gun_with_a_view
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No need for me to rattle on when the whole enchilada is here:
http://www.huffingtonpost.com/saman...e-se_b_8845634.html?ncid=txtlnkusaolp00000592
WAS D.C. v HELLER A BAD DECISION?
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No need for me to rattle on when the whole enchilada is here:
http://www.huffingtonpost.com/saman...e-se_b_8845634.html?ncid=txtlnkusaolp00000592
pdsmith505
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Yeah... I've got choice words that are'nt "hugh road" regarding that.
Elkins45
Member
Ummm...the Huffington Post will get no click-thru ad revenue from me.
No.
The article is a collection of sour grapes by a sore loser, a collection of could'a, would'a, should'as to fend off a reality the author refuses to accept.
There is ample documentation that the people who wrote the Bill of Rights intended the phrase "the right of the people" to mean the exact same thing in the Second amendment that it means in every other amendment. The NRA didn't invent the meaning of the Second - the Founding Fathers did and the Supreme Court has upheld it.
In order to believe that the Second intends to limit gun ownership to state militia members one would have to believe that while every other amendment in the BOR limits the actions of governments, the Second - and ONLY the Second - limits the actions of the people. This is wildly inconsistent.
I could go on, but the bottom line is the decision has been made. Live with it.
The article is a collection of sour grapes by a sore loser, a collection of could'a, would'a, should'as to fend off a reality the author refuses to accept.
There is ample documentation that the people who wrote the Bill of Rights intended the phrase "the right of the people" to mean the exact same thing in the Second amendment that it means in every other amendment. The NRA didn't invent the meaning of the Second - the Founding Fathers did and the Supreme Court has upheld it.
In order to believe that the Second intends to limit gun ownership to state militia members one would have to believe that while every other amendment in the BOR limits the actions of governments, the Second - and ONLY the Second - limits the actions of the people. This is wildly inconsistent.
I could go on, but the bottom line is the decision has been made. Live with it.
AlexanderA
Member
The Heller decision was not as favorable to gun owners as it could have been. Yes, the decision said that the RKBA was an individual right. But Justice Scalia arrived at that conclusion by disregarding the militia clause entirely.
In the 18th century, militia membership was practically universal. If the militia clause had been given due weight (with the understanding that everybody was a member of the militia), then the private ownership of military weapons, such as machine guns, would have been protected. After the Heller decision, such weapons can clearly be banned. And by extension, their derivatives (such as so-called "assault weapons") can also be banned. Heller thus overruled the rationale of the previous Supreme Court 2nd Amendment case, Miller v. U.S. The Court should have elaborated on Miller, not negated it.
In the 18th century, militia membership was practically universal. If the militia clause had been given due weight (with the understanding that everybody was a member of the militia), then the private ownership of military weapons, such as machine guns, would have been protected. After the Heller decision, such weapons can clearly be banned. And by extension, their derivatives (such as so-called "assault weapons") can also be banned. Heller thus overruled the rationale of the previous Supreme Court 2nd Amendment case, Miller v. U.S. The Court should have elaborated on Miller, not negated it.
I would NEVER call Warren Burger a conservative nor would I ever call the man who appointed him, Richard Nixon, a conservative of any sort. Burger was a liberal activist judge and his tenure as Chief Justice marked some of the most liberal decisions in the history of the court.
I agree with AlexanderA. Heller removed the true rationale for the 2nd amendment from the discussion and shifted it to self protection. It was a bad decision that will come back to haunt us for decades.
I agree with AlexanderA. Heller removed the true rationale for the 2nd amendment from the discussion and shifted it to self protection. It was a bad decision that will come back to haunt us for decades.
steelerdude99
Member
natman, My sentiments exactly. If conservatives have to accept SCOTUS rulings the law of the land even if it's against all they hold dear, then anti-gunners needed to accept the 2nd Amendment as the law of the land. It sure does look like weak wording by Samantha Rosin by only saying that "this perspective (referring to the 2nd Amendment as an individual right) is merely supported". She never admits any more than that. The text below from the referenced link in the OP post. It was a 5 to 4 decision, but even so; it's a right affirmed.
Quote from "Stop Hiding Behind the Second Amendment":
For the first time in history, this perspective was supported in the 2008 Supreme Court case District of Columbia v. Heller. A civilian, the Court ruled, has a constitutional right to keep a handgun in his or her home for purposes of self-defense.
chuck
Those who are so critical of the 1934 Miller Decision should take the time to actually read it.
