I'm Dreaming of a Libertarian Obama

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Jeffrey Rosen pens a short essay in The New Republic arguing that Barack Obama can be, in Rosen's words, "the first civil libertarian president."

After Obama was elected to the Illinois state Senate in 1996, he defended individual rights in a way that might have marginalized him: He joined only two other senators in voting against a bill to forbid convicts on probation from having contact with street gangs, and he voted against a bill to expand the death penalty to gang-related murders. But Obama nevertheless won the respect of police and prosecutors in Chicago by building those "alliances of consent." One of his greatest legislative triumphs was a bill to require the videotaping of all confessions and interrogations in capital cases. Initially, police, state prosecutors, and the newly elected Democratic governor were strongly opposed, some death-penalty abolitionists viewed the bill as too moderate, and legislators were afraid of being soft on crime. But Obama led daily negotiations (without reporters) during which he emphasized his opponents' common values. At the end, the bill had the support of all parties, passed unanimously, and today has been adopted as a model by four states and the District of Columbia.

There's more recent stuff and a hashing-out of how John McCain would attack Obama on this front. Rosen expects Obama to parry better than Dukakis did versus Bush; I agree, and I think the criminal issues that sunk Dukakis have less salience than the war on terror issues that inflame the gonads of the McCain Right. I heard way too many arguments that the PATRIOT Act vote would sink Russ Feingold or the wireless wiretap debate would save Denny Haster's job to take that line too seriously.

But what about those other liberties? Aswini Aburajan reports from Obama's last presser, which came after the NIU killings.

Asked to comment on Cheney's decision to add his signature to a brief supported by 55 senators and 250 congressmen to have the Supreme Court overturn a ban on handguns by the District of Columbia, Obama said he wasn't familiar with the statements made by either the Vice President or members of Congress.

However, he went on to defend the right of municipalities to establish their own handgun laws. "The city of Chicago has gun laws, so does Washington, D.C.," Obama said. "The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gangbangers and random shootings on the street isn't born out by our constitution." Washington, D.C., Mayor Adrian Fenty is an endorser of Obama.

Asked to elaborate on his understanding of what the second amendment actually means, Obama said that he does believe the second amendment "speaks to an individual's right." But he said that right could be "subject to common-sense regulation just like most of our rights are subject to common-sense regulation. So I think there's a lot of room before you [sic] bumping against a constitutional barrier for us to institute some of the common-sense gun laws."

So: Obama is a civil libertarian, except when he is not.

NEXT: The "Brown-Black" Race Card?

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  1. i am not a murderer, except when I kill people.

    I really don’t understand some libertarians fascination with obama. he seems like a social engineer and economic authoritarian like the rest.

  2. Obama is a civil libertarian, except when he is not.

    Obama is a civil libertarian on the issues that his supporters care about, and not on the issues that his supporters do not care about or actually dislike.

  3. obama is as libertarian as ron paul is president.

  4. Everyone’s a libertarian when it comes to stopping government from messing with them, but almost no one is when it comes to stopping government from messing with those people.

    I consider it a pretty strong civil liberties violation that Obama is one of the leading sponsors and pushers behind eliminating the secret ballot in union elections. Secret ballots should be a neutral civil liberties issue; unions fought hard to get secret ballots because of employers’ retribution. Turning the tables just because it seems like intimidation may be on your side now is too typical.

  5. I’m old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

    Then again, so is anyone over eight years of age.

    Shouldn’t you actually accomplish something before you overreach?

  6. I don’t see how “common-sense gun laws” necessarily runs against the Second Amendment. Common-sense, DC’s laws surely aren’t – the fact that gun bans don’t decrease crime means you can’t ban guns even under the common-sense standard Obama references – but the idea that guns can’t be regulated at all? I mean a government can’t ban guns from courthouses? Sure, we wouldn’t have AWB II, but still, common-sense regulation that’s actually rational not knee-jerk is certainly permissible under the Second Amendment.

    I’m not sure I see where concealed carry fits into the Second Amendment either, fwiw.

    Having said that, Obama’s support for flat-out bans is clearly wrong. I can’t see any way that Heller will support a flat-out ban, nor do I see any way that Heller will support an absolute right to firearms. I would predict strict scrutiny, which means that guns are open to regulation, just like everything else in the world.

  7. A common sense gun law would be to not allow people to have an army tank parked in our driveway or a nuclear bomb in our back yard.

  8. “obama is as libertarian as ron paul is president.”

    Folks, we have a winnar!

    /The only place I can see Obama being Libertarian is in the matrix, as Morpheus.

  9. I’m not sure I see where concealed carry fits into the Second Amendment either, fwiw.

    It fits right in there with “shall not be infringed”.

  10. I really don’t understand some libertarians fascination with obama.

    For me it begins and ends with transparency.

    I consider him economically a wash with the other remaining candidates. McCain hates capitalism, he openly admits it. How am I supposed to trust him on that issue over Obama or Hillary or anyone else?

    But Obama has the proper attitude towards transparency, and if he opens the window just a little it may be possible for activism-minded people to burrow their way into all the BS that’s been hidden for 7 years and bring the Bush criminals to account.

    I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified. Before that can happen, we need to shine sunlight on the federal government again. I don’t see a candidate still in the race who can make that happen other than Obama. I’ll still almost certainly write in Paul personally, but if Obama wins in November don’t expect any tears from me on election day.

  11. joe,

    I don’t think so. I’ve been hearing the argument for years. It’s an old debate, and one that really had never coalesced into a Supreme Court opinion until now. It’s also been a part of legal scholarship for a long time. Gun ownership used to be nearly ubiquitous, too, so people probably didn’t think there was anything to debate.

    In any event, I think Obama fails the libertarian test without bringing gun rights into the discussion.

  12. bookwoorm: neither tanks nor nuclear bombs are arms (how are they borne by a person?), so while it’s reasonable, it’s not gun law.

  13. “I really don’t understand some libertarians fascination with obama”

    We’re fascinated with him because he’s not John McCain or Hillary Clinton.

  14. How does banning concealed carry prevent either keeping or bearing arms?

  15. the perils of filling out forms in haste.

    @4:20 is by me, addressed to Russ 2000

  16. Well if its concealed carry surely it is some form of bearing the arm, no?

  17. Russ2000,

    In many places, openly carrying a gun is illegal, too.

    So, if you can’t openly bear arms, and you can’t bear concealed arms, that’s a bit of a problem for people who want to bear arms, no?

  18. “I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified.”

    Fluffy, I hope you also include the Clintons on being held accountable for all their past corruption as well as Bush and his people.

  19. Jeffrey Rosen writes well. Learn from him David. Learn from him.

  20. “the first civil libertarian president.”

    Dude, wtf?

  21. I really don’t understand some libertarians fascination with obama.

    Best to know as much as one can about our next President.

  22. ……a Libertarian Obama

    That’s right, in your dreams, baby.

