Gun Control

Supreme Court's Silence Clouds Gun Control Debate

The justices have passed up one opportunity after another to clarify the boundaries of the constitutional right to arms.


This month's mass shooting at a high school in Florida has predictably provoked demands for new restrictions on guns, most of which are dubious on practical grounds, constitutional grounds, or both. But while logic and experience can help us figure out which measures are likely to be effective, the debate about which ones are consistent with the Second Amendment occurs in a shadowland only partly illuminated by the Supreme Court.

In the decade since the Court officially recognized the individual right to armed self-defense, it has passed up one opportunity after another to clarify the boundaries of that right. "The right to keep and bear arms is apparently this Court's constitutional orphan," Justice Clarence Thomas observed last week as the Court declined to hear yet another Second Amendment case.

That case involved California's 10-day waiting period for buying firearms, which applies even when state and federal background checks take less time and even when the buyer has previously been cleared and already owns a gun. In 2014 a federal judge ruled that the waiting period violates the Second Amendment rights of people who are buying additional firearms or who hold concealed-carry licenses.

When the U.S. Court of Appeals for the 9th Circuit overturned that decision in 2016, Thomas noted, "it did so without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without ac­knowledging the District Court's factual findings." That highly deferential approach, he said, was clearly inappropriate for an enumerated constitutional right and inconsistent with the Court's Second Amendment precedents.

Thomas suggested that his colleagues would have been keen to correct such a blatant error if the case had implicated a different amendment. "Our continued refusal to hear Second Amendment cases only enables this kind of defiance," he wrote.

It was not the first time Thomas had complained about the Court's neglect of the Second Amendment. Last year he and Justice Neil Gorsuch strenuously objected when the Court declined to review a 9th Circuit decision upholding California's requirement that concealed-carry licenses be issued only for "good cause," which gives local officials broad discretion to reject applicants.

Thomas called the 9th Circuit's focus on concealed guns, as opposed to the more general right to armed self-defense outside the home, "untenable" and "indefensible." He noted that the Second Amendment protects the right to "bear" as well as "keep" weapons, adding, "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen."

In 2015 Thomas was similarly skeptical of the idea that guns arbitrarily identified as "assault weapons" are beyond the scope of the Second Amendment. He wrote that the Court should have reviewed a decision in which the U.S. Court of Appeals for the 7th Circuit upheld an "assault weapon" ban imposed by the city of Highland Park, Illinois, which covered "many of the most commonly owned semiautomatic firearms."

The Supreme Court's 2008 decision overturning the District of Columbia's handgun ban made it clear, Thomas said, that the Second Amendment encompasses "firearms that millions of Americans commonly own for lawful purposes." Yet the 7th Circuit upheld Highland Park's ban based on little more than "speculation about the law's potential policy benefits," including the possibility that it "may increase the public's sense of safety."

The illusion of safety is the main thing such laws have to offer, since they target features that make guns look scarier without making them more lethal. "If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all)," Thomas observed, "then the Second Amendment guar­antees nothing."

Given the recent agitation for a new federal ban on so-called assault weapons, Thomas's warning is as relevant as ever. But the courts will not be compelled to act on it until his colleagues stop treating the right to arms as a constitutional orphan.

© Copright 2018 by Creators Syndicate Inc.

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  1. It is a puzzle. Does anyone know what the rules are for deciding which cases to accept and decline? I have heard it takes 4 justices to accept a case; maybe because that could imply 5 would vote against it, some of the justices reject them. But that is its own puzzle. 5 voted for Heller and MacDonald; the only difference is that one of the 5 has been replaced by a like-minded justice. Why would any of those 5 enjoy having appeals courts thumb their noses at them?

    1. Because the “conservative” justices know that they performed a grotesquely unconstitutional act in writing the Heller decision, and one that conservatives have long railed against: they rewrote the Constitution from the bench.

      1. I’ve always found it funny how most “conservatives” who hate the legislating from the bench will ardently defend the Heller decision and it’s avoidance of “well regulated milita.”

        1. Have you ever actually read the Heller decision? It is hardly avoided.

        2. My guess is that you, like most other confiscationists, have little interest in any well-regulated militia beyond a plausible excuse not to recognize an individual right. Otherwise you’d be advocating Swiss-style comprehensive militia training.

    2. As Thomas pointed out, non-Constitutional rights get far more protection than Constitutional ones. If abortion hd a 10 day waiting period, SCOTUS would’ve shot that down post haste.

