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Chicago: The Second Amendment Doesn't Apply Here
As I discussed in a recent article, the federal 7th Circuit Court of Appeals held that the Second Amendment offers zero protection against the restrictive gun control laws currently in place in Chicago and Oak Park, Illinois. Plaintiff's attorney Alan Gura (who argued and won last year's landmark gun rights decision D.C. v. Heller) quickly filed an appeal (pdf) with the Supreme Court, asking them to hear the Chicago gun case. Now Chicago and Oak Park have filed their own petition (pdf) with the Court. Not surprisingly, they argue that the 2nd Amendment should not apply to state and local governments. They also picked up on the 7th Circuit's controversial argument that federalism would best be served by letting the states disregard the Second Amendment entirely. As conservative Chief Judge Frank Easterbrook wrote for the 7th Circuit, "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon." The Chicago brief quotes that statement and adds a flourish of its own:
The States thus have, and should continue to have, the greatest flexibility to create and enforce firearms policy, including the ban of particular types of weapons that have proven to be highly dangerous in a particular location. Indeed, the power to regulate according to the needs of varying local conditions is a hallmark of federalism that is as much a part of the constitutional design as the individual rights provisions of the Bill of Rights.... Firearms regulation is a quintessential issue on which state and local governments can "serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
As I previously argued, Gura's petition did a very nice job of refuting this dangerously biased notion of federalism. As he put it, "To claim that of all rights, the Second Amendment must yield to local majoritarian impulses is especially wrong considering that the rampant violation of the right to keep and bear arms was understood to be among the chief evils vitiated by adoption of the Fourteenth Amendment." Indeed, per the 14th Amendment, we don't let the states try "novel experiments" like establishing official religions or banning free speech. It's time for the Second Amendment to receive the same respect as the First.
|8.7.09 @ 3:04PM|#
I don't see that crappy argument convincing any of the five Heller justices. We will get incorporation in the next ruling.
JB|8.7.09 @ 3:04PM|#
If the Court is actually stupid enough to try to claim that the
2nd Amendment doesn't apply to states and localities, this country
might face civil war.
I for one will encourage people to start arresting others when they
engage in political speech. If my 2nd Amendment rights are ignored,
then it's time to start ignoring others 1st Amendment rights.
Joe M|8.7.09 @ 3:05PM|#
When are we going to admit this whole "Bill of Rights" thing is getting really old, and move on into the 21st century?
|8.7.09 @ 3:06PM|#
I would expect the ACLU to go absolutely batshit over this
attempt to roll back the 14th Amendment and incorporation of the
Bill of Rights.
Firearms regulation is a quintessential issue on which state
and local governments can "serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the
country.
You know, its funny. We've been running just this experiment for a
number of years now with concealed carry laws, and it turns out
they work just fine. I expect Illinois, with its strong commitment
to the "laboratory of the states", to adopt their own shall-issue
statute the next time the legislature convenes.
|8.7.09 @ 3:10PM|#
I don't see that crappy argument convincing any of the five
Heller justices. We will get incorporation in the next
ruling.
Pray that none of the Heller justices retires or dies before this
case is ruled on. If Scalia is replaced by an Obama nominee, we
might as well take a black Sharpie to the National Archives and
take care of the 2nd once and for all.
|8.7.09 @ 3:10PM|#
I suspect that the right to bear arms is more deeply rooted than
the idea that there should be no state established religion. Would
Judge Eastebrook be willing to say that
"Federalism is an older and more deeply rooted tradition than
is a right to carry any particular kind of weapon
any prohibition on establishment of
religion." If not, why not?
|8.7.09 @ 3:12PM|#
Pray that none of the Heller justices retires or dies before
this case is ruled on.
Pray that Obama doesn't get a second term with a Dem Senate, or
there is no telling how many Justices he might appoint who would
regard one or two recent cases on the 2A as being not deeply rooted
enough to merit stare decisis.
PR|8.7.09 @ 3:13PM|#
Interesting. Perhaps federalism could be well served by states and localities voiding the 16th amendment in their jurisdictions too.
|8.7.09 @ 3:16PM|#
Guns really are a cultural inkblot. Easterbrooke wouldn't write that nonsense about anything but guns. But guns are different in some circles.
No Name Guy|8.7.09 @ 3:22PM|#
Sponge - You're not out of the fight when you run out of ammo. That's what the bayonett & the steel butt on a nice walnut stocked M-1 Garand or M-1A (civilian / semi-auto only M-14 from Springfiled Armory) are for.
|8.7.09 @ 3:29PM|#
Not surprisingly, they argue that the 2nd Amendment should not apply to state and local governments.
The Land of Lincoln is for states rights? What universe did I wake
up in? OMG! Next thing you know we're going to get rid of standing
armies and the interstate highway system!