  23. I’m old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

    Quick everyone lets make a list of individual right that have never been thought of as eccentric!!

    Ready? GO!

    ……

    umm ok…how about listing individual right that are popular enough for Obama to support?

    (Note: this is what a cyber PWNOWNZ looks like)

  24. I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified.

    Literally? If so, the Romans ain’t gonna have a damn thing on you, Fluffster. Fuck the Via Appia, we could probably line both sides of I-95 with crosses based on these criteria.

    I, am however, uneasy with your contempt of Congress criteria. I’m openly contemptuous of Congress on a fairly regular basis.

  25. As I’ve said before:

    Obama’s a relative newcomer to federal government, so he doesn’t have years and years of cronies built up, and he likely will have trouble getting his own ideas passed.

    Get that? A weak executive. That’s the libertarian/pragmatic approach.

    That being said, he’s still a fucking commie…

  26. “Dude, wtf?”

    Hello!

  27. Whatever, corning. You’re a legend in your own mind.

  28. “That being said, he’s still a fucking commie…”

    But he’s a nice one, not an arrogant one like Gore, Kerry, or Hillary.

  29. “neither tanks nor nuclear bombs are arms (how are they borne by a person?)”

    Right. But hand grenades and mustard gas can be carried and common sense has banned them without much 2nd Amendment complaint. So the line to be drawn on what arms can be carried by citizens is political, not written in some sort of constitutional stone. Of course arguing that it is written in stone is a political move, just like “strict constructionism” for judges is a political stategy of constitutional interpretation.

  30. I lose the thread! I figure the last post is the opposite of “winning the thread” in its unpopularity, but I figure it is based on reason, so…

  31. Sweet fucking Christ, joe, how many times today are you going to say something that makes perfect sense? I’m starting to wonder if you are becoming a libertarian by hanging out here so much, or if someone has stolen your identity.

    How’s that for a backhanded compliment?

  32. joe, I was referring to your 4:25. Don’t misinterpret the praise.

  33. I really don’t understand some libertarians fascination with obama.

    Fascination is one thing, throwing the man a vote is something entirely different.

    Best to know as much as one can about our next President.

    Good point and difficult to determine because he’s a politician and therefore if his lips are moving……

  34. But he’s a nice one, not an arrogant one like Gore, Kerry, or Hillary.

    Fuck…you are right.

    You have convinced me Weigle of Reason magazine.

    I, libertarian at large, Joshua Corning will now vote for the nice commie cuz that is the right thing to do for the libertarian cause.

  35. well if obama doesnt get the nod, i hope the dems wont run into a brick wall

  36. Nothing drives a person toward Obama like hearing Hillary or McCain give a speech. I heard Hillary on the tele the other day while she was stumping in Texas and I thought I was going to vomit. There was something wrong with her voice… there was too much raw passion in it.

  37. Hand grenades? Hell, I got carded the other day for buying a gallon of lacquer thinner.

  38. I said it in another thread, and I’ll say it here, stop calling Obama a libertarian, or libertarianish. Being less socialistic and less authoritarian than Hillary or Lenin doesn’t make someone a libertarian. Remember, Obama wants a national healthcare system. It’s not as invasive as Hillary’s automatic enrollment and garnishing of wages healthcare plan, but it’s still government healthcare. That right there is a sign of not being a libertarian.

    In my opinion, a few Reason writers are trying to justify their support for Obama. Yeah, we get it, he’s a good speaker and makes us all feel warm and fuzzy inside, but he’s still a liberal and a Democrat. While he and us might agree on some things, we also can find agreements with Ted Kennedy, but that doesn’t make him a libertarian. Nor does it make us liberal.

  39. Joe P Boyle and
    joshua corning in love
    I fear the future.

  40. Raw, never saw a pint size can of Whoop Ass before. 🙂

    But he’s a nice one, not an arrogant one like Gore, Kerry, or Hillary.

    And that is one major factor holding St Hill back, she ain’t very likable. Obama, is kind of cool, hip, young, carries himself well, has good presence, and it’s easy for people to project that into all kind of good will. Espc, the moderates, because moderates don’t think like us anyway. Moderates are not arguing over whether or not the government should be in the medical business they’re arguing over whose plan is better. St Hillary’s or Obama’s, and Obama’s seems much more sensible and costs less.

  41. Obama is a civil libertarian on the issues that his supporters care about, and not on the issues that his supporters do not care about or actually dislike.

    Someone who supports civil liberties as a matter of political opportunism does not really support civil liberties in any meaningful way. The whole point of civil liberties is that they are guaranteed even though they are unpopular.

    Oh, and Official Agreement with joe @ 4:25.

  42. I agree with Fluffy. If the only thing Obama does is increase transparency of the federal government, his presidency would be beneficial. Isn’t there some saying about the control of information and dictatorships? I can’t remember it, but if I could I’d mention that to reinforce my point.

    Obama is the only candidate talking about transparency. It gets little media coverage and hardly any voters know that they should care about it, so they don’t. So Obama has no reason to pander on this issue, and his track record (videotaped confessions, the federal law about an earmark database) shows he actually cares about it.

  43. Ted Kennedy is anything but a libertarian.

    I spent most of my life considering Ted Kennedy a political enemy.

    Ted Kennedy is a dirty, filthy leftist bastard.

    But if I could see Ted Kennedy as President in 2009 over McCain I would take it in a heartbeat. I would dance in the streets for joy.

    Teddy would throw the Bushites to the god-damn lions, and I would sing his praises for it.

  44. Obama’s smooth. I like how he claims to support an individual right, yet defend localities that wish to enact their own “gun safety” laws.

    An examination of Chicago’s laws regarding handguns shows that their ban on them differs from DC’s only in the wording, but hardly the outcome.

    On top of that, Obama has spoken out in favor of banning not just so-called “assault weapons” but all semi-automatic firearms.

    Additionally, he has spoken out in favor of a federal, nationwide ban on all concealed carry for any citizen who isn’t a law-enforcement officer.

    That the man has the audacity to claim he supports an individualist view on the Second Amendment would be utterly laughable if not for his Reaganesque level of charisma.

  45. Teddy would throw the Bushites to the god-damn lions, and I would sing his praises for it.

    And then 10 min later Teddy would re-institute the draft and invade Africa.

    Fluffy, being confused, would continue to sing praise.

  46. “that inflame the gonads of the McCain Right”

    McCain Right??? What the *&%^ is that? That lmost sounds like “the Hillary Right.”

  47. Obama is only a libertarian if the definition of liberatarian has been re-written to be synonomous with socialist.

  48. Teddy would throw the Bushites to the god-damn lions, and I would sing his praises for it.

    I wouldn’t go that far, but the Bush administration does need to pay for the crimes they have committed. Given their penchant for secrecy, we likely don’t even know what they all are. I’ll bet on my last sentence.

  49. his Reaganesque level of charisma.

    I don’t get that, either. The man makes my skin crawl. Maybe I’m immune to charm or something.