They did an extensive, footnoted review of the early day militias in the 13 colonies; and concluded they were made up of ordinary citizen. Further that they were required to provide their own small arms, accruements and ammunition.
They concluded that the right of ordinary citizens, and those that expressed an intention to become citizens (In other words "The People") could not be bared from owning and using arms that might be used by a militia - specifically the Unorganized Militia of the United States. But on that basis they claimed that Miller was guilty of possessing an "unregistered" (sawed off) shotgun because nowhere in previous litigation had evidence been presented to show that a sawed off shotgun had any Militia association.
In reaching this conclusion they affirmed in principal that possession of an arm that did could not be infringed.
Thus a case could be made that the currently proposed or enacted bans on so called Assault Weapons are unconstitutional.
They did an extensive, footnoted review of the early day militias in the 13 colonies; and concluded they were made up of ordinary citizen. Further that they were required to provide their own small arms, accruements and ammunition.
They concluded that the right of ordinary citizens, and those that expressed an intention to become citizens (In other words "The People") could not be bared from owning and using arms that might be used by a militia - specifically the Unorganized Militia of the United States. But on that basis they claimed that Miller was guilty of possessing an "unregistered" (sawed off) shotgun because nowhere in previous litigation had evidence been presented to show that a sawed off shotgun had any Militia association.
In reaching this conclusion they affirmed in principal that possession of an arm that did could not be infringed.
Thus a case could be made that the currently proposed or enacted bans on so called Assault Weapons are unconstitutional.
denton
Member
The Court only considers the question(s) stated in the grant of cert. They do not take up issues beyond that. That is exactly what the Court did in Heller. I suspect that Justice Scalia gave us the most favorable ruling that he could get five votes for.
Of course he did. The prefatory clause is only considered if the meaning of the main clause is not clear. The meaning of the main clause was clear. He explained this fully in the ruling. Until about 1900, the overwhelming view of 2A was that it protected an individual right. The drift toward a collective right or a government right started about then, and firmly ended with Heller.
I find nothing in the ruling that limits 2A protection to the home. In fact, it says that in the home the need is most protected/acute. That implicitly acknowledges that the home is only one of the places where the right is protected.
I suspect that in coming generations, Heller will be found in law school curricula under the heading "This is What a Well Reasoned Opinion Looks Like".
In any event, we have the ruling and under the doctrine of stare decisis, it is very unlikely that the Court will ever again take up the same issue.
You can substitute AR15 for handgun in the Heller ruling, and the logic still follows perfectly. So, yes, it seems clear to me that you are right.
Of course he did. The prefatory clause is only considered if the meaning of the main clause is not clear. The meaning of the main clause was clear. He explained this fully in the ruling. Until about 1900, the overwhelming view of 2A was that it protected an individual right. The drift toward a collective right or a government right started about then, and firmly ended with Heller.
I find nothing in the ruling that limits 2A protection to the home. In fact, it says that in the home the need is most protected/acute. That implicitly acknowledges that the home is only one of the places where the right is protected.
I suspect that in coming generations, Heller will be found in law school curricula under the heading "This is What a Well Reasoned Opinion Looks Like".
In any event, we have the ruling and under the doctrine of stare decisis, it is very unlikely that the Court will ever again take up the same issue.
You can substitute AR15 for handgun in the Heller ruling, and the logic still follows perfectly. So, yes, it seems clear to me that you are right.
The Second Amendment was derived from the Virginia Declaration of Rights
http://edu.lva.virginia.gov/docs/hires/VirginiaDeclarationofRights.pdf
Notice that the militia is composed of the "body of the people"
http://edu.lva.virginia.gov/docs/hires/VirginiaDeclarationofRights.pdf
Notice that the militia is composed of the "body of the people"
Notwithstanding Burger's view (apparently expressed around 1991, long before Heller) there was considerable support among many respected legal scholars, based on solid research, that the rights protected by the Second Amendment should be confirmed as individual rights unconnected with service in a militia.
Stephen Halbrook's seminal work, That Every Man Be Armed: The Evolution of a Constitutional Right, was first published in 1984. See also the works of Donald Kates, David Kopel and Joyce Lee Malcolm, among others. Sound scholarship laid the foundation for Heller and the death of the collective right view of the Second Amendment.
