Guns

Counting to Five in D.C. v. Heller

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In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:

Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?…

That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable….

So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns] 

Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia….The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed….

[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.

Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns…they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms….

In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.

Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias.   

NEXT: The Right Kind of Gun Rights

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  1. I’m not clear on my Supreme Court history, but Clarence Thomas is the biggest douchebag to ever sit on the bench, right?

  2. I’ll repeat a question I asked in one of the other threads dealing with Heller:

    Typically speaking, are the questions the justices ask during oral arguments a good indicator of how they will rule?

  3. I believe I read somewhere that Clarence Thomas forces all of his staff members to read Atlas Shrugged.

  4. I am getting my hopes up. The cynic in me points out that my hopes have been dashed before.

  5. Actually, Thomas occasionally sounds like a libertarian. He’s best in his dissents. Which is true for most justices, it seems.

    What’s this business about top-two primaries, by the way?

  6. Typically speaking, are the questions the justices ask during oral arguments a good indicator of how they will rule?

    No particular knowlege here, but I have heard someplace in the past that the justices use their questioning period to indicate their viewpoints, kind of like obscure smoke signals or something. Don’t count on my word, but I have heard it someplace, not connected with DC v H

    I am getting my hopes up. The cynic in me points out that my hopes have been dashed before.

    I’m right there with you.

  7. Being a douchebag and being a libertarian are not mutually exclusive. You know who you are.

  8. Jonathan Hohensee,

    Obviously you’ve never heard of William Howard Taft.

  9. The framers wrote the Constitution using what was, for their place and time, clear language that they intended every citizen to be able to comprehend. It is not and never has been up to the Justices to explain and interpret the Constitution for us mere citizens. We the People are sovereign, and if we expect to remain so, each of us must make the effort to read and understand this fundamental law of the land.

    That said, in accepting a case that requires them to deal directly with the Second Amendment, the Justices have agreed to take the most closely watched English exam ever. It is up to us, We the People, to grade that exam. And I think the Justices know it.

  10. I also remain optomistic for some stupid reason. Even after Kelo. Stupid.

  11. On an earlier thread MikeP said that is was not just wrong to read the 2nd as a collective right, it was also unreasonable. Bullocks said I. Mike’s answer was that it may be reasonable to read the “arms” as militial arms it is not reasonable to read the “people” as state militias since the first amendment’s use of the people obviously doesn’t refer to “press organizations” and the like, but instead individuals. Bullocks again says I. The first amendment, if it were written like the 2nd, would read something like this “since a free press is very important, the right of people to free speech is protected.”

    So while I think the individual right reading of the 2nd is the MOST reasonable I still think its incorrect to label the collectivists reading as unreasonable. And that’s why it is sad this case will break down along ideological lines. There is no reason why a Souter could not see the individual right as the most reasonable, or that for Scalia to see the opposite. For our highest judges to have their legal analysis determined by the political alliances of the day is pathetic.

  12. That said, in accepting a case that requires them to deal directly with the Second Amendment, the Justices have agreed to take the most closely watched English exam ever. It is up to us, We the People, to grade that exam. And I think the Justices know it.

    That is either the thickest melodramatic way to put something really simple, or a thinly veiled death threat. ๐Ÿ˜‰

    As for biggest douche ever to sit on the bench…while Thomas is batshit crazy, biggest douche has to go to that guy who refused to speak to Felix Frankfurter the entire time they were on the court together just because F.F. was Jewish; it was either Van Devanter or McReynolds. I can’t remember. Come to think of it, they were kinda both douches, so either way…

  13. Clarence Thomas tends towards the most libertarian decisions on the court. He will probably write a concurrence that supports a stronger right than the majority.

    He usually doesn’t say much during oral arguments though. He lets the other justices do battle.

  14. For our highest judges to have their legal analysis determined by the political alliances of the day is pathetic.

    I think it works the other way around. The justices have individual political philosophies that guide their rulings, and also determine their political alliances.

    Count me in the unreasonably optimistic camp. I’ve been in this since 1968. I think we’re making progress, but it’s far from over.

  15. Actually, Thomas occasionally sounds like a libertarian. He’s best in his dissents. Which is true for most justices, it seems.

    Actually I find that his separate concurrences are sometimes awfully good.

    He sometimes seems to say, “I would change this law if I could.” But it’s only actually stupid (or immoral) not unconstitutional.

    I appreciate the fact that at least one of the Justices knows the difference.

  16. biggest douche has to go to that guy who refused to speak to Felix Frankfurter the entire time they were on the court together just because F.F. was Jewish; it was either Van Devanter or McReynolds.

    Elemenope, you’re thinking of McReynolds, though Van Devanter was also clearly antisemitic as well. And, refusing to speak to Jewish justices (I believe he was known for not speaking to Brandeis and Cardozo, but I wouldn’t be surprised if Frankfurter is on the list as well) was but one of his milder insults. It’s probably no surprise he was a big supporter of the racist Wilson and served as Wilson’s AG before Wilson appointed him to the Court. Overall, McReynolds has to rank near (if not at) the top of anyone’s list of biggest douches to ever serve on the court. The guy was a simply a miserable, disgusting person.

  17. I’m not clear on my Supreme Court history, but Clarence Thomas is the biggest douchebag to ever sit on the bench, right?

    Actually, if he’s the 5th vote in overturning the D.C. gun ban and asserting an individual right to keep and bear arms, I suspect tens of millions of gun owners and respecters of the Constitution will vehemently disagree with your assessment.

    The douchebags are the four who want to gut the Second Amendment, IMO.

  18. Mr. Nice Guy,

    You seem to disagree with deciding cases based on original intent, based on fundamental principals such as natural rights, and now even based on political beliefs.