  50. Gibert, is Austan Goolsbee a socialist too?

  51. joe $4:25

    I meant that so long as you can either concealed carry or open carry, that doesn’t abridge the ability to bear. I guess I’m more of a “the Second Amendment protects military arms not hunting rifles” kinda guy, so I lean more in the favor of “you can’t ban automatic weapons” and less in the “you can’t ban concealed carry.”

    I mean, I can’t see how a state could mandate gun possession and run afoul of the Second Amendment, and the state could mandate that those guns be carried openly under their ability to regulate the militia. I mean, the term “well-regulated” means something, even if it’s well-trained, which implies that someone can train them, and as far as I’m aware, military dress code is part of military training. Right? The militia will be ever-vigilant against foreign invaders and all that? How are we supposed to be protected by guns behind every blade of grass if the person holding the gun doesn’t know how to use it?

  52. I don’t get that, either. The man makes my skin crawl. Maybe I’m immune to charm or something.

    Really? Ya I see him as fluff that will be gobbled up by all the people behind him and the byzantine US government’s bureaucracy…which in libertarian terms might actually be nice.

    Oh well McCain is going to be the next president anyway so it doesn’t really matter.

  53. I’m old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

    Maybe in Massachusetts. In my native Virginia, asserting that gun ownership is not an individual right would be seen as fairly eccentric and a certainly a surefire way to lose an election. I don’t think I heard the “collective right” 2nd amendment interpretation until I got to college despite my father being a government professor and growing up in the fairly liberal Charlottesville, va.

  54. Warty-

    I think Obama is an exceptional public speaker. That he seems able to persuade people who, by all rights, vehemently disagree with him is what I find creepy about it.

  55. Obama is the only candidate talking about transparency

    Something like Bush I insisting that there would be no newt axes. Or the Republicans preaching the gospel of fiscal restraint.

  56. TWC, don’t forget Bush II’s “humble foreign policy”.

  57. The militia will be ever-vigilant against foreign invaders and all that? How are we supposed to be protected by guns behind every blade of grass if the person holding the gun doesn’t know how to use it?

    Hence the original reason for instituting the CMP and the NRA.

  58. So the line to be drawn on what arms can be carried by citizens is political, not written in some sort of constitutional stone.

    Well, sorta. There are decisions to be made through the political process, but that isn’t the same thing as saying that it’s open season.

    We can have laws against harrassment or slander without running afoul of the First Amendment because 1) there is a compelling interest, 2) the law if carefully crafter to address that interest, 3) the law is narrow enough to address the interest without stomping on all sorts of other areas, and 4) the laws don’t intrude in a meaningful way on people’s ability to engage in the practices that the First was intended to protect, like political speech, voicing one’s opinion, engaging in social intercourse, and the like.

    Similarly, there were certain purposes behind protecting the right to bear arms. A list might look like: hunting/birding, home defense, personal defense, sporting, serving in the militia – the list being based on the intent of the framers in drafting the amendment. If a law places an undue burden on anyone trying to do any of these things, then it violates one’s rights.

    “Common sense” is a turn of phrase people use when speaking in general terms, and is certainly not the right standard in figuring out what would pass constitutional muster. It doesn’t mean anything in and of itself, so it’s impossible to say just from that one quote what “common sense” regulations would be.

  59. John McCain is truly a lackluster speaker

    “There are going to be more wars, my friends, more combat wounds, more PTSD….the prospect of a brighter future is not clear”

    I can’t think of anything more depressing, especially when said slowly by a 74 year old man. The guys speeches have an effect on me not unlike Ambien.

  60. Should read properly, “not unlike that of Ambien”.

  61. The Wine Commonsewer: I would think fans of Radley Balko’s work would be more appreciative of Obama taking on the immensely corrupt Chicago police on the whole interrogation videotaping thing.

    So, you know, practicing what he preaches.

  62. “Common sense” is a turn of phrase people use when speaking in general terms, and is certainly not the right standard in figuring out what would pass constitutional muster.

    I’d be tickled four shades of awesome if gun control laws had to pass a strict scrutiny test.

  63. Well, John Roads, the “collective right” interpretation has been the law of the land since before any of us were born. I’m going to stand pat: the “individual right” interpretation was an eccentric, fringe position. It was not mainstream, it was not the law, and it was not the reigning Constitutional doctrine.

  64. The Wine Commonsewer: I would think fans of Radley Balko’s work would be more appreciative of Obama taking on the immensely corrupt Chicago police on the whole interrogation videotaping thing.

    But see, that’s like taking on the Mafia, you just aren’t likely to find many people who are down with corrupt cops. Yes, a few ostrich-like law-and-order types will be in denial, but most everyone else is going to be thrilled.

    TWC

  65. Well, John Roads, the “collective right” interpretation has been the law of the land since before any of us were born.
    Well, I guess we have reduced the situation down to it’s most fundamental level. I don’t think there is any evidence to back up your assertion, the supreme court has not ruled on this issue one way or the other, and certainly in Virginia the “individual right” to keep and bear arms is unquestioned.

  66. Try to look beyond joe’s use of the loaded terms “eccentric” and “fringe” and realize that at one time the view that the state could not impose segregation on taxpayer-funded facilities was an eccentric and fringe position. The view that states could not impose poll taxes was once an eccentric and fringe position. The view that equal protection of the laws applied to homosexuals was once an eccentric and fringe position. And so forth.

    Although in the case of the Second Amendment I think joe is overstating the case a bit when he says “8 years”. Certainly for at least 30 [perhaps 40] years the view that the 2nd Amendment is an individual right was held by a large enough minority of the population that the characterization of the view as “fringe” or “eccentric” just isn’t statistically valid. I think it’s more proper to say that it was outside the mainstream of existing Constitutional precedent, and despite representing the political view of a large group, a desperate legal battle was and still is being fought to maintain the status quo.

  67. Um, yes, yes it has. The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

    I cannot speak to Virginians’ knowledge of constitutional law.

  68. TWC: there’s not being down with corrupt cops and then there’s actually doing something about it proactively.

    There’s little political gain in protecting against police corruption before it blows up spectacularly publically.

  69. Someone who supports civil liberties as a matter of political opportunism does not really support civil liberties in any meaningful way. The whole point of civil liberties is that they are guaranteed even though they are unpopular.

    And

    Try to look beyond joe’s use of the loaded terms “eccentric” and “fringe” and realize that at one time the view that the state could not impose segregation on taxpayer-funded facilities was an eccentric and fringe position. The view that states could not impose poll taxes was once an eccentric and fringe position. The view that equal protection of the laws applied to homosexuals was once an eccentric and fringe position. And so forth.

    WTF?!?!

    I totally said this at 4:40 and said it 5 millions times better!!

    I deserve the awsomenessessessist crown of Reason cool!!

    Just like joe got for hinting like three days ago that maybe in a nation that has liberal democratic traditions that a thug like Chavez might maybe have a little less power if people don’t like what he is doing…maybe.