Robert|8.7.09 @ 3:31PM|#
You sure the US 14th Amendment wouldn't allow a state to
establish a religion? I don't see how that abridges people's
privileges or immunities, or deprives them of liberty or property
any more than taxation for any other purpose does. If you said it
forbids states from interfering with free exercise
of religion, rather than just subsidizing one, I'd
agree.
However, the chance of any state's establishing a religion, when
all of their constitutions currently forbid them to do so, is 0.
They'd all disestablished their churches by the time the 14th
Amendment came into effect.
|8.7.09 @ 3:33PM|#
For the record, the Latin Kings and Gangster Disciples incorporated the 2nd Amendment 'round these parts a long time ago.
MNG|8.7.09 @ 3:35PM|#
"It's time for the Second Amendment to receive the same respect
as the First."
Or pretty much every other part of the Bill of Rights, which has
been incorporated to the states. Once Heller is accepted you have
to really, really treat the 2nd like some of red-headed step-child
to not go for incorporation...I've never heard the "damn good
argument" that would justify such treatment.
MNG|8.7.09 @ 3:38PM|#
Robert
You say that you can see how free exercise applies through the 14th
but not the establishment clause. Is that because you see the
former as an individual right, but not so much with the latter?
Interesting. I think the establishment clause does in fact protect
an individual right (my right not to be compelled to support a
religion).
|8.7.09 @ 3:40PM|#
"For the record, the Latin Kings and Gangster Disciples
incorporated the 2nd Amendment 'round these parts a long time
ago."
Yup.
|8.7.09 @ 3:41PM|#
"Or pretty much every other part of the Bill of Rights, which
has been incorporated to the states. Once Heller is accepted you
have to really, really treat the 2nd like some of red-headed
step-child to not go for incorporation...I've never heard the "damn
good argument" that would justify such treatment."
There isn't one. At a more base level, people see courts' reading
the Constitution to find a right to have an abortion, something not
mentioned in the document, and then not finding a right to bear
arms even though the 2nd Amendment seems pretty clear. It puts lie
to the whole judicial system. Thank God Heller was decided the way
it was. If it had gone the other way, the Courts would have lost a
huge amont of moral credibility with most of the country.
MNG|8.7.09 @ 3:44PM|#
"the 2nd Amendment seems pretty clear"
WTF?
It basically says "Since militias are really important, every
person should be able to bear arms." That makes it at least
reasonable to reach the collective right "right to a militia" view
there. I think ultimately its the wrong reading, but the whole
section before the first comma did ensure that the amendment was
pretty un-clear John...Hey, the Founders ruled, but nobody is
perfect...
|8.7.09 @ 3:47PM|#
"every person should be able to bear arms." is pretty clear to most people. It is only "unclear" to people who are doing intellectual gymnastics to try to deny what it obviously says.
MNG|8.7.09 @ 3:48PM|#
Compare it to the First Amendment's speech clause, which is pretty clear. Imagine if it had read "Since debate in the newspapers of the day is crucial to democracy, Congress shall make no law abridging freedom of speech." If someone read that as only prohibiting the speech of newspapers and their equivalents it might be wrong, but it would not be clearly so...
The Chad|8.7.09 @ 3:48PM|#
Couldn't California (or any state, for that matter) use the same logic regarding prohibition of marijuana? Federalism is definitely older than prohibition.
|8.7.09 @ 3:50PM|#
While I fully support Second Amendment rights, I have to agree with MNG that the Founding Fathers must've drunk a little too much Applejack before drafting that one.
|8.7.09 @ 3:51PM|#
MNG,
It was never a strong argument that it was a "collective right". No
less a liberal than Larry Tribe admited as much long before Heller.
It is just not a tenable agrument to claim that it means that
people in the National Guard can own weapons. Even if it were, it
certainly woudn't be the most obvious reading of it. It is a much
bigger leap to say that "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized." means that there is a right to
privacy and aborition. That it is to say "the right to keep arms
shall not be infringed" means you can't take my arms.
|8.7.09 @ 3:52PM|#
"Since debate in the newspapers of the day is crucial to
democracy, Congress shall make no law abridging freedom of speech."
If someone read that as only prohibiting the speech of newspapers
and their equivalents it might be wrong, but it would not be
clearly so..."
Matter of opinion I guess. But it seems to be a pretty convoluted
reading of that to claim that it only applies to newspapers.
MNG|8.7.09 @ 3:56PM|#
It seems you are ignoring the first part of the amendment John. It makes it at least reasonable that what this amendment is all about is state defense, militias, and that the part about the people bearing arms is in reference to that (its important in that thats what militias were made up of back then).
|8.7.09 @ 3:57PM|#
My point MNG is not that it is the most obvious thing in the document. It is that it is more obvious than other rights courts' have found. I think there would have been a profound sense of betrayal among a lot of people if the same court that found a right to abortion failed to find a right to bear arms. The conclusion would have been that the Constitution doesn't mean anything except what they say it does. That would have been very bad.
