Roosevelt Administration didn't think that it could ban full autos, and Miller went out of its way to not even look at whether the gun in question was protected. IOW, the things can't be banned, and the government knows it - but they've limited the supply since 22 years ago. You think that this is OK? Do you think that there is one iota of difference between the DC law (you can't own a handgun in DC if it wasn't registered prior to X date in 1976) and the Hughes Amendment (you can't own a full auto in the US if it wasn't registered prior to X date in 1986)???

BTW, I don't think that Heller so easily disposes of a challenge to 922(o). Why? Because it spoke of unusual or dangerous weapons. If they were so dangerous, how come anyone residing in an NFA state with sufficient money and a clean background is allowed to purchase pre-ban full autos? As to "unusual" (as in "not common"), they've been either highly restricted (1934-1986) or banned (1986-present) - so they never got a chance to become common; that baby has been smothered to death in its crib.

I'll tell you what: 922(o) is GOING to be repealed - it simply cannot stand scrutiny at any level, not in light of Heller AND the fact that full autos have NEVER been outlawed by federal law. It simply isn't rational: how can someone who owns a pre-ban M16 be rationally prevented from purchasing a post-ban M16 that is functionally identical (and was maybe even manufactured in the same batch in the Colt factory in 1986)? When 922(o) dies a long-overdue death, 5 million people will either buy or retrofit a happy switch into their ARs and other rifles within 10 years. THEN let's see what any would-be tyrant is able to do.
 
Yellowfin

The Heller decision enumerates self defense as the purpose of the 2nd Amendment--it makes no distinction between criminals and the government, thus both are the right of the citizen to protect oneself against.

Self defense is ONE purpose of the 2nd. Another is stated in the 2nd itself: "...being necessary to the security of a free state...." And the purposes are not limited to these - but those were the only 2 discussed.
 
This is a bit off topic

But I think some people are getting way too caught up in things like repealing the '86 ban on machineguns. In the military full-auto is sopposed to almost never be used unless you are a support gunner, it really doesnt make a huge difference in the carrying out of the second amendment and we need to focus on more realistic goals like overturning already existing state AWB's, making castle doctrine law, and preventing any new bans/restrictions.
 
Where is "diatribe against the government" in the First?

A diatribe is a form of expression, and perhaps assembly and grievance as well. I don't think a right to revolution is a part of bearing arms.
 
A diatribe is a form of expression, and perhaps assembly and grievance as well. I don't think a right to revolution is a part of bearing arms.
People coming together with individualy owned arms to fight in militias, often what would resemble a 'posse' to us today was what they had in mind.
A town could form a loose militia to defend against threats. Native American raids were one such common threat.
British Redcoats were one that was fresh in the minds of the founding fathers. Don't forget it was not Americans fighting British, but the British fighting the British until what would be America won.
They also were strongly influenced by the Magna Carta, where people with arms essentialy captured thier ruler and forced him to respect and grant rights of the people.
They pictured normal Americans possessing the capability to act in similar fashion to secure liberty if government infringed.

Many arguments and comments were made by various founding fathers that showed they believed armed conflict would eventualy be inevitable because government would naturaly infringe on rights, and that only the population willing to take up arms against the government and doing so on occasion would keep the government working for the people.

One of the more famous is by Thomas Jefferson:

"God forbid we should ever be twenty years without such a rebellion.
The people cannot be all, and always, well informed. The part which is
wrong will be discontented, in proportion to the importance of the facts
they misconceive. If they remain quiet under such misconceptions,
it is lethargy, the forerunner of death to the public liberty. ...
And what country can preserve its liberties, if it's rulers are not
warned from time to time, that this people preserve the spirit of
resistance? Let them take arms.
The remedy is to set them right as
to the facts, pardon and pacify them. What signify a few lives lost
in a century or two? The tree of liberty must be refreshed from
time to time, with the blood of patriots and tyrants.
It is its natural manure."
 
I think most people have or had unrealistic expectations about what they wanted from Heller. We got a really great win with heller. Anyone that expected "shall not be infringed means exactly that, all gun laws are null and void" was in fantasy land. I'm a libertarian but to expect things to change like that in an instant is just not using any real logic. Luckily the people working heller understood what this author does not.
 
In reguards to heller let me quote winston churchill
It is not the end, or the beginning of the end. it is perhaps the beginning
 
I think some people are getting way too caught up in things like repealing the '86 ban on machineguns
Considering that the '86 ban is implemented with threats of decades in prison and a quarter-million-dollar fine, I'm not sure it's we who are "way too caught up in things". Murderers garner less retribution than this act of mere possession by a statistically miniscule and demonstrably law-abiding group. The feds are awfully wound up about continuing an extremely tight prohibition ... why is that? they take it extremely seriously - shouldn't we?
 
People coming together with individualy owned arms to fight in militias, often what would resemble a 'posse' to us today was what they had in mind.