Even the Laurence Tribe, a highly regarded constitutional law scholar with a decided liberal bent, concluded some time ago that the Second Amendment protects an individual right. As noted in this New York Times article published in 2007:
As that article further notes:
Stephen Halbrook's seminal work, That Every Man Be Armed: The Evolution of a Constitutional Right, was first published in 1984. See also the works of Donald Kates, David Kopel and Joyce Lee Malcolm, among others. Sound scholarship laid the foundation for Heller and the death of the collective right view of the Second Amendment.
Even the Laurence Tribe, a highly regarded constitutional law scholar with a decided liberal bent, concluded some time ago that the Second Amendment protects an individual right. As noted in this New York Times article published in 2007:
As that article further notes:
mljdeckard
Member
More good than bad. "Right to pass reasonable restrictions = BAD. RKBA is an individual right, and arms in common use are protected =good.
230RN
2A was "political" when it was first adopted.
mljdeckard said,
Agreed. Sen. Feinstein's idea of "reasonable" differs from my idea of "reasonable."
I can imagine the <ahem> water-cooler discussions between the Justices over what is reasonable.
Probably devolved to "what the majority of the population thinks."
And I gather that the founders were very afraid of "majorities."
Terry
Agreed. Sen. Feinstein's idea of "reasonable" differs from my idea of "reasonable."
I can imagine the <ahem> water-cooler discussions between the Justices over what is reasonable.
Probably devolved to "what the majority of the population thinks."
And I gather that the founders were very afraid of "majorities."
Terry
chipcom
member
I don't need the 2nd Amendment to know that I have the unalienable human right to defend myself, my family and my property with the means of my choosing.
FYI, the 2nd Amendment, like the others, does not grant rights, it merely attempts to enumerate some of those unalienable human rights that predate governments, constitutions and judges. Thus, for me, the entire debate is a moot point...even if the 2nd Amendment were repealed, I would still retain and defend my right to keep and bear arms...any arms, carried by any means.
FYI, the 2nd Amendment, like the others, does not grant rights, it merely attempts to enumerate some of those unalienable human rights that predate governments, constitutions and judges. Thus, for me, the entire debate is a moot point...even if the 2nd Amendment were repealed, I would still retain and defend my right to keep and bear arms...any arms, carried by any means.
Librarian
Member
The case filings for Heller are still on-line at http://dcguncase.com/blog/case-filings/. Those have much more detail for an interested reader.
(DC is 'petitioner', Heller is 'respondent')
(DC is 'petitioner', Heller is 'respondent')
legaleagle_45
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The actual statement from Burger was given on the MacNeil/Lehrer NewsHour on December 16, 1991. It was a follow up on an article he wrote for Parade Magazine on Jan 14, 1990. The full Parade Magazine article can be seen here:
http://guncite.com/burger.html
Some choice excerpts that HuffPo would never print:
Ok, so fishing equipment, cars and hunting rifles are Constitutionally protected according to Burger-- apparently the right to keep and hook worms is found in the penumbras and emaninations clause...
Dave Kopel takes Burger to task here:
http://www.davekopel.com/2A/Mags/crburger.htm
Some choice excerpts:
Another thing of note... Burger's article was not cited in McDonald or Heller by either the majority or the dissent, nor was it mentioned in any of the multitude of briefs submitted in those cases-- at least as far as I could see.
http://guncite.com/burger.html
Some choice excerpts that HuffPo would never print:
Ok, so fishing equipment, cars and hunting rifles are Constitutionally protected according to Burger-- apparently the right to keep and hook worms is found in the penumbras and emaninations clause...
Dave Kopel takes Burger to task here:
http://www.davekopel.com/2A/Mags/crburger.htm
Some choice excerpts:
Another thing of note... Burger's article was not cited in McDonald or Heller by either the majority or the dissent, nor was it mentioned in any of the multitude of briefs submitted in those cases-- at least as far as I could see.
barnbwt
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Heller was flawed, in many of the same ways as Miller. The notion we have no right to provide a check on federal force (and being a check, must remain unchecked) but self defense, is as incomplete as saying we may posses arms to promote state & federal interests (security/militia) but not concealable weapons suited for personal defense rather than service.
The bigger flaw is how subsequent judges have cherry picked the most contentious portions from both rulings to uphold arbitrary long gun bans (Heller) as well as handgun bans (Miller), somehow transmuting the recognized right to both handguns and service rifles into an argument for banning all firearms. It is definitely a judge problem more than us needing to establish new precedent at this point. We need a solid generation of federal & state judge appointments by leaders who understand this issue, as well as two generations of constitutionalist lawyers being produced from schools that have been heretofore the chief source of our opposition.