MNG|8.7.09 @ 3:59PM|#
"it seems to be a pretty convoluted reading of that to claim
that it only applies to newspapers."
Really? The "Since debate in the newspapers of the day is crucial
to democracy" part seems to me to say that the sentence is all
about newspapers first, then speech second...It at least strikes me
as reasonble there.
In fact, the best reason to see the 2nd as granting an individual
right is to follow the usual liberal practice of reading rights
broadly...
MNG|8.7.09 @ 4:01PM|#
John
I agree and disagree. There is more evidence to see an individual
right to bear arms than an abortion right, because there is no
explicit language that suggests an abortion right at all. But since
the 2nd could be read reasonably either way, I don't think Heller
going the other way would have been such a grave indictment of the
court...A grave indictment is when they plainly read text contrary
to what it says.
|8.7.09 @ 4:05PM|#
"I don't think Heller going the other way would have been such a
grave indictment of the court...A grave indictment is when they
plainly read text contrary to what it says."
That is because you don't feel that strongly about the 2nd
Amendment. A lot of people look at it differently. Heller going the
other way would have created a bigger festering wound in this
country than Roe did.
MNG|8.7.09 @ 4:08PM|#
John
I feel pretty strongly about it, it's often my vote decider in
Democratic primaries. The reason I would not find it so grave is
because, as I said, such a reading is at least reasonable.
But yes, as an empirical matter people would have been mighty
pissed had it gone the other way (of course most gun supporters I
know were pretty pessimistic and expected it to go that way).
MNG|8.7.09 @ 4:10PM|#
Just because you feel strongly about something doesn't mean you would be mad if the SCOTUS did not find a right to that something in the US Constitution...I feel incredibly strongly that drugs should be legalized, but I admit any SCOTUS who "found" a right to possess drugs in that way would be crazy, lawlessly activist...
Warty|8.7.09 @ 4:15PM|#
I admit any SCOTUS who "found" a right to possess drugs in
that way would be crazy, lawlessly activist...
Bullshit. Seems to me the 10th amendment covers it.
EscapedWestOfTheBigMuddy|8.7.09 @ 4:16PM|#
Sigh.
subordinate or dependent clause
A group of words that has both a subject and a verb but (unlike an independent clause) cannot stand alone as a sentence.
and
independent clause
A group of words made up of a subject and a predicate. An independent clause (unlike a dependent clause) can stand alone as a sentence.
In the case of the second amendment, the dependent clause is " A
well regulated militia, being necessary to the security of a free
state". You'll note that that does not form a sentence. It does not
comprise a complete though in and of itself. Yes, you could fix it.
You could make it "A well regulated militia is necessary to the
free state." But they didn't use the plain verb "to be". You have
to assume they did that on purpose.
The independent clause is "the right of the people to keep and bear
arms, shall not be infringed", which is a complete thought.
Further, there is nothing in the subordinate clause to indicate
that it restricts of modifies the independent clause. It is just
not there. Ergo, it exists to explain why "the right of the people
to keep and bear arms, shall not be infringed."
Reading this any other way is an exercise in straining at
flies.
JB|8.7.09 @ 4:21PM|#
If it had gone the other way, the Courts would have lost a
huge amount of moral credibility with most of the
country.
They would likely have lost more than that. Many members of the
government admit to being illiterates, but ignoring the 2nd
Amendment is a step too far.
|8.7.09 @ 4:23PM|#
The government often ignores that powers not granted to the
federal gov't are granted to the states. Now that we have an
argument about a power that is granted to the federal gov't (the
authority to defend the right to bear arms) the feds wont bite.
WTF?
If a city (I don't know about Chicago specifically because Cook
Country is a haven for libs in the Midwest) were to violate any
other Constitutional right such as the right to Free Speech or the
right protecting us against Illegal Search & Seizure, the
Supreme Court would have a shit-fit.
|8.7.09 @ 4:24PM|#
"Just because you feel strongly about something doesn't mean you
would be mad if the SCOTUS did not find a right to that something
in the US Constitution...I feel incredibly strongly that drugs
should be legalized, but I admit any SCOTUS who "found" a right to
possess drugs in that way would be crazy, lawlessly
activist..."
If there was an amendment to the Constitution that said "the
people's right to have autonomy over their own bodies and what goes
into them shall not be infringed" you would have been pissed. Your
analogy doesn't work because there is nothing in the constitution
that specifically speaks to drugs.
|8.7.09 @ 4:25PM|#
"A Militia" is the armed populace. If they meant state militias,
and only state militias, they would have said so.