    3. By the SCOTUS own rules, which they get to make, 4 out of 9 justices decide to take a case or not.

      It would seem Thomas and Gorsuch voted for these 2nd Amendment cases. Roberts is a tool of the left, so I doubt he voted for the cases. Kennedy refuses to retire so Trump can get an originalist young buck in there, so I would suspect its him that is not voting for the case.

      In the end we don’t know. We do know that Roberts, Alito, and Kennedy are wishy washy on protecting constitutional rights and limiting government just like the lefty justices.

      1. My expectation is that Thomas and probably Gorsuch are voting to take the cases, but nobody else.

        In all likelihood, at least one of the justices in the Heller/McDonald majority has switched sides, but is not thought to be a reliable anti-gun vote. Probably Kennedy, but possibly Roberts.

        So the anti-gunners on the Court won’t take cases they don’t know they’ll win while the lower courts are doing the work of erasing Heller/McDonald bit by bit.

        Meanwhile, at least a couple of the nominally pro-gun justices won’t vote to take the cases, because they fear setting bad precedents if the other side wins.

        This will continue until one of the justices in the anti-gun side gets replaced by Trump, or one of the pro-gun justices gets replaced by a Democratic President.

        Thomas votes to take the cases because he doesn’t care if he loses, he’s not a tactical justice, he just does what he thinks is right.

        1. You raise a good point that pro-2nd Amendment justices would not want to take gun rights cases if the other side would win and set bad precedents.

  2. Thomas’ lament that “I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen” is telling, since the Framers specifically excluded any mention of self-defense in the language and debates of the 2nd Amendment, which the Scalia decision in Heller deliberately manipulated into a brand new individual right.

    Google “The Real Second Amendment” for the actual history, intent and meaning.

    1. Something like that. The 2nd Amendment protects the people’s right to keep and bear all armaments, including but not limited to: rifles, pistols, grenades, canons, ships, knives, swords, machine guns, artillery, tanks, missiles, bombs, etc.

      Zero government laws against keeping and bearing those arms.

      That is the actual history, intent, and meaning.

      1. More from Scalia’s Heller Opinion

        Like most rights, the right secured by the Second Amendment is not unlimited…
        We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradi?tion of prohibiting the carrying of “dangerous and unusual weapons.”…

        Scalia’s opinion supports that common types of arms (AR-15s are pretty common) are protected. But to claim that machine guns, tanks, missiles, etc are common armaments is pretty much bogus. Not even Scalia, it seems, would have agreed with that.

        1. Scalia was wrong.

          The Second Amendment is pretty simple–

          ….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.

          Nothing about ‘in common use at the time’. Not a word.

          Not a word about guns, for that matter. It says ARMS. And it does so because the crowned heads of Europe were terribly fond of limiting their subjects ability to defend themselves.

          Arms. Knives, swords, bows, guns, cannon, bombs– ARMS.

          Even Supreme Court Justices can be wrong.

          1. Looking to whatever else the framers wrote about the constitution and its amendments is necessary for context–otherwise meanings change over time.

            Progressives have a certain view of what is meant by a “well-regulated militia”. It doesn’t jibe with Federalist Papers No. 29:

            “To be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.”

            According to that, a well-regulated militia is one that is proficient in the use of its arms. It argues that individuals should be free to own their own weapons, in part, because they need to use them at their leisure in order to become proficient in their use.

          2. We still talk about the difference between “regular army” and “irregulars”, and the main difference is equipment and training. Certainly, within the context of Federalist Papers No. 29, when the Second Amendment states that “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.”, it’s not saying that the Federal Department of Militias needs to regulate the militia like the EPA regulates fuel economy in cars. It’s saying that because people knowing how to use their weapons is necessary to counter a tyrannical government with a standing army, people are free to own and use their own weapons.

            That isn’t the only thing about the Second Amendment that can be cleared up with context, and Scalia was correct to look at things that clarify the meaning of the Constitution rather than changing its meaning.

          3. You’re certainly free to believe whatever you want, but the legal interpretation of 2A is Heller + McDonald (among other precedents).

            I think your opinion is somewhat rare though. I don’t commonly see the NRA or any other gun rights activists arguing that you have a right to RPGs, even though they are bearable they aren’t “usual”.

            1. For now. You don’t see the trend for more protections of gun rights under the 2A?

              Its why the gun grabbers are trying so hard. They know that its harder to scrub laws once they are established. Better weapons rights for the People will be harder to reverse.