    WTF?!

  70. Wee, I didn’t mean it wasn’t cool. I’m happy that Obama took on the Chicago Police corruption. I just mean it’s not terribly controversial and isn’t likely to polarize the electorate, like say his stance on pistolas and health care.

  71. The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

    Supreme Court decisions have been overruled in the past, and will be again. Sometimes the Supreme Court is just plain wrong. I expect that is unarguable, even by joe.

  72. {Jon Stewart walks out. Hands Corning Reason’s Awesomest Cool Crown}

    And the crowd goes wild…..

  73. joe sez In many places, openly carrying a gun is illegal, too.

    It was made illegal in California when the Black Panthers were doing it. There you go joe, a two-fer.

  74. The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

    Source please.

  75. Um, yes, yes it has. The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

    Quoting Wikipedia:

    On March 30, 1939 the Supreme Court heard the case. Attorneys for the United States argued four points:

    1. The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
    2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
    3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
    4. The “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230” was never used in any militia organization.

    Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court.

    On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:

    In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

    Describing the constitutional authority under which Congress could call forth state militia, the Court stated:

    With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

    The Court also looked to historical sources to explain the meaning of “militia” as set down by the authors of the Constitution:

    The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

    If Miller hadn’t been a shady character and had shown up, he could have easily demonstrated that short-barreled shotguns are in fact ordinary military equipment. The Germans thought Americans were barbarians for using them in WWI.

    But that doesn’t really have anything to do with the court finding individual vs. collective right. I just think it’s amazing that the only ruling to address that is based on a case where the guy didn’t even show up.

  76. joe sez The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intented to allow the formation of state militias.

    Wrong joe, but thanks for playing. Why don’t you stick to race-baiting?

  77. Joe: Here’s a link to US v Miller (the 1939 gun rights case) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174

    The words “collective right” do not appear in it, and the interpretation of the case has been a subject of debate since then. Certainly the collective rights argument has been around since this time, but it has never been a settled legal question.

  78. 3. The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

    Well, I’m off to the gun store to get a select-fire M-4 and some grenades. Wait, what’s that you say? …Shit. Never mind.

  79. If the only thing Obama does is increase transparency of the federal government, his presidency would be beneficial.

    It will be physically impossible for that to be the only thing he does. He will do lots and lots of other things, just by being in the White House.

    My question is, what else is he likely to do? So far, the answer I’m getting is, little to nothing that I will like.

    I totally said this at 4:40 and said it 5 millions times better!!

    Sorry, josh. Too many words. On the web, brevity is teh king.

    Well, John Roads, the “collective right” interpretation has been the law of the land since before any of us were born.

    Not really. The Supreme Court has never adopted the collective right interpretation. I’d have to dig through a bunch of old stuff to see if any Circuit Court has, but if the have, its only the governing interpretation for their Circuit.

  80. obama is as libertarian as ron paul is president

    Please note that “civil libertarians” are people who say they support civil liberties. This has no relation to the political philosophy, libertarian, which supports minimal government.

    Obama is an ACLU-bertarian.

    I’m old enough to remember when stating that the Second Amendment was an individual right was an eccentric position, one libertarians urged public officials to adopt, with little success.

    And I’m old enough to remember when the right to keep and bear arms was treated the same way all the other rights are.

    When I graduated high school (1965) almost every high school in New York City had a rifle team. Students carried their rifles to and from school on the subway, and got about as much notice as the band kid with a trombone.

    Anyway, the individual interpretation isn’t “eccentric” any more, or Hillary and Barack wouldn’t be claiming to believe in it.

    I mean a government can’t ban guns from courthouses?

    What’s so special about a courthouse? Why should you want to encourage multiple random murders there? Other than the high probability lawyers will be involved, that is.

    How does banning concealed carry prevent either keeping or bearing arms?

    We’ve had the concealed v open carry debate before. One reason is that requiring open carry allows law enforcement to harass minorities they think shouldn’t carry. Another is that criminals can open fire on those carrying first, eliminating resistance.

    Obama’s a relative newcomer to federal government, so he doesn’t have years and years of cronies built up, and he likely will have trouble getting his own ideas passed.

    Does he have any ideas of his own?

    insisting that there would be no newt axes

    Gingrich is back? [Sorry, I couldn’t resist.]

    The Supreme Court ruled as far back as the 1930s that the 2nd Amendment was a collective right, intended to allow the formation of state militias.

    Self-contradictory. Members of state militias were, and still are, expected to show up bearing their own firearms. See Texas State Guard. IOW, “We need state and local militias to secure the government, therefore individuals must be armed.”

  81. Here’s a discussion of it’s meaning on the SCOTUS blog:

    http://www.scotusblog.com/wp/uncategorized/court-agrees-to-rule-on-gun-case/

    again, it’s hardly a settled legal issue…if it were, it is unlikely that the court would be hearing this case now.

  82. RC sez I’d have to dig through a bunch of old stuff to see if any Circuit Court has

    I’ll save you the trouble, the wrongway 9th has. What does THAT tell you?

  83. I’d have to dig through a bunch of old stuff to see if any Circuit Court has, but if the have, its only the governing interpretation for their Circuit.

    The Ninth Circuit (California) has. The Fifth Circuit (New Orleans, in a Texas case) ruled it an individual right.

  84. Look at the key sentence in Miller:

    In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

    The court is saying, in effect, that weapons that have some reasonable relationship to teh the preservation or efficiency of a well-regulated militia are protected by the 2A. Nothing there about collective rights.

    The reference in the discussion about militia to “arms supplied by themselves” is generally regarded as being inconsistent with a collective right interpretation. Its hard to say that the 2A protects a right of the states and to say that it applies to arms owned by private citizens.

  85. What does THAT tell you?

    That the 9th Circuit treats it as a collective right.

    The 9th is also the Circuit that is most likely to be overturned by the Supremes.

    What does THAT tell you?

  86. I’ll save you the trouble, the wrongway 9th has. What does THAT tell you?

    What is it with the ninth? The water supply? Too close to Hollywood? Fear of the Earth opening up?

  87. FWIW, the 9th Circuit Court has also ruled that if you build a machine gun for your own personal use, that it obviously is not involved in interstate commerce.

    I don’t recall the case, though the Supreme Court smacked that one down at about the time that Raich was being ruled on.

  88. The 9th is also the Circuit that is most likely to be overturned by the Supremes.

    RC, are you taking stupid pills from joe?

    That was my point.

  89. Just to simplify. The DoJ argued essentially the ‘collective rights’ in their appeal of Miller. Miller was not represented before SCotUS (how different things might have been if he had been). The court didn’t buy it. Had the court bought it, they would’ve noted Miller’s lack of standing to assert a 2nd Amdt challenge. They did not. They remanded the case for an evidentiary hearing (to determine if the gun in question had military usefulness). Miller by then was dead and Layman (his co-defendant) plead out and the case mooted. Only the incredibly mendacious or totally uninformed argue that this established the collective right as precedent.