Turning militia into state militia into the National Guard means
the 2nd allows the govt to have an army reserve. Who would bother
passing _that_ amendment?
hmm|8.7.09 @ 4:27PM|#
Illinois and guns. LoL
Nothing like needing a registration card to buy ammunition. The
entire state is run by thugs in Chicago.
JB|8.7.09 @ 4:27PM|#
MNG, you are wrong. EscapedWestOfTheBigMuddy beat me to it, but
anyone with a basic understanding of English grammar can see
it.
Now, you can claim that most Americans, government employees,
Supreme Court judges, people with advanced degrees don't have a
basic understanding of English grammar, and I would likely agree
with you, but that doesn't make you any less wrong.
|8.7.09 @ 4:30PM|#
JB,
They can see what it means, they just don't want to. As I said
above, the 2nd Amendment is only unclear if you are doing mental
gymnastics to try and make it mean something other than what it
obviously says.
|8.7.09 @ 4:32PM|#
The term "collective right" doesn't even make sense. And it's telling that the proponents of that oxymoronic clusterfuck only apply it to the right to keep and bear arms, something they despise beyond measure.
Elemenope|8.7.09 @ 4:56PM|#
MNG, you are wrong. EscapedWestOfTheBigMuddy beat me to it,
but anyone with a basic understanding of English grammar can see
it.
In law, prefatory clauses fuck everything up, because of the
principle of surplusage (nothing written is without meaning).
Mentioning the militias does complicate "straightforward
interpretation", no matter how superior you believe your English
parsing skills to be or how self-evident you believe the functions
of the relative clauses are.
|8.7.09 @ 5:04PM|#
Mentioning the militias does complicate "straightforward
interpretation",
Why, other than becuase you say so? JB seems to give a very
compelling argument as to why the clause doesn't create a problem.
You don't give a response other than to say "this is law so it must
be abiguous".
Rich|8.7.09 @ 5:14PM|#
we don't let the states try "novel experiments" like
establishing official religions or banning free speech.
Just
towns.
Paul|8.7.09 @ 5:26PM|#
Chicago Democrats don't believe in a living constitution, they believe only in a dead one.
highnumber|8.7.09 @ 5:45PM|#
I don't know about Chicago specifically because Cook Country
is a haven for libs in the Midwest
No, it is a Democratic stronghold. There is a heck of a
difference.
MNG|8.7.09 @ 6:23PM|#
"there is nothing in the subordinate clause to indicate that it
restricts of modifies the independent clause"
Let's assume it is a subordinate clause, you don't think its at
least reasonable to see it as restricting "the right of the people
to keep and bear arms" to the militias in that clause? WTF?
No Name Guy|8.7.09 @ 6:34PM|#
Dang...I wish I was at home so I could make the full
quote.
Madison (I think) said in one of the Federalist Papers or in a
letter of the time (I found the quote in "The Debate on the
Constitution - a collection of Federalist, anti-Federalist
speeches, articles and letters from Ratification" - a great 2
volume set) that it was perfectly natural to have a general phrase
(e.g. militas) followed by a specific meaning.
A well regulated milita...blah, blah, blah is the general phrase,
while the 'right of the people to keep and bear arms' is the
specific.
In a similar vein, Article 1, Section 8 goes on about the general
powers of Congress, then specifically states what those are limited
to the specifically enumerated ones therein listed(although that
abortion of a Supreme Court of the 30's sure boned that one
up).
Big Muddy nails it, btw.
Besides, to take the collective approach, one has to take the
tortured position that "the people" mentioned in the 2nd are
somehow different than "the people" mentioned through out the rest
of the Constitution and the Bill of Rights.
Oh - and the National Guard is NOT "the milita". It's a reserve
component of the United States Army created by an act of Congress.
It's easy to find this - I leave it as a library exercise to those
who doubt it. If a simple engineer like me can find it in the books
of United States Code at the Seattle Public Library, any one
can.
"The Milita" is also defined in code as all able bodied men from 18
to 45 (plus a few others, like female officers of the National
Guard). This is important as a Supreme Court decision in 1917 said
that the draft was merely the method by which Congress is
exercising it's (specifically enumerated) power to "organize, arm
and discipline" the Milita.
LarryA|8.7.09 @ 6:34PM|#
"Federalism is an older and more deeply rooted tradition
than is a right to carry any particular kind of weapon."
Given that we were keeping and bearing arms long before any
government got big enough to have subunits to practice federalism,
I think his timeline needs overhauling.
Indeed, the power to regulate according to the needs of varying
local conditions is a hallmark of federalism that is as much a part
of the constitutional design as the individual rights provisions of
the Bill of Rights....
"Right up until we can pass a federal ban on assault weapons and
close the gun show loophole and..."