But once you start viewing the second as preservation of militia rights, you quickly find yourself back in the group rights quagmire. Because governments--whether state or federal--have always had the lawful power to control and even ban or disarm militias. It's one of the core powers of the sovereign. You can quote TJ's letters or even the Declaration of Independence, but these documents are not law and have never been law. There is no right to form an armed group to overthrow the government, unless it is done under a sovereign's power. In reality, the bulwark against federal usurpation was always the several states. Some might say they waited about 10 years too long to act.

Expecting the Supreme Court to agree that the Second gives individuals a right to gather in non-sanctioned groups to kill officials is not realistic. Esp. when such a construction runs counter to the individual rights theory most of us were advocating.
 
The people taking up Arms against the government for various causes was the basis behind our current government, and the reason they did not keep the Articles of Confederation which fit thier beliefs and perspectives better.

The Articles of Confederation were there ideal situation. However they found while it was the ideal, states would not give what was asked for if not required to do it.
They also found things like Shay's Rebellion too difficult without a way to counter it.
So even though they absolutely feared a standing army (which was also the federal LEO of the time) because it was as one of the biggest dangers to freedom and liberty, they recognized they needed some way to counter rebellions.
They had believed that the people themselves would rise up and crush rebellions they did not agree with. But that never materialized in Shay's Rebellion, and the people could no longer be relied on to accomplish that.
They however supported the people's right to rise up in similar fashion.

They pictured the relationship between the government and its people as something both always had to keep in balance. If the people did not rise up and show "that this people preserve the spirit of resistance" then that lack of willing resistance would lead to widespread loss of liberty.

Also telling in that qoute by Thomas Jefferson is his method of dealing with those that took up arms in resistance.
To reason with them "set them right as to the facts", to forgive the crimes commited in thier effort of rebellion "pardon" and to defeat them if necessary "pacify".

They didn't picture it as one side having the right to crush the other without opposition, or that the rebels should be punished under law. They believed that the battles between the two were necessary, to keep both balanced.
They believed the government needed to be limited under the constitution, shackled in chains, but that the people should be free. The government had rules and limitations imposed, so they could not gain the upper hand.
They pictured the perfect stalemate where liberty and freedom prevailed under some of the benefits of a federal government, but the threat to liberty presented across Europe by central governments did not exist.

But once you start viewing the second as preservation of militia rights, you quickly find yourself back in the group rights quagmire.
Only under modern twisted interpretations by both sides.
The second was about protecting the individual ownership of arms so they could be used in coordinated efforts in a militia.
Militias were not all government controlled, it was a term to describe any loose force put together.

The forces of Shay's Rebellion for example that predates the constititution was considered a militia, and it was most certainly not sanctioned by the government, and they could not disband it.

A militia was a population of people, often from a town or region, but not always that would organize under a common belief or need. Whether to fight natives, criminals, foriegn forces or even thier own government.
It was not thier right to prevail, it was thier right to assemble and take up arms though.

For a people to loosely form militias at a moment's notice as needed they had to possess personal arms. A right that was already set in stone in English common law, but had been infringed on.

The right to arms was an old common law tradition, dating back to the Magna Carta, which the English King, the ruler and supreme law of the land was captured and forced to recognize certain rights of the people.
One of those was the right to arms which could be used against his men.




No it was not an ideal situation that solves all problems, for the founding fathers did not believe such a thing was possible due to human nature and the way governments operated. They knew government would grow to destroy liberty, so they wanted to shackle it in the chains of liberty.
They believed it was a constant never ending struggle.
That they had to insure certain rights of the people were never infringed on so they could partake in that struggle as needed to keep the balance.

Most things they created were for stalemates and balances, from the structure of the government with opposing branches, to the ability of the people to take up arms against anything foriegn or domestic (and thier ability to individualy have the tools necessary could not be infringed on).
 
The second was about protecting the individual ownership of arms so they could be used in coordinated efforts in a militia.

But that takes you right back to group rights, because at no time during the Republic were militias just bands of men doing their own thing. State militias were controlled by the states, and federal militias by the feds. Even town militias (to the extent they existed) were controlled by local government. In all cases there is a sovereign ratifying the actions, and that sovereign can also order the militias to disband or disarm. The Army of Northern Virginia was at its core a militia, and in the end the defeated sovereign in the person of RE Lee ordered the men to disarm. Officers kept their sidearms by agreement with Grant, and as a customary policing measure. A MILITIA is a body that can be organized or disbanded, armed or disarmed, at the command of the sovereign power controlling it. A militia is not just a bunch of yahoos in the woods plotting rebellion. So you are confusing the concepts of "militia" and armed rebels.

Further, there is no suggestion in the Constitution that periodic revolts by the people would keep the feds in check. Jefferson may have felt that way later on, but it's not in the document. The only way you're seeing it is by misconstruing the definition of "militia" to include armed rebels beholden to no government.
 
But that takes you right back to group rights, because at no time during the Republic were militias just bands of men doing their own thing. State militias were controlled by the states, and federal militias by the feds. Even town militias (to the extent they existed) were controlled by local government.

No those were militias created by an authority for a purpose. Not the definition of a militia, just militias.