  90. Thank you, Warty.

    Mr. Rhoads, The words “collective right” do not appear in it is what’s called a “semantic game.” As is RC’s The court is saying, in effect, that weapons that have some reasonable relationship to teh the preservation or efficiency of a well-regulated militia are protected by the 2A. Nothing there about collective rights. The concept of a collective right – that the “right to keep and bear arms” is rightfully applied to the “militia” – is the central holding of the case, and what is referred to as the “collective right” interpretation of the 2nd Amendment.

    You both know this. Stop playing dumb just to try to save face. It’s unmanly.

    What has been “debated” since then was whether that ruling was correct. It has not been “debated” since then whether that was the holding in the case.

    juris,

    It didn’t establish the “collective rights” interpretation (good job, btw, at knowing the meaning of that incredibly common term) as the controlling precedent, but that was the reasoning that has been pointed to ever since by courts upholding the “collective rights” interpretation.

    Which, once again, is a term that everybody on this thread knows the meaning of, knows the history of, knows the intellectual pedigree of, and really shouldn’t be pretending to be confused about.

  91. “I don’t see how “common-sense gun laws” necessarily runs against the Second Amendment. ”

    It has something to do with the fact that every last one of them exists for no other purpose than to interfere with the right to self-defense.

    -jcr

  92. From Findlawhttp://writ.news.findlaw.com/dorf/20011031.html

    One important Second Amendment precedent is the 1939 decision of United States v. Miller. There, the Supreme Court rejected a Second Amendment challenge to an indictment for possession of a sawed-off shotgun in violation of federal law.

    In a terse opinion, the Court concluded: “In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

    Most courts and many commentators have read Miller as officially adopting the collective right view of the Second Amendment – that is, one of the views set forth in the first or second model that the Fifth Circuit described in its opinion.

    But, hey, this “collective right” idea, it certainly had nothing to do with the Miller case, right?

    A google search on “collective right gun control” produces 171,000 hits. So far, every single of them identified “collective right” as referring to the idea that the 2nd Amendment guarantees the right to bear arms to the militia, and every single one of them describes how the reasoning is traced back to Miller.

  93. RC,

    I’m not even arguing that the “collective right” interpretation of Miller – the one that defined gun control jurisprudence for seventy years, and is now being challenged – is the right interpretation of that holding.

    But facts are facts: that is the history of gun-regulation law. The Miller decision tied the right to bear arms to the militia, rather than the particular desires of individuals, and the case law since then has been based on the idea that the 2nd Amendment created a collective right.

  94. Joe failed to cite a source.

    Oh well.

  95. …and every single one of them describes how the reasoning is traced back to Miller.

    Only for those who torture US v. Miller long enough to kinda-sorta see a “collective right” if they squint right.

  96. “There was something wrong with her voice… there was too much raw passion in it.”

    Nothing wrong with raw passion. What HIllary projects though, is lust for power.

    -jcr

  97. Whoops. Hadn’t refreshed to see that joe had posted something new.

    My bad.

  98. mediageek,

    Only for those who torture US v. Miller long enough to kinda-sorta see a “collective right” if they squint right. Whether you like it or not, that category includes virtually the entirety of the American judiciary between 1940 and 2000.

    Maybe you think they’re all wrong; fine. I do, too. Regardless, props for not feigning confusion.

  99. comment 100 snypa

  100. Joe-

    The 5th Circuit court ruled the 2nd to be an individual right in the Emerson case.

    As I understand it, it was assumed that every individual had a right to arms, and that this was set forth even in English common law.

    From that perspective, it seems to me that the “collective rights” interpretation is a recent development, and one that was constructed on shoddy intellectualism.

  101. joe,

    the fact that I provided a link to the text of US v Miller probably indicates that I legitimately believe that said text does not clearly indicate a collective right. You can think I’m stupid for that holding that opinion if you want, but I can assure you, that I read the opinion today, and I believe that it is ambiguous on that question. I too am not arguing what I want the interpretation of the second amendment to be. I honestly believe that Us v Miller does not say anything affirmative about this issue, and I encourage people to read the actual language of the case and come to their own conclusions. I’m going contradancing now, so I cannot continue to make my point, and I will have to allow the language used in the case to make it for me.

  102. joe sez good job, btw, at knowing the meaning of that incredibly common term

    Funny but no other right seems to be treated as a “collective right”. Until you start drinking the progressive kool-aid – then everything is for the common good or it can’t be good at all.

    Oh, and Mike Dorf fits in the extremely mendacious group. You’re still in the ignorant column.

    but that was the reasoning that has been pointed to ever since by courts upholding the “collective rights” interpretation.

    Let the scales fall from your eyes oh searcher of facts… hier

    Pay particular attention to the 9th Circus’ extraordinary pratfall (in Hickman) in getting nearly ALL of the facts about Miller wrong.

  103. RC, are you taking stupid pills from joe?

    That was my point.

    Sorry, missed the reference to “wrongway” 9th. My bad.

    The Miller decision tied the right to bear arms to the militia, rather than the particular desires of individuals,

    Umm, not really. There is not one syllable in Miller to the effect that only certain people or organizations are protected by the 2A. Miller is a case about whether certain weapons are protected by the 2A, not whether certain persons are.

    and the case law since then has been based on the idea that the 2nd Amendment created a collective right.

    Not really, joe. The whole notion of a “collective right” interpretation of the 2A is a relatively late entrant, and there is plenty of language, albeit mostly dicta, that is not consistent with that interpretation. Check the Emerson opinion for a run-down.

    The fact that one faction of the legal academy supported the collective right interpretation for a few decades hardly makes it the predominant strand in the case law.

  104. RC sez My bad.

    [pay attention to this part joe…]

    No problem RC.

  105. There are currently three people who are likely to become president. Obama, Clinton, and McCain. Of the three, Obama is clearly the most libertarian, taken as a whole.

    R C Dean-The “collective right” interpretation dates from at least the 1930’s, and has more or less consistantly been the Supreme Court’s position since then. It’s not THAT new.

  106. Obama just got endorsed by that civil libertarian of all civil libertarians: Daniel Ortega of Nicauragua.

    This is a no shitter. Communist Dictator Ortega enthusiastically endorsed Obama for President on Wednesday per the AP.

    Link up at http://www.libertarianrepublican.blospot.com

  107. I’m so confused.
    Will somebody please tell me what to think?

    Regards,
    The Electorate

  108. “I don’t see how “common-sense gun laws” necessarily runs against the Second Amendment. ”

    It has something to do with the fact that every last one of them exists for no other purpose than to interfere with the right to self-defense.

    Effect, but not purpose, unless you think they’re all drafted by sadists who just want to promote violence for the hell of it.

  109. The “collective right” interpretation dates from at least the 1930’s, and has more or less consistantly been the Supreme Court’s position since then. It’s not THAT new.

