To Hell with Heller

[gc70]

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 individual capacity to legally enforce a right is not the same as an individual right. More specifically, in the second paragraph of page 11 of the Dissent:

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

In other words, you have an individual right to participate in the collective action (e.g. the militia).

 

[Art Eatman]

Cosmoline, I harp on the Preamble to the BOR because it explains the purpose of that entire package: To restrain the State against abuse of power.

It could come to pass that the abuses of power are such that the only recourse of the citizenry is to use the weapons of the Second Amendment. Me, I don't want to get hung up on word usage, whether it's called revolution, rebellion, insurrection or just, "The folks said NO!"

Art

 

[Zoogster]

....

 

[harrygunner]

gc70, I understand what you are saying.

Breyer also stated the entire court agreed the Amendment protects an individual right but then insists that individual right lives within a militia as Stevens later argues.

Steven's arguments about separate, distinct subsets of "the people" that the various amendments are intended for, is laughable.

He argues that the First and Second are about subsets of "the people" engaging in collective activities.

Steven's argument could be used to defend the government prohibiting one from talking to oneself or having a religion only you practice.

 

[Cosmoline]

Cosmoline, I harp on the Preamble to the BOR because it explains the purpose of that entire package: To restrain the State against abuse of power

To be more specific, it's purpose was to restrain and divide the central government. There was no concern for state abuse of power until after the Civil War and adoption of the 13th and 14th.

 

[Cosmoline]

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.

But again, Hamilton does not use the term "militia." In my reading of the founding documents and description of the War of Independence, it's been my observation that "militia" is a pretty precise term used to describe troops raised from the people in a particular colony or district. The statutes adopted after independence by states and the feds further define both organized and unorganized militias. These go way back.

So it's hard to see how the reference to "militia" in the preamble to the Second is an endorsement of indivuals "calling themselves up" to rebel, absent any governing power. The militias might be called up to serve a rebel government, as it was by the Continental Congress and later by the southern states. But people don't "call themselves up," save to answer the greater call to war and submit their services to the governing power in question. That's been the case from the Revolution to the Rough Riders. It's the difference between a pretend "militia" where everyone is an officer and nobody takes orders from any democratic body and a real militia organized as a traditional military unit and beholden to a command structure leading back to a body of elected leaders.

 

[yokel]

I understand that he failed to specifically mention "militia", but on the other hand he didn't have to.

Hamilton was referring to the concept of mutual self-defense, not necessarily to intimidate common criminals and wackos, but to counter a government that evinces a methodical design upon our natural rights. We must have the means(including arms) to protect and recover our rights.

 

[Sam Adams]

I'd be interested in seeing any documents from the Founders that describe just any group of armed people as a "militia."

Not any old group; the Founders wanted it to be "regulated" (i.e. trained & disciplined, so as to be effective against invaders or rebellions). Note, however, that the WHOLE body of the people is the militia - this is because, as Scalia noted in Heller, the Founders didn't want the Congress to disarm the militia by dropping all but those loyal to those in power from the rolls of the militia:

"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

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American." Tench Coxe

"I ask, sir, what is the militia? It is the whole people except for a few public officials." George Mason

"A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country."
James Madison

"By the last returns to the Department of War the militia force of the several States may be estimated at 800,000 men - infantry, artillery, and cavalry."
James Monroe

[Note, I don't know when this statement was made, but even when he was President the population was about 7.5 million, so >10% of the population was considered "militia" - and this was defined in the 1792 Militia Act as able-bodied men between 17 and 45 years of age].

And here, just for kicks, is a quote from a Founder about the purpose of the militia:

"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
Elbridge Gerry

 

[Cosmoline]

Assuming the militia was "the whole people" before it was defined as every able bodied man from age X to age Y. That does not mean that every group who wants to get together to rebel is the militia. There is always some notion that the militia is answering to a higher calling by some soveriegn force. Not merely acting out of its own will and desire.

Whether or not the principles of armed self defense include a right to group self defense is another question, totally apart from the issue of militias. If there is an individual right to keep and bear arms, is there also a right to cooperate with other armed citizens in defense? Does that right extend to defending against tyranny? That's a very interesting question. But I think you need to keep militias out of it.

 

[Art Eatman]

"To be more specific, it's purpose was to restrain and divide the central government. There was no concern for state abuse of power until after the Civil War and adoption of the 13th and 14th." -- Cosmo

Reading from the Preamble: "...in order to prevent misconstruction or abuse of its powers..."