The RKBA was an individual right, as all rights in the Bill of Rights are. The purpose for protecting that right was so any type of militia, put together by anyone, was an option always available to the people. Not just so authorities could create or manage thier own militias.
 
any type of militia, put together by anyone,

Well how many types are there? I know of four. Federal organized, federal unorganized. State organized, state unorganized. These are created and defined by statute and controlled by the chief executive--gov or pres.

I'd be interested in seeing any documents from the Founders that describe just any group of armed people as a "militia." In my experience they used that term to describe the military units organized by colonies, states or the Continental Congress. Not to describe any group of armed men acting for a political purpose.

For example, did they call the Sons of Liberty a "militia"? Some of its leaders went on to lead the Massachusetts militia proper, but were they acting as part of a militia when they dumped the tea? Is a secret revolutionary society a "militia" and do we have a right to form them now?
 
I'm not sure if this has been noted before, but all nine SCOTUS judges affirmed the Second Amendment protects individual rights.

The first paragraph of the first page of the dissenting opinion states "Surely it protects a right that can be enforced by individuals."

The 5 to 4 vote had to do with D.C. and the extent to which individual rights range.

So the "collective right" position has been firmly dismissed.
 
I think some people are getting way too caught up in things like repealing the '86 ban on machineguns

I don't think so. First, I never expect that the Heller decision would result in a direct repealing of that or any other federal firearms law. This case was about DC's handgun ban and requirement of disassembled/locked long guns, and nothing else. Of course, it was necessary for the Court to define at least a portion of the rights we have that are protected by the 2nd Amendment in order to come to a reasoned conclusion.

Second, I think that it is critical in the long run that the American public have a similar boost in available firepower to our police and armed forces. No, NOT because I'm calling for a revolt (I'm not, and I'm actually quite against one at this time or for the reasonably forseeable future). Why, then? Because the 2nd Amendment is about protecting our liberties against ALL enemies, foreign and domestic. The way I look at it, we've been extraordinarily fortunate to have not needed the militia to have been called out to defend our nation since at least the Civil War. But what if, someday, we were invaded or had an internal rebellion (and fighting invasions and putting down rebellions is the very purpose of the militia)? I don't want to see the public undergunned in that situation. To state that the average law-abiding person cannot legally purchase a new full auto is to adopt the logic of those who say that the 2nd Amendment only protects your right to own a musket. Times change, and just as the 1st Amendment protects your right to own a fax machine or use the Internet, so does the 2nd protect our right to own full autos.

Please don't tell me that "you can go out and buy one any time you'd like to, just come up with the money." Yes, that's true, but only about 150,000-200,000 of us can EVER do so under current law - because of the '86 ban. Me, I don't like the idea that I no longer have the right to buy a new full auto, or to modify a semi-auto into a full auto - as I could've done 23 years ago (not without looking at some serious jail time). Nor do I like the idea that I can't by a gun mail order, or many foreign-made firearms, as my father could have pre-1968. Hell, I don't even like the idea that I have to pay an extra $200 and get the permission of the local CLEO in order to buy any full auto - because my grandfathers didn't have to do so pre-1934.

My point is that a right is a right at all times and in all places. This means that if the government, or some potential invader or rebel force, has muskets, then I have a right to a musket or even a Kentucky rifle. Similarly, if the weapon used by most of those potentially hostile forces is a bolt-action rifle, semi-auto, full auto or a phased plasma rifle in the 40 megawatt range, I have a right to keep and bear the same weaponry, along with all of my fellow law-abiding citizens.

Heller is VERY promising on this matter, despite surface impressions: DC's law used to say, "if you didn't own and register a handgun before X date in 1976, you can NEVER own it." Compare and contrast to Title 18, Section 922(o) of the US Code: "if a full auto wasn't manufactured and registered prior to X date in 1986, you can never own it." Not too different - in both cases, an entire class of guns is banned...but some people can still have them if they were grandfathered. Both jurisdictions operate under the 2nd Amendment's restrictions without any need to resort to 14th Amendment incorporation. I think we have a case here. It'll take a couple of years to work its way through the courts, but it IS going to the Supreme Court. An incorporation case will come first, possibly something having to do with national carry or fees charged for licenses to own or carry, but a full auto case IS coming.

Here's one reason why full autos are required:

"Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." — Noah Webster, An Examination of The Leading Principles of the Federal Constitution, Philadelphia, 1787

You see, if the whole body of the people are armed with muskets against a modern army and police force armed with full autos, rockets, planes, etc., then the 2nd is meaningless.
 
I would like to have access to 3 shot burst-fire rifles if not full auto as it is probably more useful.

The MG registry hopefully will be forced open again but more restrictions might be put in place like requiring the person to own a semi-auto for 5 years before they could purchase one.
 
I kept telling people that they're idiots if they expected the Heller ruling to be the constitutional reset button. I was right.
 
I'd be interested in seeing any documents from the Founders that describe just any group of armed people as a "militia."

Alexander Hamilton quote:

"If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense."

There is no minimum size to militia, and a solitary act of defense, including self-defense, can be thought of as one person calling up himself to defend the community, represented by himself or others, and to enforce the law.
 
Status
Not open for further replies.
Back
Top