Firearms regulation is a quintessential issue on which state
and local governments can "serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the
country.
"But the reason that the Chicago handgun ban still isn't working
after twenty years is because other states have lax gun laws."
MNG|8.7.09 @ 6:36PM|#
"Under longstanding linguistic
principles that were well understood and
recognized at the time the Second Amendment was adopted, the "well
regulated Militia" clause necessarily adds meaning to the "keep and
bear Arms" clause by furnishing the reason for the latter's
existence. The first clause is what linguists call an "absolute
construction" or "absolute clause." It functions by melding the
sentence "A well regulated Militia is necessary to the security of
a free State" together with the sentence "The right of the people
to keep and bear Arms shall not be infringed" to express this
thought: "Because a well regulated Militia is necessary to the
security of a free State, the right of the people to keep and bear
Arms shall not be infringed." On its face, the language of the
Amendment tells us that the reason why the right of the people to
keep and bear arms shall not be infringed is because a well
regulated militia is necessary to the security of a free State. The
purpose of the Second Amendment, therefore, is to perpetuate "a
well regulated Militia.""
From an amicus in Heller by three professors of linguistics which
can be found here:
http://www.scotusblog.com/wp/wp-content/uploads/2008/01/07-290_amicus_linguists1.pdf
hmm|8.7.09 @ 6:37PM|#
Cook county hits the judicial hell hole list every other year. Saint Louis is on its way to making the list.
Elemenope|8.7.09 @ 6:58PM|#
Why, other than because you say so? JB seems to give a very
compelling argument as to why the clause doesn't create a problem.
You don't give a response other than to say "this is law so it must
be ambiguous".
I did also point out *why* because it is law it is ambiguous. Or
maybe you didn't read that part. If the militia clause is inactive
and does not in any way modify the second clause, why do you think
the founders dropped it in there? For color? For flavor? Because
they like how the word 'militia' looks on paper?
Come on, John. It's one thing to disagree with an interpretation.
It turns out that in this case I actually agree with your
interpretation of the amendment. But it is another thing entirely
to claim that the text is so straightforward that everyone who
interprets it differently is inherently stupid or deficient at
interpreting English. They are *reasonable disagreements*.
hmm|8.7.09 @ 7:20PM|#
All anyone has to do to realize exactly what was meant by the second amendment is read the arguments and suggestions from the people who wrote it. It's pretty hard to argue that it wasn't meant to apply to every person in every state at every time. Jefferson and Henry have some of the best arguments and quotes.
JB|8.7.09 @ 9:56PM|#
independent clause
A group of words made up of a subject and a predicate. An
independent clause (unlike a dependent clause) can stand alone as a
sentence.
MNG, it doesn't matter what you put in front of it. You might want
to take your graduate degree and get a refund and see if you can
take 5th grade grammar again.
The 2nd Amendment could say "In order to piss off liberals and make
their vaginas bleed, the right of the people to keep and bear arms,
shall not be infringed" and it wouldn't change a thing.
|8.7.09 @ 11:06PM|#
In order to piss off liberals and make their vaginas bleed,
the right of the people to keep and bear arms, shall not be
infringed
I like that wording better.
-jcr
|8.7.09 @ 11:08PM|#
The purpose of the Second Amendment, therefore, is to
perpetuate "a well regulated Militia.""
It seems that your confusion stems from your misunderstanding of
what a "well regulated militia" is.
In the language of the time, "well regulated" meant competent and
capable of self-defense. "Militia" meant any men old enough to bear
arms.
-jcr
hmm|8.8.09 @ 12:15AM|#
The other hilarious thing is this notion that anyone involved in
the bill of rights actually held militias in any sort of regard as
a military force and therefore requiring them to be armed. Almost
everyone in the military or who served couldn't stand the militia
men compared to the regular army soldiers. The romantic notion of
valiant farmers fighting is more myth than anything. Hell even
Washington wrote more than one time about his disdain for militias
and their men.
I'd like to see someone come up with any quote or document listing
the argument that they make against the second being for all from
any one of the people who was present for its creation. Hell I'll
even take an argument from the writings involved with colonial
(state) constitutions. Many of those had much simpler "2nd"
clauses.
Or how about the history of common law backing the right to bear
arms up to that point? Couple that with a shit ton of lawyers
writing the document and the attempted disarmament of the colonies
by the British and the local governors and what in the hell do you
think they meant?
|8.8.09 @ 12:58AM|#
hmm - excellent point on militias. notorious for their ability to find shiny baubles before finding the battlefield - if they even made it there because of all the booze they drank on the way.
mark|8.8.09 @ 1:22AM|#
The purpose of the Second Amendment, therefore, is to
perpetuate "a well regulated Militia."