              1. I don’t think much can be gained in the current political climate, and that we’re better off defending our current line in the sand on guns (which quite frankly are some of the most liberal gun laws in the world).

                Honestly, there’s no public debate on whether cannons or RPGs are protected. It’s not even really relevant right now. I suspect that you could even garner enough support to amend the Constitution to explicitly ban both of them from private use. It’s not a path that you or any other 2A supporter (me included) should want to go down right now.

                1. Actually Switzerland also has very liberal gun laws but you are probably right that overall, the USA has the most liberal gun rules in the 1st World countries.

                  Switzerland allows all citizens to take fully auto weapons home. They used to be strict on citizenship too.

        2. The amendment says “to bear” and thus if it is an arm that cannot be carried, such as a tank, it is not protected. It is a silly reductio ad absurdum fallacy one always sees about the 2nd Amendment…”what about nuclear missiles and battleship, huh huh huh!”

          1. That is not what “bear” means.

            Its why you bring artillery to bear on an enemy. Navy ships bring their huge guns to bear on the enemy.

            Even if you consider the second clause of the 2nd Amendment to be the individual right to keep and bear small arms, the first clause protects the right of the people to form militias. Either way, the People have a right to any armament they want.

            So yes, nuclear weapons and battleships. When an individual creates a nuclear weapon, let me know. It took the US government years and about $5 billion per four nukes created plus hundreds of thousands of workers. As to battleships, some early American patriots had private warships that they used to destroy British shipping and warships under Letters of Marque.

            1. In the context of the Second Amendment, it means to “bear” as in to carry. Please watch this video of Scalia, the author of Heller, on Fox News Sunday, (starting at minute 5:20) delving into this very issue.


              Militia of the early republic also often used cannons that were purchased by wealthy individuals. What that means is that people were more comfortable with even deadlier weapons in the hands of citizens, which strengthens the arguments for modern AR15s. But it also doesn’t mean that cannons are protected by the 2nd Amendment, unless, I suppose, they were hand carried.

              1. I hate to break it to you but Scalia is not the sole arbiter of what is actually Constitutional. He was wrong many times and he’s dead anywho.

                The Founders fully expected and advocated the People using those armaments to overthrown an American government that became tyrannical.

                Soap box. Ballot box. Jury box. Ammo box. As the saying goes.

                1. I also hate to break it to you, but in this place called the real world, people must provide evidence for their claims or they are assumed to be wrong. So, please provide evidence that the word “bear” as used by the writers of the 2nd Amendment had, in context of the phrase “keep and bear arms” (as in guns and blades) also meant bringing cannons to “bear” on a target, or any other meaning of the word “bear” other than “to carry.” Go ahead, I’ll wait.

                  And I think we are on the same side, you fucking moron. I am a HUGE supporter of the 2nd Amendment and what it was designed for, which is a check against a tyrannical government. I am merely pointing out that the words “to bear” in the amendment mean, “to carry” so we can ignore the silly arguments from the hoplophobes that if we are supporters of the 2nd Amendment, we must also support allowing everybody to have any type of weapon imaginable.

        3. Scalia was wrong and he’s dead anyway.

          I bet you that if asked, Gorsuch would agree with my list of armaments. A constitutional originalist would. We have only seen Gorsuch in a handful of cases but he looks pretty originalist so far.

          Clearly the other justices are scared shitless at how originalist Gorsuch is.

          1. You can certainly argue that position, but the law of the land is Heller + McDonald (among other precedents).

            If you would like to change that, I suggest brushing up on Article V, or packing the court with at least 5 Gorsuchs and suing the government for taking your battleship.

            1. Article V state led constitutional convention is coming soon.

              As with weak Supreme Court decisions, they change. More 2nd Amendment protections are coming soon.

              1. If you think expanding the list of arms to some of the examples used is popular enough, then I would question your reading of the current populace. The Republicans are really going to let you down on this one I’m afraid. The current leader of the party is in favor of banning gimmicks like bump stocks, and raising the age of purchase. You really think the modern Republican party is in favor of allowing everyone a tank, let alone RPGs or machine guns?

                1. The Republicans in Congress are not representative of the Republicans that will be contributing to the constitutional amendments. Which is why the GOP has been getting closer to getting the 34 state Legislatures that they need.

                  These conservatives will likely institute term limits, balanced budget, and other amendments that the RINOs in Congress do not want and lefties will hate.

                  You know you can already own a tank, machine gun, and rocket launcher?