    Just what do you think justices are supposed to decide on? Whether the first stoplight they hit the morning of the decision is red or green?

    LarryA is right. Because a decision appears to be determined according to political alliances does not mean that political alliances determined the decision. The decisions and the alliances have the same cause: the legal and political beliefs of the individual justices.

  19. I think they should decide cases based on the original meaning of the language of the text (Scalia calls this “textualism”). Scalia for example is not in his legal analysis a proponent of natural rights or law that I can tell. He’s a positivist that feels bound by the text itself. Because majorities passed it and that is what a democracy is all about…

    “The decisions and the alliances have the same cause: the legal and political beliefs of the individual justices.”

    Yes, but there is nothing inherent in believing in “natural rights”, or conservatism or liberalism that demands one to take position y or x on gun control. So my point is that the conservative or originalist or natural right judges are not ruling for gun control because their conservative/originialist/natural right philosophies logically demand it, but because they are Republicans and the Republican party currently supports gun owner rights (because like minded interest groups have aligned themselves with that party right now) and vice versa for the liberals on the court.

    100 years ago the GOP was the party of tariffs and the Dems were the party of free trade, the Dems were the party of religious fundamentalism (Jennins Bryan?) and the Republicans of freethinking, the GOP the party of civil rights, the Dems the party opposed. Our political parties would love to convince us they represent coherent ideologies, but they in reality seem to represent collections of interest group that have fallen together by historical accident as much as anything else. Our judges certainly should not be like that.

  20. You make good points. It is entirely possible — if not probable — that most if not all justices have beliefs built more on convenience than on principal and discover or invent the principal to justify the beliefs.

  21. Since MNG brought up reasonable.

    The 2nd seems most reasonably to be about the right to keep and bear arms for the purpose of having a strong militia.

    That means, it seems, that neither the individual nor the collective rights interpretations are quite right.

    It ain’t about self-protection, but protection of the “free state.”

    That means the militia, which is made up of individuals referred to collectively as “the people,” needs to keep and bear arms.

    This means that the important debate will be not about individual vs. collective right interpretations, but about the interpretation of “infringe” and “reasonable limitations” and the like.

  22. The problem with textualism is that the meaning of written language is under-determined by the text in isolation.

  23. NM-I see your point. But since I’m a fairly liberal guy (at least relative to a lot of folks on this site, where I work I’m one of the right-wing nut jobs believe it or not), I tend to think that where the text is under-determined (like “just compensation”) the rights at stake should be read broadly. And I think the 2nd Amendment is no “red-headed step child,” if there is a narrow way to read the right (it really only applies to state militias) or a broad way (it really applies to every individual), we should take the broad one. Believe it or not I like it when there are more as opposed to less areas that the government (the majority) cannot tell those who disagree with them what to do, thus my liking of reading whatever rights are in the text as broadly as reason allows…

  24. …you’re thinking of McReynolds, though Van Devanter was also clearly antisemitic as well. And, refusing to speak to Jewish justices…

    Thanks for the clarifying info. ๐Ÿ™‚

    The douchebags are the four who want to gut the Second Amendment.

    I hold out some (scant) hope that Souter and/or Breyer may be closet 2nd amendment guys. After all, the issue isn’t exactly a liberal litmus test, and neither of them are consistently liberal to begin with. (Lest we forget what “consistently liberal” means, re: Warren court.)

    I find that when I don’t have expectations, the only thing that can happen is a pleasant surprise. ๐Ÿ˜‰

  25. The problem with textualism is that the meaning of written language is under-determined by the text in isolation.

    You could mean many things, here. I’m not sure which one you desired to convey…

  26. MNG,

    I agree that the broad interpretation is the better way to go.

    FWIW, I am of the opinion that the 2nd needs to be read in the context of the 1st amendment…as, in essence, an extension of the right to assemble…making sure that it is clear that assembling with guns to protect the free state is included in the right to assemble and petition the government.

  27. lmnop,

    I meant the other thing, not that first one.

  28. I still fail to see why Clarence Thomas gets raked over the coals here. He’s one of only two justices who was on the side of the angels in all of Raich, Kelo, and Hamdi.

  29. Clarence Thomas is the biggest douchebag to ever sit on the bench, right?

    Not even close. Look up the asswipes who wrote the Korematsu, Dred Scott, and Kelo decisions.

    -jcr

  30. I still fail to see why Clarence Thomas gets raked over the coals here.

    I, for one, think he’s nuts because he treats the process of stare decisis like it was shat from the flaming mouth of Satan himself. Yeah, he occasionally comes down on the right side, but his reasoning rarely has anything to do with the actual process of law, respect for precedent, or knowledge of reality.

    That, in a judge, shares the shit out of me, regardless of his or her ideological leanings. Also, he’s creepy, in a “pube on a Coke” kind of way.

  31. Priapus-You make a good point (though I’m not sure what you thinking of by using Hamdi as an example here [here is wiki’s sum of Thomas’ opinion there: “Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit’s ruling, based on his view of the important security interests at stake and the President’s broad war-making powers.”]. Thomas has at times made some brave stands for liberty. But at other times he has been quite terrible, ruling as in Hamdi above, or to overrule Tinker in the Bong Hits 4 Jesus case, or in the euthanasia cases, etc. He also strikes me and a lot of people as being something a dick in “real life.”

    But I think it’s bizarre to think he’s the biggest douchebag that has ever been on the court. As noted above I like Scalia’s (avowed) judicial philosophy, but that man is probably a huge dick.

    If we go back in history Fred Vinson had some terrible opinions. And consider Taney (who wrote the majority in Dred Scott).