Art

 

[WayneConrad]

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.

Local government had no control over the militiamen circa Lexington and Concord. Although there were laws that governed the mens' preparedness, stating for example that men must have muskets, and show up for practice, service in the militia was not compulsory once the fighting started. If a man ran away from the sound of gunfire, there was not an officer with a pistol there to shoot him for desertion, or a law to punish him for not fighting.

Contemporary accounts are of men who elected their leaders from the ranks. These are men who were led by consensus, not by force. Those who argued for the need for a continental army refer to that as a weakness needing remedying.

 

[yokel]

Do you suppose that the right to keep and bear arms was put into the Constitution by the Founders merely to allow us to thwart street thugs and hoodlums, bag a duck or deer, or to entertain ourselves with YouTube videos?

Somehow I don't think that Hamilton was envisioning everybody operating alone and remote from society against the government when it acted against the interests of citizens.

 

[Cosmoline]

in order to prevent misconstruction or abuse of its powers..."

The "it's" is the Constitution, which established the federal government.

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.

 

[KBintheSLC]

the Court only condescended to recognize a very narrow right to armed self-defense, but then put all sorts of caveats and limits on it,

The perceived loopholes are merely manipulations by the lefties to promote their agenda. They tried hard to manipulate the constitution before Heller, and they are trying desperately to do it again. Big friggin' deal... I still have my guns, and they still can't do a damn thing about it.

 

[Cosmoline]

Let's assume the Second does protect a "right to rebel." How would you folks enforce this right? If me and ten other armed men decide Mayor Begich has exceeded his authority under the Muni charter and go to force him and the assembly to change some laws at gunpoint under threat of death, are our actions protected under the "right to rebel"?

If I shoot a presidential nominee because I feel he would become Caesar, are my actions protected as lawful rebellion?

It seems to me that a rebellion, in order to be valid, must be done under the auspices of some valid sovereign representing the will of a sovereign state. Anything less is simply a criminal act and can have no protection. Obviously there's going to be an argument about who the valid sovereign is, but there has to be a chain of command and it has to go back to the will of the people.

So assume GW refuses to hand over power to the duly elected President. He uses his secret service as a Praetorian guard and starts killing Senators who disagree with him. Any rebellion against that coup would need to be organized and directed by either the rump federal force or the states themselves, which are the residual sovereigns under our union.

 

[WayneConrad]

Let's assume the Second does protect a "right to rebel." How would you folks enforce this right? If me and ten other armed men decide Mayor Begich has exceeded his authority under the Muni charter and go to force him and the assembly to change some laws at gunpoint under threat of death, are our actions protected under the "right to rebel"?

The check upon the power of rebellion is that it takes a fair proportion of the people, united in their goals and actions, to pull it off. Therefore, the people themselves are an adequate check upon this awesome power--if they do not agree in large enough numbers that a rebellion is necessary, the rebellion will either not begin, it being obvious to the malcontents that the necessary will is lacking among the people, or it will, once begun, be put down quickly.

 

[Orange_Magnum]

If our politicians and law makers took the 2nd seriously...

1. Concealed carry of any firearm in public would be illegal for civilians.

2. Handguns with a barrel equal to or longer than 6", machineguns, long rifles, landmines, shoulder-supported rocket launchers, dynamite, etc, etc, firearms that a typical militia would be using would be the only type of firearms covered by the second amendment. And all legal to carry openly in public.

3. Criminals would only be able to carry firearms in a situation where the country or constitution were under attack.

 

[yokel]

The principle on which our polity is based, as stated in the Declaration of Independence, recognizes that any government, at any level, can become oppressive of our rights. And we must be prepared to defend ourselves against its abuses.

So we have no right to shirk our duty to preserve unto ourselves the material means to discipline our government, if necessary, so that it remains a fit instrument for the self-government of a free people. The preservation of Second Amendment rights, for the right reasons, is a moral and public duty of every citizen.

 

[Sam Adams]

Cosmoline

It seems to me that a rebellion, in order to be valid, must be done under the auspices of some valid sovereign representing the will of a sovereign state. Anything less is simply a criminal act and can have no protection. Obviously there's going to be an argument about who the valid sovereign is, but there has to be a chain of command and it has to go back to the will of the people.