                  1. “These conservatives will likely institute term limits, balanced budget, and other amendments that the RINOs in Congress do not want and lefties will hate.”

                    I hope you’re right. I live in a red state, and I wouldn’t trust my Republican state legislature any further than I can throw them.

                    “You know you can already own a tank, machine gun, and rocket launcher?”

                    Where can I purchase a Bradley? They look like a lot of fun!

    2. The purpose of the Second Amendment was to ensure that average people had both the weapons and proficiency necessary to rise up and form a formidable force to defend our rights and oppose the standing army of a tyrannical government should one ever materialize in the future. Hardly surprising given that the Framers had fought and won the American Revolution–yeah, they knew what they were saying and why.

      I’m not sure that the Second Amendment protects the right to bear weaponized ebola. Someone might argue that an insurgency like the one in Afghanistan is able to put up a substantial fight against our military forces using mostly “small arms”. Those small arms include rifles like AK-47s and AR-15s that can be made fully automatic.

      Regardless, I’m weary of people conflating those two arguments. Even IF IF IF the Second Amendment has limits in the destructive ability of the “arms” it protects our right to bear, we still have the right to bear arms that are sufficiently powerful to form a formidable force against a military dictatorship.

      If the left wants to alter or repeal the Second Amendment, there’s a constitutional process available to accomplish that. In the meantime, playing word games with the text isn’t about to diminish what is clearly a right to bear arms of some formidable power in defense of our rights and liberties against an oppressive military force, be it foreign or domestic.

    3. Not quite correct. The original draft said the right belonged to “the body of the people” but was changed to “the right of the people” to mirror the same language in the 1st, 4th, and 10th, where the rights are specifically intended to be individual rights. How can you have a collective right to your papers and effects? I am tired of people who read a politico article and think that they are constitutional scholars.

  3. Probably just taking stock of the situation because they know it’s triggering for a lot of people. They don’t want to jump the gun by going off half-cocked, that just gives ammunition for the other side to target the justices in attacking the decision. You want to rifle through the file of past cases, scope out all the arguments first.

    1. And….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.

    2. Obviously posters are on a hair trigger waiting to return fire on any post when something like that one’s a target.

    3. I see what you did there…nice.

  4. The Supreme Court seems to be treating gun rights as if their regulation were a reserved power for the states.

    It’s like the opposite of Roe v. Wade. They seem to want gun rights decided on a state by state basis.

    I understand their hesitance. The ramifications for legal AR-15s in Chicago, where the murder rate spiked more than 70% in 2016, are different than they are in Montana.

    A moral commitment to liberty requires us to allow people to choose to do evil things with their freedom–and not everyone has the stomach for that.

    1. This is completely consistent with the original construction of the constitution.

      The federal government could not infringe on the right to keep and bear arms. Which meant that if you were a wealthy landowner, you could have cannons.

      But if you were a small city at a crossroads, you could outlaw all guns within the city limits and post a sign at the border to that effect.

      The 14th amendment complicates the whole thing though, because the courts have decided that this incorporates all protections of the US constitution to the states. This is completely at odds with the 9th and 10th amendments and the text of the body of the constitution. So what was once clear has become unclear.

      But as for gun control, anyone who can read should be able to understand that the assault weapons ban is clearly and unambiguously unconstitutional at the federal level. (abridge means to reduce in extent or quantity, to impose a restriction upon, to curtail. Saying you can’t have a folding stock on your rifle is pretty much 100% spot-on imposing a restriction on the ability to keep and bear arms)

      1. An easy fix to this quandary would be to simply read the 14th and 9th and 10th amendments in context and recognize that this is a power that is reserved to the states. The NRA wouldn’t like it, but it would at least make some legal sense.

        And of course this would just open another can of worms, as we already have trouble with people getting tossed in jail for decades for innocently traversing a territory that has a different set of gun laws.

        1. The 14th Amendment was, in part, specifically designed to undo the damage of the Dred Scott decision, where Chief Justice Taney (the author) worried that if blacks were full citizens they could “bear arms wherever they went.” The thought of armed black citizens was to much for the Southern elite.

          The drafters of the 14th Amendment even used the same language about “privileges and immunities” of citizens not being taken away by the states. Given that context, it is clear as a window that the 14th Amendment was intended to protect what they thought was an individual right to keep and bear arms.

          1. An excellent point.

      2. This is completely consistent with the original construction of the constitution.

        Except 2A does not reference the federal congress as 1A does. By that reading the 14th amendment is immaterial and 2A covers all territory subject to the jurisdiction of the United States.