  32. Not even close. Look up the asswipes who wrote the Korematsu, Dred Scott, and Kelo decisions.

    You know, Taney completely slipped my mind when I was trying to think of the douchiest justice ever. But then again, wasn’t he on the court in Milligan? Doesn’t make up for Dred Scott by a long shot, but still.

  33. I’ve heard some oral arguments and Breyer comes off as a bit of a dick as well. And I’ve read that Douglas was one of the worst human beings in the judicial universe.

  34. Elemenope: I, for one, think he’s nuts because he treats the process of stare decisis like it was shat from the flaming mouth of Satan himself.

    That’s exactly what I like about him. He won’t stand by bad case law just because it’s “settled.”

  35. lmnope-

    Liberals were never all that big on stare decisis – until it came to preservation of THEIR favored rulings. Wickard, Brown, Roe – which of those showed respect to precedent?

    And what was more satanic – slavish devotion to Plessy, or pissing on stare decisis in Brown?

    For my money, Stevens is the biggest douche of the moment, probably Taney and McReynolds for all-time.

  36. Justice Thomas in Printz vs. US:
    http://www.law.cornell.edu/supct/html/95-1478.ZC1.html

    The Second Amendment similarly appears to contain an express limitation on the government’s authority. That Amendment provides: “[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.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [n.1] If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. [n.2] As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.”

  37. Liberals were never all that big on stare decisis – until it came to preservation of THEIR favored rulings. Wickard, Brown, Roe – which of those showed respect to precedent?

    Roe directly descends from Griswold, which I think is your better pick for complaining about liberals making up law from the bench. Brown follows directly from Korematsu — Race is a suspect class, and educational segregation fails the test; Korematsu was not available as a precedent in Plessy. Wickard is a true reversal, but no less than the court’s double (conservative) reversal in Lopez.

    And I never claimed that liberal justices were angels.

    And what was more satanic – slavish devotion to Plessy, or pissing on stare decisis in Brown?

    I said *scary*, not *bad*. Like I said, sometimes, despite himself, Thomas gets it right on the merits. In 1954, the court saying “y’know, fuck it: Integrate the schools” was damn scary too. Didn’t make it *bad*, per se, but scary coming as it was from the bench and not the legislature.

    For my money, Stevens is the biggest douche of the moment, probably Taney and McReynolds for all-time.

    Besides Kelo, which is the current liberal embarrassment, I think that Thomas has actually amassed the more obnoxious voting record… Particularly in supporting the fed over prisoner’s habeas rights and supporting school admin over free speech.

  38. I’m not clear on my Supreme Court history, but Clarence Thomas is the biggest douchebag to ever sit on the bench, right?

    No, Clarence Thomas is one of the most interesting judges (and intelligent) to sit on the court in a very, very long time.

    I remember the first time I was personally impressed by Thomas. He was speaking in front of a group of young journalism majors about constitutional issues. Repeatedly (as is their wont) the young, fresh-faced journalism students kept asking him the same basic question, but worded differently each time:

    “So like, what if there’s something that might be protected by the constitution, but you might feel that it’s wrong to uphold it…and stuff?”

    All of this was during the height of the MSM agreement on tobacco debates. Anyhoo, Thomas attempted, in several different ways to address these similar questions in a scholarly way. After still getting the question (worded slightly differently) in spite of delivering his politic, intelligent and sound answer, he finally slapped his notes on the podium and said something (I’m paraphrasing) that was very much to the effect of:

    Thomas, showing overt signs of exasperation: *sigh* “Ok, we have this document. And it’s called the Constitution. And we as the sitting judges on the court use this document as a kind of guide to help us figure out how we’re going to rule on certain cases. We don’t rule on our feelings or our emotions, we refer to this document when we make our decisions”

  39. Elemenope: “I, for one, think he’s nuts because he treats the process of stare decisis like it was shat from the flaming mouth of Satan himself. Yeah, he occasionally comes down on the right side, but his reasoning rarely has anything to do with the actual process of law, respect for precedent, or knowledge of reality.”

    The only times I’ve read Thomas criticizing precedent was when he felt that that precedent was incorrect. As a justice on the highest court in the land, he has the power to overrule precedent, so this should not be an issue. If there was a precedent that forced the court to hold that there is no right to free speech, would you want it upheld?

    What does more to dishonor and disrespect precedent and the process of law is when judges take prior precedent and apply it to unlike situations, or distinguish cases unnecessarily in order to get their way.

    juris imprudent: Roe v. Wade was based on precedent set in Griswold v. Connecticut.

    Elemenope: I’m sorry, but I’ve read a lot of Thomas in class this year and I have only disagreed with him once. And he eventually voted to overrule the one I disagreed with in a later case. His dissent in Hamdi aside, his record is largely pro-freedom.

  40. elemenope,

    Others have said similar things, but I think of Thomas’ view of stare decisis like physics of math. You can build on other people’s works, but, you should be able to start from scratch and prove whatever you need to prove. The judicial version is the same. If you start over from just the constitution and common law, you ought to reach the same point as the stare decisis decision. If you dont, either you did something wrong or the precident is wrong. Stare decisis is only a good thing when the original decision is correct. Which means you never really need it in the first place.

    And for those that say that radically overturning centuries of decisions would cause chaos, I have two words for you: Hail Eris!

  41. robc’s Thomas-Scalia rule:

    When Thomas and Scalia disagree, Thomas is always right.

  42. Roe directly descends from Griswold

    Not as a matter of stare decisis, though I will grant you that Griswold is a piece of work in and of itself. I could’ve accepted them basing the damn result on the 9th Amdt, questionable as that might be, rather than on penumbras, etc.