Let's look at 2 things:

First, ANY rebellion against a sovereign government is - by definition - a violation of the law. It simply cannot be any other way. Our own Revolution was viewed by the Brits as an uprising by a bunch of traitors and their sympathizers, and the penalty for any of the leaders caught by the Brits was hanging.

Second, our own Revolution itself had no authority from any sovereign government. The rebels (whom we call Founding Fathers) got together themselves and voted to start a new country. Yes, they voted in a democratic (small "d") manner at Independence Hall; yes, there was a Continental Congress - but the reality was that this entire enterprise was viewed by England as treason, pure and simple.

My conclusion is that the winner writes the history. Had the Revolution been unsuccessful, George Washington would have been a small footnote to history, and most of history as we know it for the past 200+ years would be vastly different. Had the Whiskey Rebellion of the 1790's been successful, those people would likely be looked upon as heroes - but they're now looked upon quite differently.

So, what does the 2nd Amendment do?

It protects "the right of the people to keep and bear arms."

Why?

Because such is "necessary to the security of a free State."

What does THAT mean?

As I see it, the security of the State (meaning the entire country, not one particular state like New York or Virginia) can be endangered from 3 sources:

1) Invasion by a foreign power - OK, that's easy. Red Dawn time, every patriot grabs a gun and shoots the Redcoats, Russkies, whomever.

2) Rebellion - presumably this would mean some type of military coup, but it could also mean a bunch of states deciding to leave the union (I seem to recall something about that from history class).

3) Tyranny - mass violation of basic rights by the ostensibly legitimate government; imposition of dictatorship like Caesar, Hitler, etc.

Street criminals, while a threat to individual citizens, don't threaten the State, so that's not included in "security of the State" though it is another legitimate reason to have arms (and so the Court finally stated in Heller).

OK, so how does the State deal with those 3 threats? Well, the Constitution gives the Congress the authority to regulate and discipline the militia. A sensible government would organize it in such a way as to significantly augment the power of the nation's armed forces in the event of invasion or rebellion.

Ah, but what about Door #3, where the State itself becomes the enemy? The enemy of who, or what, you may ask? Who determines this? I would say the enemy of the liberties of the people, as such are enumerated in the Declaration of Independence and our Constitution. But, of course, the State will have judges to rule that its laws are perfectly legal, perfectly necessary to protect the nation and its people. Lincoln was, by the standards of any other time in our history except the Civil War, a dictator. He jailed people for voicing their opinion, or even for reporting facts. Hitler had most of the German judiciary behind him (at least nominally - they, too, were intimidated). So the State would say it is doing things right (i.e. legally) against some group of (by definition) treasonous rebels.

Of course, according to the nature of the thing, the State is not going to want the entire population armed, only those reliably on the side of those running the (now illigitimate, or allegedly illigitimate) government. Everyone else is a criminal, mentally deficient or a traitor, and cannot keep or bear arms (and maybe gets shot after a brief encounter with a military tribunal that the civilian courts rule is perfectly legal).

Again, we're back at the crux of the problem - when is it legitimate for the militia to organize itself to fight the government? The only answer I can give lies in Declaration of Independence. And, again, only the winner of such a hypothetical struggle would determine the legitimacy of the rebels and their claims and methods, just as was the case with our Revolution.

I think it a mistake to say catagorically that without the validation of some state's (in this case "state" as in New York or Virginia) government, any action by the militia (meaning the body of the people) is wrong...just as it is a mistake to say that such is catagorically right. Some hypothetical scenarios would be very clear cut, but life is rarely like that - you rarely (thank Heaven) get an Evil Emporer that everyone KNOWS is the criminal.

 

[H088]

1. Concealed carry of any firearm in public would be illegal for civilians.

2. Handguns with a barrel equal to or longer than 6", machineguns, long rifles, landmines, shoulder-supported rocket launchers, dynamite, etc, etc, firearms that a typical militia would be using would be the only type of firearms covered by the second amendment. And all legal to carry openly in public.

3. Criminals would only be able to carry firearms in a situation where the country or constitution were under attack.

CCW and pistols with a barrel shorter then 6 inches are completely legal under the constitution, I have no idea how you got the interpretation that they aren't.

 

[Cosmoline]

The check upon the power of rebellion is that it takes a fair proportion of the people, united in their goals and actions, to pull it off.

The POWER of rebellion, yes. I agree completely. But some have advocated that the second be interpreted to protect a RIGHT of rebellion. Which would mean you could rebel and kill without being put away for murder because you had a RIGHT to do it.