Which was meant to mean, as jcr mentioned, a body entirely separate
from the U.S. Armed Forces. Just in case the U.S. ever tries to
take Illinois' water, for instance, the residents of Chicago need
to have arms in order to defend it. It's necessary to the security
of a free State.
MNG|8.8.09 @ 8:27AM|#
hmmm
Iirc Stevens dissent in Heller is full of what you ask for. Like I
said, I ultimately found Scalia's majority more compelling, but
it's not like the other side didn't have a reasonable position,
both textually and in terms of historical evidence. The founders
just were not very clear here.
MNG|8.8.09 @ 8:35AM|#
"Madison's original draft of the Second Amendment used a
formulation of the "well regulated Militia" absolute construction
similar to the one passed by Congress: "The right of the people to
keep and bear arms shall not be infringed; a well armed and well
regulated militia being the best security of a free country: but no
person religiously scrupulous of bearing arms, shall be compelled
to render military service in person." 1 Annals of Cong. 451
(Joseph Gales ed., 1790) (emphasis added)."
From the amicus brief cited above.
|8.8.09 @ 9:23AM|#
The operative question is: Is the right to "keep and bear" a fundamental individual right or not? If it isn't, and a "lawful government" can take it away when they find it convenient, then it isn't really a "right" at all per Jefferson's "self evident" language in the Declaration of Independence. If it is one of Jefferson's "inalienable rights" a "lawful government" becomes an "unlawful government" and is subject to replacement if it attempts to take the right away. Imagine for a moment the response to an attempt by Alabama to bring back slavery based on their local needs and "states rights"
hmm|8.8.09 @ 11:55AM|#
Stevens decent was full of interpretation. Which is the same
thing he wants for the 2nd. I'll read it again, but if I remember
correctly nowhere did he muster a quote or historic evidence from
anyone involved that outright saw the statement as limiting to, or
from, anyone. The historic documents and letters all point to the
belief that everyone gets a gun. Madison was the wishy washiest,
some like Jefferson and Henry were quite blunt in their
assertion.
Even common law at the time dictated a right to self defense equal
to that of the ability of the governing to do harm to you. The idea
was not novel at all and was present in several colonial charters
and later state constitutions.
One side of the argument requires interpretation and one does
not.
Elemenope|8.8.09 @ 1:54PM|#
hmm --
What makes those quotes from Jefferson and Henry less useful than
they otherwise would be is that they are the words of members of
the then-minority party.
Everyone forgets that. It would be like saying that we should take
take Strom Thurmond's view of the intent of the Civil Rights Act as
dispositive.
JB|8.8.09 @ 2:38PM|#
"The right of the people to keep and bear arms shall not be
infringed; a well armed and well regulated militia being the best
security of a free country: but no person religiously scrupulous of
bearing arms, shall be compelled to render military service in
person."
That's even more evidence that is an explicit individual right. Do
you see the semi-colon (more grammar)? Madison here is saying that
the best security is a free people being armed and then assembled
instead of a standing army.
There is only confusion for those who want to be confused. These
words are clear for anyone who made it past 5th grade: the right of
the people to keep and bear arms, shall not be infringed.
MNG|8.8.09 @ 3:24PM|#
"These words are clear for anyone who made it past 5th
grade"
That quote is from three college linguistics professors, well past
the 5th grade JB...Besides, one would think even a 5th grader would
see the clause before what you keep quoting, which seems to define
the Amendment's purpose (the right to bear arms is important and
not to be infringed because well regulated militias are necessary
to the security of a free state).
hmmmm
Lmnop makes a good point, you've got the wrong Founders on your
side! Also, Stevens' dissent is chock full o' history:
http://supct.law.cornell.edu/supct/pdf/07-290P.ZD
|8.8.09 @ 8:14PM|#
Also, Stevens' dissent is chock full o' history:
"In 1934, Congress enacted the National Firearms Act,
the first major federal firearms law.[1] Upholding a
conviction
under that Act, this Court held..."
Epic fucking fail. This is history a la Bellesiles and the 9th
Circus. The case [Miller] reached SCotUS via direct appeal of the
demurrer of the indictment. There had been no trial, let alone a
conviction.
Chock full o' history my ass.
|8.9.09 @ 2:44AM|#
These words are clear for anyone who made it past 5th grade:
the right of the people to keep and bear arms, shall not be
infringed.
I note also, that the language acknowledges the right as
pre-existing. It does not presume to grant it.
-jcr
hmm|8.9.09 @ 12:10PM|#
Mason (the reason for the bill of rights) and Hamilton both have
quotes and documents saying similar things. Many federalists made
short sighted arguments for not needing a bill of rights all
together. The party in power really has little bearing on the
intent. It's like saying the bill that made it through congress
(today isn't the best example) is clearly to be interpreted by the
party in power.