    Brown follows directly from Korematsu

    What on earth do you think you are talking about? Korematsu was about rounding up Japanese-Americans and holding them in internment camps. Definitely separate, but hardly equal. That leads to Gitmo, military tribunals, etc. – not desegregated schools.

    Wickard is a true reversal

    Are you posting drunk or something? Wickard was the culmination of New Deal jurisprudence. Lopez attempted to put a bound on commerce clause power – which Raich by the way thoroughly destroyed (and affirmed Wickard). And WHO authored Raich? Douchebag Stevens. And Thomas’ dissent in Raich is unanswerable.

    Thomas has actually amassed the more obnoxious voting record…

    Certainly if you find limited [federal] govt to be obnoxious.

  43. One more Thomas thing – someone mentioned euthanasia up above. If you read his concurring opinion in Oregon, its pretty clear he only took the position he did in order to pile on the Raich decision. He used Raich as precident in Oregon and blasted the authors of Raich for not following stare decisis. Heck, it was only a month old or so and they were already backing away from it. I thought it was brilliant on his part.

  44. “No, Clarence Thomas is one of the most interesting judges (and intelligent) to sit on the court in a very, very long time.”

    Indeed.

    I have heard that he considers FDR’s “New Deal” to be unconstitutional.

    And he’s exactly right about that.

  45. Roe v. Wade was based on precedent set in Griswold v. Connecticut.

    Yes, it was an extension of the Griswold precedent.

    Brown was a direct challenge to the precendent of Plessy. If you hold stare decisis to be sacrosanct, Plessy was settled law. Liberals [quite rightly] had no love for stare decisis.

    See the difference?

    The value of stare decisis is in conserving the existing body of law, without resorting to first principles. For that, it is quite handy. But it retards righting wrongs embodied in the law.

  46. Just to add, both Griswold and it’s progeny Roe, overturned state law – again, not exactly respectful of stare decisis OR deferential to the legislative branch.

  47. What on earth do you think you are talking about? Korematsu was about rounding up Japanese-Americans and holding them in internment camps. Definitely separate, but hardly equal. That leads to Gitmo, military tribunals, etc. – not desegregated schools.

    Not drunk….:)

    Korematsu, whatever its defects, established the strict scrutiny test for governmental regulation infringing upon a vested right against a class of person. Thus, Brown, which talks about education as a vested right, cannot be denied on account of race, a suspect class, without compelling state interest (which is obviously absent). That’s how a liberal would defend the case as stemming from prior law, anywho.

    Wickard was a nail in the coffin for a particular interpretation, and then stood for sixty years. Lopez was a reversal of Wickard. I agree that Lopez was the better reading of the commerce clause, but the argument is not about who was right or wrong, but rather which side relied on stare decisis more.

    Point is, neither side’s hands are clean, but Thomas is very, very unclean in this regard.

  48. Korematsu, whatever its defects

    Damning with faint praise? Hey, that Dred Scott decision wasn’t ALL bad, was it?

    C’mon, Korematsu was all about papering over naked prejudice. Doesn’t matter how much the ex-Klansman tried to pretty up the language, nor was the ‘scrutiny’ all that ‘strict’. In which case those words do not possess the power you would otherwise ascribe to them.

  49. Being a douchebag and being a libertarian are not mutually exclusive. You know who you are.

    Heyyyyyyyy evvvvvverybodddy, how are you? *hic*

  50. Went off and re-read Brown. A lot of silly language to claim that things are different now (1954) – rather then just saying the racist bastards of 1896 that gave us Plessy were wrong (wrong then and still wrong now).

    Sometimes you have to wonder why plain, simple language isn’t enough. Oh, that’s right – this thread was about not being able to parse “the right of the people”…

  51. “The 2nd seems most reasonably to be about the right to keep and bear arms for the purpose of having a strong militia. ”

    Good grief, NM, your silliness is getting old!

  52. robc’s Thomas-Scalia rule:

    When Thomas and Scalia disagree, Thomas is always right.

    Actually, even when Thomas and Scalia agree (which is frequently) they are coming to the conclusions for different reasons.

    Or at least that’s the impression I get from his separate opinions.

  53. “On an earlier thread MikeP said that is was not just wrong to read the 2nd as a collective right, it was also unreasonable.”

    Indeed it is.

    Individuals have rights and governments have powers.

    There are no “collective” rights to begin with.

    Samuel Adams, of Massachusetts:

    “The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” — Massachusetts` U.S. Constitution ratification convention, 1788

  54. NM–I tend to avoid the gun threads, so if this has already been said, please forgive.

    The collective duty of a militia is not worth much without an individual right to bear arms. You can’t have the 1st listed component in the Amendment without the 2nd component.

    The framers could have put in a better justification for the right, such as defense of the home, but they most likely thought that the 3rd, 4th and 9th handled that scenario and considering what the country just came out of, was a distant 2nd (no pun) in terms of importance.

  55. JW,

    We are, essentially, in agreement.

    If you look at the textual history of the 2nd, the topic under consideration for the whole debate was militia…which was defined as the citizenry. The final version seems to say that the people have the right to keep arms so that they can bear arms to protect the free state from threats internal or external. And the government can not take steps to infringe that right, since in context, these guys saw the government as one of the primary potential threats to the free state.

    That is what, imho, the second was about and my interpretation is pretty mainstream.

    The right to own arms to defend oneself and one’s family is not expressly included in the Bill of Rights. The topic doesn’t seem to have come up. That doesn’t mean that right is not covered by the 9th & 10th.

    Wayne,
    On this issue, your inability to discuss things like an adult is tiresome.