    Cites, please.

    My recollection is that the only references by the Supreme Court to the 2A in the last several decades have been in dicta, listing it alongside the other amendments that have been incorporated and apply to the states.

    And, for cryin’ out loud, Miller doesn’t support a collective right. It is, at best, silent on the subject. It doesn’t talk at all about whether individuals or states have the right – not in the holding, not in dicta. It is a case about trying to define the “arms” referred to in the 2A.

    If you really try to squeeze anything about collective v. individual rights out of Miller, you basically have a reference to individuals supplying their own weapons. Trying to hold that “the militia is people who own their own guns” means “individuals have no right to keep and bear arms” is a complete non sequitur.

    You shouldn’t try to read too much into issues not addressed in a case, but if the Miller court thought that the defendant wasn’t covered by the 2A at all, being an individual, why did they discuss whether his weapon was protected by the 2A? If anything, the Miller court assumed Miller was covered, otherwise the discussion about “which weapons” is unnecessary and beside the point.

  110. And he showed how much he respects civil liberties when he voted to reauthorize the PATRIOT Act.

    Prodigy isn’t fooled.

  111. What is a “collective right”? Nobody can explain this to me. Who possesses such a right? If the right is nullified, who has standing to sue in a court? Since the States and Federal government have plenary power to organize militias and draft citizens into them, what could possibly prevent state militia members from keeping guns on duty? Why would this right even exist? How can a group of citizens possess a right in the collective, and not possess the right as individuals? If the state of Texas created a well regulated citizen militia consisting of all citizens, and armed those citizens with machine guns, would they have the right to keep and bear arms in the collective? Or would some other clever legal opinion render the collective right meaningless? A collective right is legal nonsense, mumbo jumbo intended to destroy a part of the Constitution through the personal opinion of judges.

  112. So here’s a question: Why can’t the LP nominate Ron Paul even if Paul doesn’t want their nomination? Surely having Paul’s name on the ballot would get the LP more votes than ever.

  113. I’ve never understood this collective right stuff either. Rights are enumerated when there’s a risk that a government could take them away. If a state or the federal government organizes an armed militia, there’s no risk that the militia will be deprived of its right to bear arms.

    Obama’s being politically pragmatic by hedging on the gun issue and I don’t think it’s cause for outrage. He’s not a libertarian, but he has some undeniably right positions on due process, torture, transparency — the “classical liberal” issues that ought to be common ground.

  114. Well according to his wife, Obama’s the only one that can fix our ‘souls’. Thanks but no thanks. I somehow doubt, though, that the disdain for religion in politics we see for the right will be directed at this messianic cluster F.

  115. Auberon, why should the LP nominate Ron Paul? They already have two or three likely candidates who are much better than Paul, and won’t embarrass the Party: Wayne Root, Bob Barr, and Mike Jingozian.

    Paul would stain the LP with an aura of Larouchie-ism.

  116. Franklin, the Patriot Act was a mixed bag: Definitely NOT clear cut from a libertarian perspective.

    Most of the provisions in it were designed to crack down on Middle Easterners WHO OVERSTAYE THEIR VISAS!!! They were NOT US Citizens.

    Call me crazy, but I have no sympathy for some Radical Muslim “student” at a local public library perusing the internet for plans to build a dirty bomb.

  117. I do not want to plug my own Blog – Libertarian Republican, (where this is posted), so I will plug Rightwingnews.com

    You all simply MUST see this. There’s a spoof video, obviously produced by the Obama campaign of Hillary Clinton.

    It’s vintage 1970s cheezy. Brady Bunch meets Osmond Family. Funniest video of the entire campaign.

  118. Of course you want to plug your blog, you poorly-mustachioed cocksucker.

    This talk of case law reminded me of Gulliver’s Travels:

    I said, “there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself. Now, in this case, I, who am the right owner, lie under two great disadvantages: first, my lawyer, being practised almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which is an unnatural office he always attempts with great awkwardness, if not with ill-will. The second disadvantage is, that my lawyer must proceed with great caution, or else he will be reprimanded by the judges, and abhorred by his brethren, as one that would lessen the practice of the law. And therefore I have but two methods to preserve my cow. The first is, to gain over my adversary’s lawyer with a double fee, who will then betray his client by insinuating that he hath justice on his side. The second way is for my lawyer to make my cause appear as unjust as he can, by allowing the cow to belong to my adversary: and this, if it be skilfully done, will certainly bespeak the favour of the bench. Now your honour is to know, that these judges are persons appointed to decide all controversies of property, as well as for the trial of criminals, and picked out from the most dexterous lawyers, who are grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing any thing unbecoming their nature or their office.

    “It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.

    “In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious, in dwelling upon all circumstances which are not to the purpose. For instance, in the case already mentioned; they never desire to know what claim or title my adversary has to my cow; but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she was milked at home or abroad; what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue.

  119. Mike Jingozian? Ha ha ha, oh my word Rittberg, you slay me every time.

  120. What is a “collective right”?

    joe, bless his soul, already pointed out that it is a fiction created to terminate the 2nd Amdt without bothering with that Article 5 stuff. It “originates” in Miller about like original sin does in Adam – sans the fig leaf.

  121. Why can’t the LP nominate Ron Paul even if Paul doesn’t want their nomination?

    The states wouldn’t allow his name to appear on the ballot unless he accepts the nomination.

  122. I’m not an Obama fan, but in many respects he would be better than McCain. Having said that, I’m still going to throw my vote away this year.

    Also, in regards to guns I would take this position: The Constitution allows for no federal restrictions on guns. However, it does not prevent State and local restrictions on firearms as it only applies to Congress. I wouldn’t argue that the 14th amendment should make it apply to States. Different people in different parts of the country have different views about guns. They should be able to decide what, if any, restrictions they want.

    Bill
    ps. I’m pimping for my blog. Does anyone want to join as a contributor or does anyone want to exchange links or rss feeds?

  123. juris,

    Once again, pointing out that you, and some other people, don’t find the interpretation that the courts have given to Miller convincing is not the same thing as demonstrating that they have not given it that interpretation. My statement about how Miller was used to establish a “collective rights” doctrine was descriptive, not prescriptive.

    RC,it was not one faction of the legal academy That was the mainstream position, held by most judges for decades. And, once again, since it seems to be an oft-misunderstood point: this is not a statement about what should be, but what is. If the SCOTUS rules against DC, and establishes an individual-rights interpretation, that will be the establishment of a new precedent, based on a new standard. That’s why it’s such an important case, and is receiving so much attention.

    Kevin P.,

    The “Collective Right” interpretation means that the 2nd Amendment is to read like the 9th and 10th, which protect the “rights” of the states and the People – both of which are collectives – against federal intrusion.

  124. @ Bill Cooke, 4:03 pm:

    A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

    Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC’s theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC’s argument is contrary to the constitutional plan for federal militia supremacy.

    Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.

    Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.