    2. “Legal” AR-15s in Chicago are the least of the government’s worries. There are already plenty of illegal AR-15s floating around Chicago. Handguns are the weapons of choice there. Gangbangers simply don’t have a general need for rifles in their day-to-day business. The illegality of ARs in Chicago is not preventing anything.

      1. I hope you appreciate the point that people in inner city Chicago and people in rural Montana have different concerns and different levels of concern.

        In rural Montana, if you want to keep a kid out of trouble, you might give him a dog and a rifle.

        On the south side of Chicago, maybe that’s not a good idea.

        Put aside the observation that lowering the transaction costs of acquiring an AR-15 might increase their circulation, and I hope you can see that Supreme Court justices aren’t just making decisions that will effect people in Montana. It’s probably prudent of them to change things only with caution.

        They’ve screwed things up royally by making changes in the past.

    3. “The Supreme Court seems to be treating gun rights as if their regulation were a reserved power for the states.”

      The McDonald and Heller decisions don’t fully support your contention. They’ve certainly said that banning “common” types of guns is not something that the states can do.

      The SCOTUS seems to be balking at other limitations, specifically waiting periods in this case. Although, not knowing where certain justices fall on this issue (I’m looking at you Kennedy) it might be the right strategy to delay. I’m really not certain, but I would suspect that 2A supporters would rather have no decision than a bad decision.

      I do think personally that “short” waiting periods are reasonable limitations on your rights. Although I also don’t think they’re effective in limiting gun violence, except in maybe very rare cases (heat of the moment type things).

      1. “except maybe in very rare cases”

        Which seems to be what we base our decisions on.

        We ban “assault weapons” because we are afraid of drug dealers and crazy mass murderers with AR-15s, even though the percentage of all gun murders carried out using any sort of rifle is tiny. We use handguns to kill each other.

        The same probably goes for your example of “heat of the moment” and waiting periods. I wonder how many people were killed before the adoption of the waiting period in a “I’m gonna go buy a gun! Wait right here!” scenario. Probably not too terribly large of a percentage.

  5. That highly deferential approach, he said, was clearly inappropriate for an enumerated constitutional right and inconsistent with the Court’s Second Amendment precedents.

    Courts do seem to beef up non-enumerated rights and pare down enumerated rights, as though either extreme would be too frightening to let stand.

    1. It is extremely odd that the unwritten right to privacy should be absolute and inviolate when it comes to abortion, and yet there is no right to privacy with respect to what you choose to eat. And the rights to freedom of speech and keeping and bearing arms which are written in absolutist language are somehow completely malleable.

      This would all be much simpler if the courts adopted an attitude of “we interpret the law as written – go fix the law if you don’t like this result”. Of course this would require the constitution to be hundreds of pages long if you wanted to allow for the government that we currently have. Or I suppose you could get around that mess by simply codifying our current system, which is to say “the federal government has whatever powers the courts, executive and legislative branches agree that it has”.

  6. Perhaps everyone on the Court except Thomas has decided that the constitutional “right of self defense” was pulled out of Nino Scalia’s ass as payback for the triumph of the “so-called homosexual agenda”, which I agree was dubious “law”. It’s “interesting” that in the original DC case Scalia greedily overturned every aspect of the DC law, finding a constitutional right of 1) self defense with a firearm, 2) self defense with a handgun, and 3) self defense with a handgun without the burden of those damn hippie trigger locks.

    Scalia’s decision did all this without overturning a single federal law. Many previous justices did not read the Constitution as containing a right of self defense and that the NRA never brought a suit on the issue because their attorneys were afraid they would lose. It’s remarkable to me that virtually no one acknowledges the way the modern conflict over gun laws was driven by first the race riots of the sixties and the massive increase in violent crime among young black men in the following decades. Conservatives wanted to defend themselves while liberals hoped that gun control could make violent crime go away.

    Now crime is down (no thanks to gun laws) and there is a right-winger in the White House. For some reason that seems to make the population more receptive to new gun control legislation. Go figure. But now poor Justice Thomas, who sometimes is a definite straight-shooter (ha, ha) seems a bit stranded.

    1. Re: Alan Vanneman,

      Perhaps everyone on the Court except Thomas has decided that the constitutional “right of self defense” was pulled out of Nino Scalia’s ass…

      What are you even talking about? You, me, everyone has a right to defend our lives from attack, from ANY attack. What do you think medicine is about?