Both federalist and antifederalist made arguments and statements
for the individual right. The most influential on both sides used
language, usually in the form of fear of government, to support an
individual right.
Stevens argument is completely based on an omission of an outright
clause of the individual. He notes the problem with his conclusion
in his notes, although I don't think he meant to. He argues the
courts going from word to word without a greater context is one of,
if not the main reason they are wrong in their decision. The
problem with that is it is just what he is doing, removing the
context and grammar. Add to that his other argument is based on the
absence of language present in almost every other similar state
level document and all he has is a vague interpretation of what
might have been meant.
I realized why I probably didn't read most of his
dissent.
The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right."
His fundamental inability to understand what a fucking right
is.
His entire argument is based on the texts of state suggestions and
and omissions in comparison to the adopted form. The underlying
theory and texts involved with protection from government and
standing armies is superficially touched on as if to appease any
argument using such quotes. It's not exactly a slam dunk dissent. A
fair portion of it is based on bullshit precedent as well. The
historic part is slim and not a solid argument.
JB|8.9.09 @ 1:06PM|#
That quote is from three college linguistics
professors...
Which hurts your case. College professors are known for being
morons.
Again the way the sentence is structured it doesn't matter what
comes before it. It could say: "Because MNG will be confused, the
right of the people to keep and bear arms, shall not be
infringed."
Michael Ejercito|8.9.09 @ 1:37PM|#
People who oppose the 2nd also oppose the 1st, 5th, 8th, and especially the 13th.
MNG|8.9.09 @ 3:15PM|#
JB
Sigh. It does matter what comes before it as it indicates the
purpose of the amendment. In your example the purpose is to keep me
confused, and to do that the right of the people to bear arms
should not be infringed. But in the actual amendment the purpose is
to keep a well regulated militia. This is important because the
right of the people to bear arms is important BECAUSE well
regulated militias are necessary. Therefore it's reasonable to hold
that the "right of the people to bear arms" relates only to the
bearing of arms FOR militia service.
MNG|8.9.09 @ 3:32PM|#
hmmm
In his dissent Stevens takes the 2nd clause by clause. He takes the
first clause and notes that its priority in the amendment indicates
it states the overall purpose of the amendment, he then notes its
similarity of many state constitution provisions of the time (which
were clearly about the importance of militias vs. standing armies),
and its crucial differences from others (which explicitly mentioned
a right to arms for hunting or self defence). Later he references
historical reasons to think that the "bear arms" language was
understood at the time to refer to military service. Then in Sec.
II of his opinion he discusses the historical concern of the
Founders of standing armies and their preference for militias. He
notes several proposals from state ratifying conventions on the 2nd
which seem to support the idea that it is all about militias. He
draws on Madison's earlier drafts (it contained a conscientous
objector clause) He then, in Sec. III discusses Blackstone's
discussion of the right to bear arms, the English Bill of Rights,
post-enactment commentary and post-Civil War legislation. How you
can describe all of that historic discussion as "slim" is beyond
me...Let's just say I'd hate to be set up on a date with a woman
you described as "slim."
|8.9.09 @ 5:47PM|#
Therefore it's reasonable to hold that the "right of the
people to bear arms" relates only to the bearing of arms FOR
militia service.
Riddle me this. How do you have a well regulated militia WITHOUT
first having a generally armed citizenry.
Stevens dissent is crap. He can't even get the facts right on the
single most significant 2nd Amdt case the Court had previously
ruled on. (And that ruling was something of a mystery wrapped
inside an enigma). Why should I give ANY consideration to the rest
of it? [Yes I know, it is really the work of his clerks, but HIS
name goes on it just the same.]
MNG|8.9.09 @ 7:46PM|#
"How do you have a well regulated militia WITHOUT first having a
generally armed citizenry."
I guess you have National Guards or something. They are well
regulated militias. And the people's right to bear arms in a NG
unit is pretty un-infringed...
"Why should I give ANY consideration to the rest of it?"
Because like any long opinion it has numerous arguments and points
of evidence, and you can't reject them all by pointing out that one
is in error...
Look, I oppose gun control measures. I think that morally people
have a right to defend themselves, and that right includes the
right to arm oneself for one's defense. I simply say that the
Founder's gave us, in the 2nd, a very poor tool to ensure that
right, because there are reasons to read it as either granting a
collective or individual right.
hmm|8.9.09 @ 9:01PM|#
In his dissent Stevens takes the 2nd clause by
clause.
so you agree that a prefatory clause is just that? Because Stevens
dissent hinges on this not being true1, which is why he dissects
down to the word in order to make his points. Tricky little thing
that grammar can be.
You don't have to paraphrase the dissent for me. I reread it. Most
of the language involving standing armies dealt with citizenry and
the fear of a standing army. The idea being that a militia or armed
citizenry were both preferred to a standing army. The general theme
was a fear of exactly what we currently have.