    The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.

    from the Volokh Conspiracy

  125. joe sez My statement about how Miller was used to establish a “collective rights” doctrine was descriptive

    You didn’t read the Denning article, did you? You do agree that Miller itself didn’t establish (let alone USE the actual words) “collective right”. So, the question is what case DID establish that. Not really Cases or Tot, although they did some interesting twisting of Miller. I think you have to come all the way down to Hickman and the beloved 9th to get the lack of standing NECESSARY to obliterate any possibility of the right applying to individuals. Joe, you will note that Hickman is not the law of the land (‘cept in the 9th Circuit), and it wasn’t decided back in the ’30s. Oh, and about what a “collective right interpretation” means, has nothing to do with the 9th or 10th Amdts. What was it you said, over 170K google hits on gun control and collective right?

    So, in your own words

    Stop playing dumb just to try to save face. It’s unmanly.

  126. That’s lame, juris.

    The history of doctrines established through case laws doesn’t begin when a doctrine is expressed in its complete and final form, but when the first rulings that eventually led to that outcome were handed down. You’ve obviously gone well beyond arguing in good faith if you’re pretending not to know this.

    Oh, and about what a “collective right interpretation” means, has nothing to do with the 9th or 10th Amdts. Once again, I don’t think you’re actually this dumb, I think you’re decided that slaying the dragon is more important that honesty. You are actually going to claim that the collective rights reading of the 2nd amendment – that it is about reserving a power to the states and denying the federal government the right to interfere with that power – has nothing to do with the 9th or 10th amendments?

    OK. Whatever.

  127. juris, tell us what the “collective right” reading of the 2nd Amendment is.

    Seriously, I’m wondering if you even know at this point, other than “it’s teh evil.”

  128. joe sez The history of doctrines established through case laws doesn’t begin when a doctrine is expressed in its complete and final form, but when the first rulings that eventually led to that outcome were handed down.

    Separate but equal, joe? Ring a bell? The actual words used in Plessey?

    Collective right has nothing to do with reserving to the states and/or people, respectively, and you damn well can’t quote anything to that effect.

    The collective right myth is that the 2nd does NOT create a right which can be exercised by an individual, e.g. Heller. The argument is that the right applies to the people of the state as a body, such that say California could sue the U.S. for interfering with the California militia. The two circuits that have articulated this position are the 6th and 9th. The 5th of course opposed this in Emerson, though not with any substantive result. SCotUS has NEVER endorsed the collective right interpretation, nor did Miller honestly lay the foundation. As Denning points out, the Circuit courts largely created it.

    Really, dude, give it a rest.

  129. Yes, I know that Plessey used the phrase “separate but equal.” Was there a point that bit of snark was supposed to convey?

    I also know that both the phrase and concept “affirmative action” do not appear in Brown vs. Board, but that its holding about the government having a duty to undo the segregation in society – not just in the schools, but to desegregate the schools as a method of desegregating society – was drawn on in later cases which did utilize the phrase and concept of “affirmative action.”

    Just like how the foundation “collective right” reading of the Second Amendment – not the phase itself, not even the idea in its modern form, but the position that evolved into that idea – was laid down in the Miller decision’s use of the “militia weapon” standard. Whether you like the fact that the subsequent rulings drew on it that way or not.

    Collective right has nothing to do with reserving to the states and/or people, respectively, and you damn well can’t quote anything to that effect.

    followed immediately by

  130. …followed immediately by:

    the argument is that the right applies to the people of the state as a body, such that say California could sue the U.S. for interfering with the California militia.

    So, genius who must lecture me because I’m so obviously losing this argument, does the collective right reading of the Second Amendment “have nothing to do with reserving powers to the states/people,” or does it restrict how the federal government’s power to interfere with militias at the state level?

    Because in case you didn’t notice, those are two mutually-contradictory statements.

  131. At a certain age, juris, most people start to realize that political differences are not, in fact, a consequence of everyone else being dumber than you.

  132. but the position that evolved into that idea – was laid down in the Miller decision’s use of the “militia weapon” standard.

    joe, that’s like saying blue evolved from orange. Nothing in the actual language of Miller justifies the stupidity that has ensued and claimed ‘lineage’. Would you please read the Denning article, he says it all there much more clearly than I obviously am.

    Affirmative action has it’s own jurisprudential history at SCotUS level (not just based on Brown), unlike the collective right theory of the 2nd (until now).

    And joe, no one knows what effect the “collective right 2nd” has on state militia control because THAT has never been tested in the case law, and given Perpich is damned unlikely ever to be tested. What the collective right interpretation evolved from was the desire to obliterate the right of the individual without amending the Constitution. Stevens v. U.S. gives some pretty plain language from the 6th Circuit that the court just couldn’t abide an individual actually having such a right (as opposed to finding say that the prohibition on Stevens, a convicted felon, was narrowly tailored, etc.).

  133. joe, let’s put this to rest this way. No case has ever said, the federal govt is interfering with the state militia and violating the 2nd. That THEORY has been offered for why the 2nd EXISTS but does NOT apply to individuals – who actually HAVE challenged gun control laws. You see the problem joe – it’s an explanation for a question that nobody asked. The disingenuity of that ought to be fairly obvious, political differences or not.

  134. I read the Denning article. I’ve answered this about half a dozen times already.

    Last chance, juris. You’re either going to get it this time, or not:

    Nothing in the actual language of Miller justifies the stupidity that has ensued and claimed ‘lineage’.

    IT DOESN’T MATTER WHETHER YOU THINK THE SUBSEQUENT RULINGS WERE RIGHT TO READ MILLER THAT WAY. THEY DID READ IT THAT WAY; ERGO, MILLER PROVIDED THE FOUNDATION FOR THAT ARGUMENT.

    Do you see how “but they were wrong to read it that way” misses the point? I’m talking about whether history happened or not, not whether it would have been better for it to happen in some different way. I’m not talking about whether the last half-century of gun control jursiprudence is based on a GOOD READING of the Miller decision, or whether it is based on a MISREADING of the Miller decision.

    Now, we’re at what a literature professor would call a “crisis point” in the plot; you can either get what I just wrote, and acknowledge that “The courts shouldn’t have read Miller that way” is a different statement than “The courts didn’t read Miller that way,” or we’re done here.

    Do you get it? Do you understand that I’ve been talking about what actually happened, so that you’re points about what should have happened aren’t a rebuttal to what I’ve been saying? Do you get that?

  135. joe, several courts wrote down words, and said “we have these from on high”. You may bow down to that majestic invocation and not question it. I just bothered to read what Miller actually says, and no person could objectively conclude that what it said is what the 6th and 9th Circuits SAID it SAID. That’s my point joe – there’s no pony in there. It’s not what they actually READ joe, it’s what they INVENTED.

    Think of it like this. After Lopez, Congress re-enacted the Gun Free Schools law – but this time with the proper “commerce clause” incantation (which had been lacking according to SCotUS the first time around). Does that make it real – or are we just pretending that once the magic words have been uttered it’s real enough?