If Heller had referenced Miller more, it would have had the effect of getting both types of weapon protected in one ruling, and this shell game would be harder to keep up.
TCB
The bigger flaw is how subsequent judges have cherry picked the most contentious portions from both rulings to uphold arbitrary long gun bans (Heller) as well as handgun bans (Miller), somehow transmuting the recognized right to both handguns and service rifles into an argument for banning all firearms. It is definitely a judge problem more than us needing to establish new precedent at this point. We need a solid generation of federal & state judge appointments by leaders who understand this issue, as well as two generations of constitutionalist lawyers being produced from schools that have been heretofore the chief source of our opposition.
If Heller had referenced Miller more, it would have had the effect of getting both types of weapon protected in one ruling, and this shell game would be harder to keep up.
TCB
Armybrat
Member
Chipcom has it correct - the 2nd isn't to regulate the citizen, it is to restrict the government from infringing our right.
Carl N. Brown
Member
Is that Huff Post article where Burger suggests revising 2A to include militia-only language .... no, that's an op-ed by Samantha Paige Rosen. Hardly a constitutional scholar. Jeez, even anti-gun law professor Alan Dershowitz admits the Second Amendment "people" are the people that have the right to keep and bear arms not the Second Amendment "militia", and he has denounced the efforts by other leftists to pretend 2A does not say what it does say. Of course, he urges repeal of the Second Amendment to further the aims of gun control.
Was Heller a bad decision? They looked at the question: did the second amendment protect a right to own and use arms for self-defense and they decoded yes, it did. Years ago I read the Heller decision and some of the amici (amicuses?) and my understanding is that claiming Heller said the second amendment protected only self-defense is as wrong as claiming 2A protected only the organized militia.
The Tennessee state constitution Article I outlines the rights of the citizen.
Section 26 declares (a) the citizens have the right to keep and bear arms and (b) the legislature has the power to regulate arms with a view to prevent crime.
Court rulings, attorney general opinions and statements of legislative intent have outlined the protected, lawful, and traditional reasons to own and use guns as including self-defense, hunting, protection of livestock, target practice, and collection of arms as keepsakes and heirlooms. That does include civilian marksmanship practice for persons eligible to volunteer for military service (the militia angle).
To stand in Tennessee, a law regulating arms must show crime prevention without unduly restricting the lawful and traditional possession and use by the lawabiding. The state trend I have seen over the past half century has been away from gun control and more toward gun rights.
The state constitution of 1870 was apparently written in an understanding that the militia clause of the federal second amendment was a-but-not-only reason the right of the people to keep and bear arms should not be infringed. As the majority in Heller reasoned, the militia clause is an example. It is the reason the government has an interest in supporting the RKBA of the people. But it is not the only reason for the RKBA of the people. The basic human right to self-defense is a legitimate reason to a right to keep and bear arms, and that was recognized by Heller. Heller does not deny other rationales for the people's RKBA.
Was Heller a bad decision? They looked at the question: did the second amendment protect a right to own and use arms for self-defense and they decoded yes, it did. Years ago I read the Heller decision and some of the amici (amicuses?) and my understanding is that claiming Heller said the second amendment protected only self-defense is as wrong as claiming 2A protected only the organized militia.
The Tennessee state constitution Article I outlines the rights of the citizen.
Section 26 declares (a) the citizens have the right to keep and bear arms and (b) the legislature has the power to regulate arms with a view to prevent crime.
Court rulings, attorney general opinions and statements of legislative intent have outlined the protected, lawful, and traditional reasons to own and use guns as including self-defense, hunting, protection of livestock, target practice, and collection of arms as keepsakes and heirlooms. That does include civilian marksmanship practice for persons eligible to volunteer for military service (the militia angle).
To stand in Tennessee, a law regulating arms must show crime prevention without unduly restricting the lawful and traditional possession and use by the lawabiding. The state trend I have seen over the past half century has been away from gun control and more toward gun rights.
The state constitution of 1870 was apparently written in an understanding that the militia clause of the federal second amendment was a-but-not-only reason the right of the people to keep and bear arms should not be infringed. As the majority in Heller reasoned, the militia clause is an example. It is the reason the government has an interest in supporting the RKBA of the people. But it is not the only reason for the RKBA of the people. The basic human right to self-defense is a legitimate reason to a right to keep and bear arms, and that was recognized by Heller. Heller does not deny other rationales for the people's RKBA.
barnbwt
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"Is that Huff Post article where Burger suggests revising 2A to include militia-only language .... no, that's an op-ed by Samantha Paige Rosen"
No, I think that was justice Breyer voicing an opinion that, frankly, would force him to recuse himself from any case tangential to the second amendment, if he had a shred of judicial honesty about him.