    The language of the second is ambiguous enough to make its meaning debatable. Interpretation of it requires examination of the context under which it was written. That context strongly favors a “its about militia” reading, imho. That is pretty much the standard reading of the 2nd among scholars (you know that, you even linked me to an article at guncite which says as much).

    If you don’t want to consider others opinions, don’t get involved in discussion boards.

  56. Historically, the goal of firearms bans has always been to keep “the wrong sort of people” ( read, racial minorities ) from possessing guns. “Cities with a high incidence of violence” or “urban overcrowding” being able to prohibit firearms is just modern code for the same racist claptrap. Everybody knows who lives in THESE cities and whom they are talking about.

    Unfortunately, some of it comes from black leaders, who seem to have a very poor opinion of those they “lead”. Not to mention the “White man’s burden” inplication that everyone should give up their second amendment rights just because minority males might misuse them.

  57. Gilbert Martin,

    There are no “collective” rights to begin with.

    That is a political position, not an axiom.

    the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    It is hard for an individual to assemble (or associated for that matter). The right doesn’t even make sense until you have groups of people acting in concert.

  58. That is what, imho, the second was about and my interpretation is pretty mainstream.

    Well, this is what you get when you design through a committee. Debates over commas. ๐Ÿ˜‰

  59. I’m not clear on my Supreme Court history, but Clarence Thomas is the biggest douchebag to ever sit on the bench, right?

    Now I dunno about all Justices in history, but looking at just the current crop, for my money Scalia is the biggest douche sitting on the court right now.

    He makes it obvious that his political preferences dictate how he will rule (as was evidenced in the Raich case).

    He also has no moral center. He has been giving speeches lately defending torture with the fucking Jack Bauer/24 rationale. He also told the BBC that he believes it is “absurd” to think that the government can’t torture to get info and he doesn’t believe that judges should decide about “human rights, torture, gay rights, and abortion.”

    I may not always agree with Thomas, but he has been rather consistent. Scalia on the other hand is nothing but a political tool and a flawed human being.

  60. JW,

    Indeed.
    Committee writing is a very tortuous process.

    It is amazing that the founding documents are as clear as they are.

    I, fwiw, think this earlier version was better.

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

    The NM constitution does a pretty good job too.

    No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

    Gun rights, like most things, are a local/state level issue. The DC situation is odd due to DC’s relationship to the federal government.

  61. The interesting task the court will have is describing why DC’s gun laws are unreasonable infringements of the 2nd, and defining a workable test for when similar laws cross the line from regulation into infringement.

    I realize, saying that, that many around here see “regulation” and “infringement” as the same thing. I am not so sure they are logically equivalent. Gun registration, for instance, doesn’t seem to infringe the right to keep or bear arms.

  62. I would not be terribly surprised if Ruth B. Ginsburg supports the idea of the Second Amendment guaranteeing (not granting, of course,) an individual right. She was part of the majority in Verdugo-Urdiguez(sp) that listed the Second Amendment, among others, as an individual right guarantee.

  63. Kent Horton makes a good point. In fact it is possible that all the justices will for the first time actually educate themselves on this issue and that we’ll be pleasantly surprised.

    Furthermore, those expecting their hopes to be dashed should hope for a 9-0 decision. That way even dashed hopes still leave room for a 7-2 beyond-question decision or a 5-4 bare-majority decision.

    If you hope for 5-4, you leave yourself no room between disappointment and a bad decision.

  64. “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    “It is hard for an individual to assemble (or associated for that matter). The right doesn’t even make sense until you have groups of people acting in concert.”

    Wrong.

    The right is an individual one of each person to decide to join (or start) any particularly assembly or not. The assembled group is the collective RESULT – it is not a collective RIGHT.

  65. Gilbert,

    The right is an individual one of each person to decide to join (or start) any particularly assembly or not. The assembled group is the collective RESULT – it is not a collective RIGHT.

    Wrong.

    The right to assembly involves an activity (think speech) that requires more than an individual if it is to take place.

    If you think about how the government might infringe upon that right, they would ban the activity and would be infringing upon the rights of the group of individuals involved in that activity.

    How would the government enforce a law against assembly against an individual?

  66. Cop: Hey buddy, don’t you know you can’t assemble here?

    Loner: I am standing, not assembling.

    vs.

    Cop: Hey you two, don’t you know you can’t assemble here?

    Duo: We can according to the 1st amendment to the constitution, you are infringing upon OUR rights.

  67. Gilbert,

    The problems with your formulation are compounded when you read more carefully.

    The right is an individual one of each person to decide to join (or start) any particularly assembly or not.

    You do not have a right to join my group or any particular assemble unless they agree to your inclusion. The group has a right to set the conditions for membership.

    Like all rights, the group’s right to exclude you may be subject to certain limitations, but the basic principle is well established.

    Now, you do (or should…a message some unions don’t get) have the right NOT to join a group. That is clearly an individual right.

  68. How would the government enforce a law against assembly against an individual?

    Uh… By arresting him?

    Surely it’s not that easy, is it?

    Arrestee: But all of them are assembling too? Why aren’t you arresting them?

    Cop: Because I recognize their collective right to assemble. I don’t recognize your individual right to. Don’t you see the difference?

  69. MikeP,

    True enough, cops only arrest individuals.

    But the activity that individual is being arrested for in your example requires the group activity. Otherwise he is being arrested for something other than his assembling. The 1st protects the activity that, by definition, requires a group.

  70. MikeP,

    Of course, the logical problem with your example is this.

    The right of the group to be involved in the activity of assembly protects the individuals that make up the group.

    If you want to turn that on its head and say that it is the right of individuals that protects the group, fine, but that framing is a political position, not axiomatic.

    What is axiomatic is that assembly is an activity involving a group/collection.