    Then again, you thought Henry Waxman HAD to have a hearing all because Clemens said he wanted one.

  136. Hey Bill Cooke, you live in Md? Did you run into my old buddy the Kosmik Kid during Ron Paul’s run for the roses?

    I’ll throw you a link if you want. Better buy some more bandwidth. 🙂

  137. Obama may be a “libertarian” in the ACLU interpretation of that word. But whatever gains might be had on the civil liberty side will be more than offset on the taxing and spending side. He will confiscate and tax beyond what any of us had heretofore imagined possible.

    At the end of the day, the economic policies will overwhelm the civil liberties policies. A financially enslaved population cannot be allowed to do whatever it pleases. Broadcasters will be forced to give free airtime to politicians. Doctors will be forced to attend patients based on whose political constituency they belong to. Drug companies will be subject to price controls. The housing crisis will mean more and more folks flooding the rental market, and so rent controls may be put in place. It will go on and on until we are basically Argentina.

  138. Yes, I live in the People’s Republic. Baltimore City to be exact. I didn’t run into your friend. I wasn’t too involved with the campaign due to work obligations. I gave about $100 bucks, wore a shirt, displayed a bumper sticker, wrote about him on my blog, and told my friends and family about Ron Paul.

    I’ll take the link. I need to sell a few books.
    Thanks.

    Bill

  139. Bill, Kos lives in Mt Airhead and he was the Meet Up guy over there. Chartered a bus for fifty of his closest friends to go to the RP rally in Philly.

    BTW, I think Jesse lives in or around Baltimore.

  140. It will go on and on until we are basically Argentina

    Ain’t you just a beacon of hope……

    Actually, you’re probably right. And Argentina has great Malbec (red wine). Heard the beef isn’t as great as the reputation though.

  141. Nope, we’re done here. Yet another tirade about the quality of the subsequent readings of Miller.

    You’re determined to misunderstand what I’m saying, so I’m done talking to you.

    buh bye.

  142. I want anyone who has misused federal office for personal gain, or for political gain, or who has fraudulently engaged in war profiteering, or who has lied to Congress, or shown contempt for Congress, or concealed wrongdoing, or obstructed investigations, or speciously asserted a national security privilege with no basis, or any of the rest of it, to be quite simply crucified.

    What the fuck?!! Congress is the one institution that should be shown contempt…early and often. Oh, and let me guess, fluffy–as long as that congress is controlled by Democrats?

    If the only thing Obama does is increase transparency of the federal government, his presidency would be beneficial.

    Christopher. No, Obama’s presidency will be beneficial if the ONLY thing he does is increase the transparency of the Federal Government. Subtle distinction, but an important one.

  143. Joe is right on Miller. It doesn’t matter if the Supreme Court “should” have read it that way; they DO read it that way, and that’s all that matters.

    Vic Massad-Total government spending in an Obama administration will probably be no higher than total government spending in a McCain administration. He’ll just spend more on domestic health care and less on the military. And those are the choices (well, assuming Hillary doesn’t pull it out).

    A vote for president is, for all intents and purposes, a binary one. The Democratic candidate and the Republican one. Choose the one you like the most, or, barring that, choose the one you hate the least. Picking a third party candidate who is guaranteed to lose is choosing to say “they both suck EQUALLY”. Even if Paul ran as a third party candidate, his performance (even in open primary states where indies could vote) in the Republican primaries shows he can’t win. So, Obama (or Clinton) or McCain. Pick one. Even for a die hard Libertarian, when presented with that choice, I think they must conclude that, on the whole, Obama is clearly the best of the two (or three).

    Now, if it ends up being Clinton vs. McCain, that’s a whole different argument. Trying to argue for Clinton is a whole lot tougher than trying to argue for Obama, although McCain is still very, very bad.

  144. I thought Obama had a libertarian streak when I started reading his latest book.Thought I was wrong by the time I finished it.Knew I was wrong and that he is classic tax and overspend,nanny state politician after reviewing his record and rhetoric

  145. Libertarian.

    Civil libertarian.

    Two different terms. Two different meanings.

  146. Senator Obama states that cities have the right to impose their own handgun bans.

    Does he also believe cities can pass their own racial segregation laws?

  147. A google search on “collective right gun control” produces 171,000 hits. So far, every single of them identified “collective right” as referring to the idea that the 2nd Amendment guarantees the right to bear arms to the militia, and every single one of them describes how the reasoning is traced back to Miller.

    I suppose they would, given the paucity of other sources for the idea. You certainly can’t find it in the writings of those who signed the Declaration or the Constitution, nor in Supreme Court cases that followed. Arguing that one SCOTUS case established a precedent found nowhere else isn’t the best way to win the “collective right is the only reasonable interpretation” debate.

    I will agree with joe that various courts have used it to rule against gun rights.

    But it doesn’t make as much difference as you think. Given that forty-four of the fifty states have a state constitutional right to keep and bear arms, it’s obvious that the reasonable way to provide for a state militia is to guarantee an individual right.

    Now that SCOTUS is poised to rule in an unequivocal Second Amendment case, we’ll see what they think c. 2008.

    As I understand it, it was assumed that every individual had a right to arms, and that this was set forth even in English common law.

    Sort of true. It was an individual right, but Catholics were excluded. Earlier than that bearing arms was an obligation, rather than a right.

    If the state of Texas created a well regulated citizen militia consisting of all citizens, and armed those citizens with machine guns, would they have the right to keep and bear arms in the collective?

    They’d still have an individual right. The Texas Constitution has an RKBA provision, as do the constitutions of 43 other states. Article 1, Section 23:

    Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

    A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.

    Now, if they’d only allow concealed carry on military bases…

    I haven’t read their brief yet, but another reason civilian RKBA is important is manufacturing capability. The military is expending enormous amounts of small arms ammo in Iraq, far beyond the usual government contractors’ ability to resupply. To replace the ammo they have let contracts to manufacturers who primarily supply cartridges to the civilian market, and whose capability to take up the slack wouldn’t exist were it not for the Second Amendment.

    As a result, we gun owners are paying higher prices for ammo, and making a contribution above what everyone is paying in taxes. But we aren’t bitching. Military families are paying a much higher amount.

    Senator Obama states that cities have the right to impose their own handgun bans. Does he also believe cities can pass their own racial segregation laws?

    No. Any policy that creates de-facto racial disparity is unconstitutional, except for the gun control loophole. It’s okay to discriminate on the basis of disarming the wrong people. For examples see the gun registration schemes of New York City and Los Angeles County. This response is Obama and ACLU approved.

  148. And, from the military officers’ brief:

    Moreover, private ownership of firearms makes for a more effective fighting force. Military recruits with previous firearms experience and training are generally better marksmen, and accordingly, better soldiers. In short, experience has taught that individual ownership of firearms is an indispensable element of national security.

    IOW: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

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