Second, our own Revolution itself had no authority from any sovereign government.

This isn't correct at all. Our Revolution was orchestrated by representatives of the people and carried on by the Second Continental Congress comprised of popular representatives. There was neither time nor resources to set up a modern ballot box to elect people, but the basic elements were in place and the local population of landowners was small enough in most cases you could just gather them together and do a voice vote to nominate your delegate.

Now obviously the Cont. Congress was a rival sovereign to the King, but I think most would agree it had much greater claim to represent and govern than that old German nutcase did.

 

[ConstitutionCowboy]

On the other hand, there are some holes in the argument that are suprising from a Justice as distinguished as Scalia. Some of those holes could probably be widened if future Justice appointments go our way (and some of the key elements to do that are already being laid down now).

I would contend that the "holes" in the ruling are by design. The more I read the ruling and do the "math", the more I see the genius of Antonin Scallia's provident.

Woody

"It is up to We the People to decide if and when we shall revolt. It is not up to those in government to prevent it. It is up to those in government to see that revolution never becomes necessary." B.E.Wood

 

[gtmerkley]

An opion is only as good as the man that carry's it.

 

[Nobody's_Hero]

Cosmoline,

This isn't intended to be a gross personal insult, but:

I do find it somewhat, er, amusing, that someone could be a member of these boards since 2002, with over 14,000 posts, and still not acknowledge that the 2nd Amendment is vital to the 'security of a free state' (I will explain this phrase in a moment).

There are plenty of members here who do not consider themselves "fringe" for thinking as such.

Taking a moment to look back at the big scheme of things, I can understand your concern - that a band of rebels could overthrow (or worse) a popularly elected official simply because the rebels don't agree with the policies enacted, and therefore cause eruptions of anarchy across the land. But, there is only one justifiable reason for an armed revolution, and that is when the government is guilty of a "long train of abuses and usurpations." As of 1789, these would be abuses of Federal powers and usurpations of rights outlined by the U.S. Constitution (which, unfortunately, is a behavior now quite the norm).

The 'security of a free state' cannot be left to the State (meaning Federal government, in this context), especially when the State no longer acknowledges the constraints prescribed by a binding contract, established by the people for their government. 'Taking up arms' was to be the fifth ace at the card table -not just a 'right' or 'power', but a duty - left to the people should government ever stray from the boundaries of its just powers.

If an abusive government were capable of correcting itself, the 2nd Amendment would not be necessary. Nor would voting, perhaps, since you'd have a government that would always protect the rights of the individual. You wouldn't need the 1st Amendment because criticising a government for actually adhering to the the Constitution wouldn't make much sense, unless you just didn't like the Constitution (some people don't, such as the mayor of Chicago, for example). Etcetera, etc.

I also can see how you arrived at your opinions based on the poor condition of our public education system (I attended public schools, but have recently been emancipated from the falsehoods which students are conditioned to believe in). It is simply taboo for a professor to suggest that the State could be so wrong and despotic that the people should be compelled to remove elected officials by force. Therefore, you will not likely find any quotes by Jefferson ["God forbid we should ever be twenty years without such a rebellion . . ."] posted on the walls of our classrooms. Yet, the only alternative to that reasoning, according to our government-paid mind-molders, is: to suggest that a Federal government, comprised of elected officials (in the best possible way a Republic can function), can never be, or do, wrong. This is a very dangerous sentiment for any form of government (be it Communism, Totalitarianism, Democracy, Theocracy, or even our own Republic).

There is very little room for middle ground here. Either the government chooses to follow the Constitution, or it doesn't. It must be willing to suffer the consequences of its choices at the hands of a truly educated and armed citizenry. In the same sense, that citizenry must be willing to suffer the consequences of theirs (never forget that our founders were viewed as traitors to the crown by both loyalists in the colonies and King George III himself).

 

[BigO01]

Every Journey begins with a first step and that's all Heller was .

They had to concede restrictions were permitted or you would have every jail house lawyer filing a motion to be able to keep a gun in prison because they have not only a Right but a real need to defend themselves from the hundreds of violent criminals they live with every day .

Think how that would clog up the courts .

What is a allowed restriction will have to hashed out in future cases but the thing is with the High court finding it as an individual right there is a great chance the lower courts will overturn restrictions and prevent the need for them to ever make it to the Supreme court .