  71. Person one: Hey, what are you doing?

    Person two: I am assembling with you.

    Person one: no you are not.

    Who is right? Person one or Person two?

    I would say person one.

    The assembling can not commence until the plural entity agrees it is occurring.

  72. Cops hear of an assembly at the corner of Wabash and Lake. They stand nearby. They ask the first person who shows up, “Are you here for an assembly?” He says, “Yes.” They arrest him.

    Rinse and repeat as needed. No assembly required.

  73. MikeP,

    Nice word play, I admit.

  74. Neu Mejican,

    The logical problems you see are caused by your insistence that the right to assembly is a collective right.

    Reserving judgment on the concept of a collective right, I fail to see why one person holding up a sign is not an assembly of one.

    What, the cops can arrest him because there aren’t two of them? But once there are two, they can’t arrest him? Is that at all sensible?

    Incidentally, is the right to petition the Government for a redress of grievances also a collective right because it appears after “the people” in the First Amendment?

  75. Gun control-the moral equilivent of a pile of fly covered garbage.

  76. MikeP,

    The logical problems you see are caused by your insistence that the right to assembly is a collective right.

    No. They are caused by the logical requirement that the activity “to assemble” requires more than one unit (e.g.,person).

    I fail to see why one person holding up a sign is not an assembly of one.

    Because it takes two to do the assembly tango.

    What, the cops can arrest him because there aren’t two of them? But once there are two, they can’t arrest him? Is that at all sensible?

    Incidentally, is the right to petition the Government for a redress of grievances also a collective right because it appears after “the people” in the First Amendment?

    No.

    You are confusing the two.

    The guy with the sign is involved in a solo activity that is protected, perhaps, under free speech rights, the right to petition the government, or some such that does not require collective action. Until he and another individual decide to assemble into a unit for some shared purpose, no assembly exists.

  77. NM,

    I guess you would make a good lawyer. You would undoubtedly be able to stand in front of the Supremes and defend DC’s gun ban.

    Personally, I would be unable to stand there and say thigs like, “DC’s gun ban recognizes the right of citizens to keep a loaded rifle on their nightstand, with trigger lock installed, if there are no children present, if they are arrested while doing so they may appeal their arrest and conviction under the ban and that would make a good test case whether that part of the DC ban is allowed under the constitution, but not withstanding the decision on that part of the ban it is entirely constitutional to ban handguns entirely because 2A is a collective right and not an individual right because you can not have an assembled gun because an assembled gun is clearly a collection of parts, hence as I pointed out it is a collective right.”

  78. Three people standing in a loose cluster listening to a concert in the park.

    Cop, with a threatening frown on his face: Are you three assembling?

    Three people: Uh, I don’t know about him, but I am just standing here. Gee, officer me too, but that other guy looks like an assembly type.

    Cop, now focusing on the obviously guilty assembler: You assembling? The other guys ratted you out. You got no respect for the constitution or something?

    Third guy: Well officer, I admit that I wanted to assemble and I tried to assemble but these other two lone-wackos ™ won’t cooperate. So, obviously even though it was my intent to assemble, I am not assembling because the other two are not assembling and it takes a plurality to assemble.

    Cop: God, what a fucked-up country.

    Three guys, all muttering, yeah, but it is the law…

  79. Neu Mejican,

    Forgive me for thinking there is some Platonic ideal behind the law that the language of the law is imperfectly describing.

    I see no use for the law to have a discontinuity between 1 and 2 where individual rights suddenly become collective rights, whatever difference that might represent. Rather I see rights as all individual and all continuous whether a person is speaking alone or speaking to an assembly, whether a person is marching alone or marching in an assembly.

    And yet the Aristotelean within me says that, if there is no practical difference between your collective right of a group to assemble and my individual rights of individuals to assemble, then I really don’t care what you call it.

    Do you see a practical difference regarding the right to assembly analogous to the alleged practical difference regarding the right to keep and bear arms?

  80. MikeP,

    I have stated many many times that there is an individual right to keep and bear arms.

    Whether or not the 2nd amendment protects that particular right is debatable.

    But let’s assume that the 2nd amendment is analogous to the right to assembly and is about the rights of a group of people to keep and bear arms for the purpose of protecting the free state.

    Just as the right of a group to assemble protects the individuals in that group, the right for a militia to keep and bear arms protects the right of individuals in that militia to keep and bear arms.

    Given that the militia is the citizenry, a collective interpretation of 2nd does not provide leverage to infringe on the rights of the members of the militia/citizenry.

    This is why I think the interesting part of this debate will be about the words “infringe” and, perhaps, “militia” rather than the collective/individual thing.

    And yet the Aristotelean within me says that, if there is no practical difference between your collective right of a group to assemble and my individual rights of individuals to assemble, then I really don’t care what you call it.

    Sure, but to make a sweeping claim, as Gilbert did above, that collective rights do not exist is a political position dressed up in the guise of a logical argument. It assumes its conclusion and ignores the evidence. The fact that I don’t even need to go to the 3rd Amendment to find a counter example tells me that those who make that argument haven’t thought it through very carefully.

    The same semantic contortions are required to hold that there are no positive rights. (see the 6th amendment)

    Wayne,
    Three people standing in a loose cluster listening to a concert in the park.

    Sorry, but your 3 concert goers have a shared purpose (listening to the concert).

    I guess you would make a good lawyer.

    That’s a pretty nasty accusation.=/;^P

    You would undoubtedly be able to stand in front of the Supremes and defend DC’s gun ban.

    I guess if it was my job to do so, I could.

    Do you somehow think that lawyers believe every argument they make? Do you not recognize the importance of advocacy in our judicial system?