TCB
No, I think that was justice Breyer voicing an opinion that, frankly, would force him to recuse himself from any case tangential to the second amendment, if he had a shred of judicial honesty about him.
TCB
yokel
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The April 11, 2014 Washington Post op-ed was by ex-Justice John Paul Stevens, who thankfully retired five years ago. He ought to have realized by now that his suggestion was a jaw-dropping inanity and withdrew it:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”[emphasis added]
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”[emphasis added]
Carl N. Brown
Member
I believe that at least one of the state national guards had preparations for a scenario where terrorists or a natural disaster had destroyed the guard armory. The plan was for national guardsmen to assemble in uniform in their personal vehicles with their personal arms at a designated rally point.
"....the right of the people to keep and bear Arms when serving in the Militia...." (John Paul Stevens, "The five extra words that can fix the Second Amendment", Washington Post, 11 Apr 2014.) Duh. The five extra words that can break the Second Amendment.
The whole idea of militia service requires pre-service preparedness training (including marksmanship and safe gun handling). Especially if the contigency planning includes assembling with private arms.
Dershowitz honestly admits the Second Amendment would have to be repealed to get what he wants. Stevens admitted the Second Amendment would have to be amended to get what he wanted (if that was the original intent, that would have been the original wording).
Anti-gunners have been stretching to justify the 1960s claim of NO right to bear arms or even the Hobbesian ideal of an absolute state ruling through a state monopoly on force. That would call into play the gravest extreme option under the Second Amendment: rebellion against tyranny (which is not insurrection against legitimate government as claimed by anti-gunners).
"....the right of the people to keep and bear Arms when serving in the Militia...." (John Paul Stevens, "The five extra words that can fix the Second Amendment", Washington Post, 11 Apr 2014.) Duh. The five extra words that can break the Second Amendment.
The whole idea of militia service requires pre-service preparedness training (including marksmanship and safe gun handling). Especially if the contigency planning includes assembling with private arms.
Dershowitz honestly admits the Second Amendment would have to be repealed to get what he wants. Stevens admitted the Second Amendment would have to be amended to get what he wanted (if that was the original intent, that would have been the original wording).
Anti-gunners have been stretching to justify the 1960s claim of NO right to bear arms or even the Hobbesian ideal of an absolute state ruling through a state monopoly on force. That would call into play the gravest extreme option under the Second Amendment: rebellion against tyranny (which is not insurrection against legitimate government as claimed by anti-gunners).
legaleagle_45
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There is a much more salient example directly on point, but you must know some legal limitations of a militia. At common law, a militia could not be deployed outside of the country. This first caused problems during the War of 1812, when some governors refused to allow their militias to be sent to Canada. It arose again during the Mexican American War and the Spanish American War-- leading to the Dick Act which provided for the possibility of whole units of the NG being drafted into the regular armed forces so they could be sent overseas. In April 1917, this was exactly what happened--- with a single stroke of the pen the "well regulated militia" was eliminated and converted into regular armed forces and all of the arms and equipment requisitioned for use by the regular army...
The states quickly complained that this action was leaving them totally defenseless, but the undersecretary of war responded that the Federal Government was too preoccupied by the war and that the states must fend for themselves.
Many of the states responded by calling for volunteers to act as a home guard, with these volunteers bringing their own weapons or weapons donated by others to use-- there was another federal law which was passed in the aftermath of the Civil War which prohibited states from arming any para military groups without Federal approval-- which approval entailed weeks of paperwork and oaths and such nonsense.
Veterans from the Spanish American War trained these volunteers and within a few weeks a "well regulated militia" was in place that went on to serve invaluable duty during WWI in such roles as guarding the docks and responding to natural disasters.
A short history of one such group called the Cabrillo Rifles is detailed here:
http://www.sandiegohistory.org/journal/84fall/rifles.htm
As a side note, some of the states decided to challenge the fed's authority to destroy the well regulated militia and confiscate all of their arms and equipment. The cases were consolidated and named is known as the Selective Draft Law Cases, 245 U.S. 366 (1918).
A unanimous Supreme Court upheld the authority of the Feds to destroy the well regulated militia and confiscate all of their arms and equipment for use by the regular armed forces. No one even thought of mentioning the 2nd Amendment as a barrier to this action--
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