The bear arms sentence or two also ignores the use of that language
in at least 2 other constitutions or statements of rights that
referred to hunting and at least one self defense. This part made
it particularly clear that he was being selective in his
recognizing the use of phrases.
Again you assume the preference for a militia, which you might want
to look into the period definition for, means just a militia. The
militia statement was more than once followed by the word citizen
and body of citizens. At this point in time it was almost a
given.
He draws on a lot of selective phrases and out of context
comparison, both early drafts and suggested amendments from the
state conventions.
The argument is slim. most of it is in a very narrow context,
ignores obvious glaring missuses of context and even ignores
previous precedent and common law. All to arrive at the argument
that today's modern precedent is superior. His entire argument
relies on dissecting word for word, ignoring grammar, questionable
legal context of previous precedent, and out of context arguments
for amendments to the 2nd. It's a pretty pathetic attempt at
justifying the status quo.
The flip side of the argument is grammatically correct, has a body
of direct in context support. Where are the clauses that deny
citizens the ability to bear arms. If the belief is that only a
certain group can bear arms then why was the idea of baring others
not floated? If we are going to play the magical missing language
argument lets see if Stevens theory holds up. Show me suggested
amendments, letters, discussions, napkin notes, hell anything
suggesting that people should not individually be allowed to bear
arms. That was discussed during the creation of the 2nd.
hmm|8.9.09 @ 9:24PM|#
I simply say that the Founder's gave us, in the 2nd, a very
poor tool to ensure that right, because there are reasons to read
it as either granting a collective or individual right.
The tool isn't that poor. Like anything else created by committee
it is a mixture of opinion to try and appease as many as possible.
The fact most amendments in the bill of rights are so short is a
first hint at understanding the need to get everyone to sign on.
The tragedy is the years of judicial activism creating precedent
contrary to the spirit of the law.
|8.10.09 @ 1:20AM|#
I guess you have National Guards or something.
Jaysus, that's lame even for you. The NG didn't exist for the first
100 years of the Republic. And, unlike the militia (as discussed in
Miller), the NG is completely armed BY THE GOVT.
Hint: read up on the notion of a "select militia" - it's the dog on
the porch that you keep trying to hunt.
Because like any long opinion it has numerous arguments and
points of evidence, and you can't reject them all by pointing out
that one is in error...
Simple errors do not build credibility in complex arguments.
Although you saying this does make me believe you really are a
liberal/progressive and all that matters is getting at the result
you want.
|8.10.09 @ 3:02AM|#
Try this on for size:
"Thai food being extremely delicious, the right of the people to
run ethnic restaurants, shall not be infringed."
Does this mean I only intend to protect Thai restaurants, and not
Hungarian or Greek? Does "the people" only refer to those who run
Thai restaurants?
|8.10.09 @ 10:37AM|#
Obviously none of the Constitution applies to Chicago - especially the 13th amendment. That's why the political massa's of Chicago still have so many slaves of all races.
JB|8.10.09 @ 11:49AM|#
MNG, you are still having problems with reading comprehension.
The right is recognized by the 2nd amendment. It doesn't matter
what the dependent clause says.
Honestly, you should go back to elementary school. You keep
squawking 'it matters', but it doesn't. That is the whole point of
an independent clause. It stands alone. The rest is an
explanation.
wayne|8.10.09 @ 12:51PM|#
I expect Illinois, with its strong commitment to the
"laboratory of the states", to adopt their own shall-issue statute
the next time the legislature convenes.
RC, is that tongue-in-cheek, or are you serious? I grew up in
Chicago, but have not lived there for many years so I am completely
out of touch with Illinois politics. Illinois (well, at least
Chicago and burbs) seems to be about as anti-2A as is possible,
hence to expect the legislature to pass a shall-issue statute
surprises me. The Illinois constitution garantees the right to bear
arms pretty clearly of course, but no Chicago politician would ever
let a little thing like the written law prevent him from enforcing
his will.
wayne|8.10.09 @ 1:19PM|#
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)
I just thought it would be interesting to see the wording in the
Illinois constitution with respect to arms. Seems pretty clear to
me, yet Chicago ignores it.
|8.13.09 @ 9:06AM|#
It's about time to revolt. Do not vote for any incumbent in the next election. There oath to the constitution means nothing.
|8.17.09 @ 9:03PM|#
The second amendment, as was the bill of rights, was submitted
to all the states for ratification which it subsequently was. There
is no mention of "Congress" or the "Federal government" being the
only authorities which shall not "infringe" the right to keep and
bear arms.
The constitution is federal law to which all states have agreed to
abide. The right to keep and bear arms, the right of the PEOPLE
shall not be infringed.
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