  81. MikeP,

    Just for the sake of completeness.

    I guess if SCOTUS decided that the 2nd is about a collective right of people to keep and bear arms as a militia, they might rule that a claim to that right comes with a responsibility to participate actively in the militia somehow.

    DC’s ban wouldn’t be justified by that ruling.

    And if they claimed that responsibility was part of the right, they would be defining, at least in part, what “infringe” means. Requirements to demonstrate your participation in the militia explicitly might be allowed by such a ruling.

  82. “Do you somehow think that lawyers believe every argument they make? Do you not recognize the importance of advocacy in our judicial system?”

    They can not possibly believe every argument they make. I most assuredly do recognize the importance of advocacy.

  83. wayne,

    Good to hear.

    The way your accusation was worded it sounded like you were trying to claim the ability to advocate for a position was somehow a character flaw.

  84. “Sorry, but your 3 concert goers have a shared purpose (listening to the concert). ”

    I presume that is NM-speak for, “they are assembling”?

    “I guess if SCOTUS decided that the 2nd is about a collective right of people to keep and bear arms as a militia, they might rule that a claim to that right comes with a responsibility to participate actively in the militia somehow. ”

    I will grant that the Supremes can “rule” any way they like, however disconnected from reality, but to suggest that 2A implies a responsibility to participate in a militia is absurd. Temper that opinion with prior SCOTUS rulings such as upholding UofM’s affirmative action based on a “state need for diversity” and I will admit that SCOTUS might decide anything.

    With your reasoning ability, maybe you ought to be on SCOTUS, NM. Your suggested interpretation of 2A above (in effect instituting a milirary draft) would fit right in with their other absurd rulings.

  85. Sure, but to make a sweeping claim, as Gilbert did above, that collective rights do not exist is a political position dressed up in the guise of a logical argument. It assumes its conclusion and ignores the evidence. The fact that I don’t even need to go to the 3rd Amendment to find a counter example tells me that those who make that argument haven’t thought it through very carefully.

    Surely you realize that the belief that collective rights do not exist is a position derived from natural rights, and that the words found in the Bill of Rights cannot provide evidence for collective rights because that document is an attempt to describe preexisting rights of individuals secured by government.

    Discussions in the Constitution of rights that involve collections of people do not provide counterexamples against the position that all rights are individual: Rights exist entirely independently of the Constitution. Furthermore, it takes absolutely zero effort to read the rights secured by the Bill of Rights as individual rights. I would argue that it is a semantic contortion to think that the mention of rights when describing collective acts makes the rights collective.

    The same semantic contortions are required to hold that there are no positive rights. (see the 6th amendment)

    I think it was a tragic error to use ‘right’ instead of a better word such as ‘entitlement’, but the due process rights guaranteed by the Bill of Rights are not the same as the natural rights secured by the Bill of Rights. This requires no “semantic contortions.” It merely requires recognizing two definitions of ‘right’.

  86. “‘There are no “collective” rights to begin with.’

    That is a political position, not an axiom.”

    Seriously? I guess that’s why corporations had to be regarded as “juristic persons” to be granted rights that are granted to individuals, right?

    Rights *only* apply to individuals, not a collective. That’s why The Federal and State governments were granted powers, not rights.

  87. “Rights *only* apply to individuals, not a collective. That’s why The Federal and State governments were granted powers, not rights.”

    Exactly

    NM said:

    “You do not have a right to join my group or any particular assemble unless they agree to your inclusion. The group has a right to set the conditions for membership.”

    And who says any “assembly” equals some club with membership rules?

    The more appropriate conceot is a crowd.

    I can join the crowd or “assembly” to listen to a concert in the park and that has nothing to do with joining any particular “club”

    While people in official groups can and do orgainize demonstrations and protests of things all the time, assemblies of people also can and do occur that are not the result of any self-identified group with membership requirements.

    If two or more people show up at the county courthouse to protest something you can label those people an “assenmbly” or a “crowd” but that doesn’t change the individual nature of the right or the independent decision of each one to show up there.

  88. I will start by saying that MikeP is the only person who has made a substantial argument in response to my comments.

    The existence of “natural rights” itself, however, is a political position rather than axiomatic.

    About this…
    I would argue that it is a semantic contortion to think that the mention of rights when describing collective acts makes the rights collective.

    The right described is nothing more nor less than the right to engage in that collective act. Since the act requires a collective to take place, it is a collective right. Nothing dangerous about that concept.

    Another avenue for thinking about this topic would be to consider whether families have rights as families or not.

    I think it was a tragic error to use ‘right’ instead of a better word such as ‘entitlement’, but the due process rights guaranteed by the Bill of Rights are not the same as the natural rights secured by the Bill of Rights. This requires no “semantic contortions.” It merely requires recognizing two definitions of ‘right’.

    This is much the same as your point about the practical differences between our positions. If you want to call positive rights “entitlements” I have no problem with that…it doesn’t substantial change the underlying concept.

    Gilbert

    And who says any “assembly” equals some club with membership rules?

    Not I.

  89. “I will start by saying that MikeP is the only person who has made a substantial argument in response to my comments.”

    Which means nothing since YOU are not the judge of what is or isn’t “substantial”

  90. Gilbert Martin,

    Yes I am.

    Prove me wrong.

  91. I know you got it in you Gilbert.

    I believe in you.

    Really I do.

  92. “Yes I am.

    Prove me wrong.”

    LOL

    I don’t have to prove that you’re not – YOU have to prove that you are – and you can’t do it.

    And while you’re at it – consider this scenario about the right to assemble:

    Citizen A is concerned about Issue #1 so he makes a sign and goes down to the public square to demonstrate.

    Citizen B is concerned about Issue #2 so he makes a sign and goes down to the public square to demonstrate.

    Citizen C is concerned about Issue #1 but he has the opposite view of it than Citizen A. He also makes a sign and goes down to the public square to demonstrate.

    All three of them are on the public square holding their signs. Since there are three of them, that makes it an assembly.

    None of the three knows or cares anything about the other two. None of the three has any authority to require the other two to leave or stay. There was no pre-existing coordination between any of them to show up at the same place at the same time.

    Try and explain what “collective” decision necessary to create this assembly.

  93. Gilbert,

    You have a strange sense of the concept of an assembly.

    I do think it sounds like two of your three individuals would count as an assembly. A&C came to the same place at the same time to speak about the same issue…they have a shared purpose, even if they have different goals.

    B is just an individual who happens to be involved in a similar activity in the area.

    No need for him to worry about his right to assembly. He has a right to free speech, right to petition the government, etc…

  94. Gilbert,

    To clarify.
    If A&C decide to engage in a dialog, then they would be an assembly. If they just ignore each other, they aren’t.

  95. BTW,

    I don’t have to prove that you’re not – YOU have to prove that you are – and you can’t do it.

    My proof:

    I claim that “MikeP is the only person who has made a substantial argument in response to my comments.”

    Since this is obviously an assertion of my opinion about a topic (how substantial the responses to my comment were), and I have the most direct knowledge about what my opinion is, I am the best judge as to whether I think an argument is a substantial response or not.

    Not really a challenge.

  96. So back to the assembly scenario you present.

    What I see as the logic flaw is that you want to define the assembly from the outside.

    You see some people standing together, and you want to call them an assembly.

    The human brain is great at that kind of thinking (the root of racism, for instance).

    But you (or the government) don’t get to decide if they are an assembly. They do. That is an important aspect of the right to assembly.

    An assembly is not defined simply by proximity. Assemblies have functional coherence…a common purpose that is internally defined.

    It really isn’t that difficult of a concept.

  97. For instance,

    H&R seems like it might, perhaps, qualify as an example of an assembly…and proximity is not an element.

  98. “Since this is obviously an assertion of my opinion about a topic (how substantial the responses to my comment were), and I have the most direct knowledge about what my opinion is, I am the best judge as to whether I think an argument is a substantial response or not.”

    That is circular nonsense.

    The proof that is required isn’t what your opinion is or isn’t – the proof that is required is that your opinion is, in fact, correct. That you cannot do.

    “B is just an individual who happens to be involved in a similar activity in the area.

    No need for him to worry about his right to assembly. He has a right to free speech, right to petition the government, etc…”

    It is not a fact that B is not covered by right to assemble and has to rely on freedom of speech – that is merely your contention.

  99. “You see some people standing together, and you want to call them an assembly.”

    And you simply want to deny that they are.

    “But you (or the government) don’t get to decide if they are an assembly.”

    “You don’t get to decide that a group of people standing together isn’t an assembly.

    “An assembly is not defined simply by proximity. Assemblies have functional coherence…a common purpose that is internally defined.”

    The right is to ASSEMBLE – not to be an ASSEMBLY. The assembly is the merely the aggregate result of each individual’s choice to show up.

    If only person happens to show up for a demonstration or 1,000 happen to show up each one of them is still exercising his right to assemble and is covered by that right.

    If only one person show up, his right to assemble is not diminshed just because no one else decided to exercise their right to assemble in that particular place at that particular time.

  100. Gilbert,

    See definition of assemble posted above.

    Words have meaning.
    Really, they do.

    You don’t get to decide that a group of people standing together isn’t an assembly.

    That is consistent with my assertion that their status as an assembly results from their shared purpose and is an intrinsic to the concept of an assembly.

    So we agree on something.

  101. The proof that is required isn’t what your opinion is or isn’t – the proof that is required is that your opinion is, in fact, correct. That you cannot do.

    Required by whom?

    You get to state opinions as if they are facts but I don’t?

    It is not a fact that B is not covered by right to assemble and has to rely on freedom of speech – that is merely your contention.

    No.
    It is logically required by the semantics of the word “assemble.”

    Since you are making the assertion to the contrary, please derive for me the coherent argument about his solo-assembling that doesn’t require a radical redefinition of the key term “assemble.”

  102. And Gilbert,

    The words “coherent” and “argument” have meanings too.

  103. Tip

    Your conclusion (e.g., “there are no collective rights”) can not be presented as an axiom (“it is a given that…”).

  104. If only [one] person happens to show up for a demonstration or 1,000 happen to show up each one of them is still exercising his right to assemble and is covered by that right.

    The solo individual who WANTS to assemble has been foiled in his attempt to exercise his right by the lack of anyone to assemble with.

    Sad, but not a demonstration that he is assembling.

  105. “That is consistent with my assertion that their status as an assembly results from their shared purpose and is an intrinsic to the concept of an assembly. ”

    Nope – any crowd is an “assembly”.

    “No.
    It is logically required by the semantics of the word “assemble.”

    Not on your say so.

    “The solo individual who WANTS to assemble has been foiled in his attempt to exercise his right by the lack of anyone to assemble with.

    Sad, but not a demonstration that he is assembling.”

    Not on your say so.

    “The words “coherent” and “argument” have meanings too.”

    And you’re no more the judge of what constitutes either one than you are of what is “substantive”

    And that about does it.

    I’m not wasting any more of my time on you so.

  106. Gilbert, clearly, you are an intellectual chicken shit.

    Your argument summarized.

    Yes it is.
    Not it isn’t.

    Twit.

  107. Pardon the typos..

    That is

    “No it isn’t”

    and

    “To wit”

    Not on your say so.

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