      If you think “self-defense” is not a right, let the girls who fight off would-be rapists know that they lack your permission to kick and bite.


      Why is it that seemingly smart people say really stoopid shit like that with no pause for even a passing thought?

      By the way, the Constitution does NOT bestow rights. NO constitution can. Each of us is already born with rights: the consequence of our ability to act outside the confines of instinct and nature.

      1. In his defense, it does appear that there are a number of supreme court justices who view the right of self defense using deadly force as having no bearing on your right to be prepared for that eventuality with some sort of implement capable of being a deadly weapon. There also seems to be a very strong thread of thought that says that you can do all the defending of yourself that you need by calling 911 and letting the police take care of it for you.

    2. …there is a right-winger in the White House.

      Let’s not get carried away.

  7. In US v. Cruikshank (1875), the Court decided that it was okay for the KKK to deprive freed slaves the right to bear arms, as the constitution did not restrict states’ of their right to control the rights of its own citizens.

    In Presser v. Illinois (1886), the court ruled that the Second Amendment was a right of individuals. Not militias.

    Prior to those cases, the Second Amendment had been unambiguous to everyone. Only more recently has simple English become too complicated for modern readers.

    US v. Miller (1934) was not defended, as Miller was in jail at the time, and his lawyer could not come to Washington to plead the case. It was a setup, allowed to move all the way to the Supreme Court by a pro-FDR prosecutor who believed the case would be rubberstamped through an FDR-stacked Court. Instead, the decision was narrow (still wrong), as it was decided that weapons used by a militia could not be restricted.

    One of the devices in Miller ? a sawed off shotgun ? was not considered a weapon used by the military, even though at least a couple of the Supreme Court justices had served in the military and should have known that short-barreled shotguns are employed by the military in breech operations.

    Because of Miller, the National Firearms Act of 1934 has stood, despite the fact it’s unconstitutional.

    Any law restricting firearms is unconstitutional, which is why the modern Supreme Court has been loath to revisit any gun legislation that has been brought to its door.

    1. “Any law restricting firearms is unconstitutional”

      What is the source of that legal insight?


      Backwater religious school?

      Hillsdale online course?

      Regent, Liberty, or Ave Maria law school?

      Chewing the fat after a militia meeting?

      1. The letter of the law is pretty clear. “But we’ve ignored that for…. forever!” doesn’t really change the letter of the law.

        Not infringed is a pretty broad net. Taking the second definition from Google dictionary: act so as to limit or undermine (something); encroach on. synonyms: restrict, limit, curb, check, encroach on;

        “Arms” is a pretty broad category – taking the first definition from Google dictionary: weapons and ammunition; armaments. synonyms: weapons, weaponry, firearms, guns, ordnance, artillery, armaments, munitions, mat?riel

        So firearms is a subset of arms. And restricting is a subset of “infringed”.

        Yes, the constitution is perfectly clear that any law restricting firearms is unconstitutional.

        the right of the people to keep and bear Arms (e.g. firearms), shall not be infringed (restricted).

        It doesn’t mean it is a necessarily a good policy. But the law is crystal clear on that topic.

        1. Are there any other unconditional rights in the Constitution you perceive?

          1. You are shifting from “the letter of the law” to “rights”

            The law in question does attempt to enshrine a particular right. But it also has a black and white meaning.

            The first amendment says “Shall make no law”. It doesn’t have a phrase following it that says “unless…”.

            That is pretty absolute in its language.

            Completely separate questions are:

            1. Is this a good idea?
            2. If we want exceptions to this prohibition, what should we do?
            3. What is a right?
            4. What happens if another right conflicts with this amendment?

            In this case we have decided to let practicality, tradition, expedience and individual preference overrule the black and white meaning of the law.

            It makes sense to have done this. We wouldn’t have lasted 5 minutes as a nation if we had actually adhered to the constitution as written – because we would have been mired in a couple of decades of never-ending amendment battles.

            Still, I would prefer it if we could live up to our ideal that we would be a nation of laws rather than a nation of men. We have a veneer of being a nation of law- but when it comes down to it, the Supreme Court has decided that they will be the arbiters of what is right, rather than the interpreters of the law.

      2. What is the source? A lack of ignorance.

  8. Moving deliberately in the wake of a newly established right seems prudent.

    Extremists are likely to disagree.

  9. If the Senate goes blue after 2018, what are the odds RGB and Kennedy retire? Probably pretty high, right? The Senate probably will stay red though.

    I am curious what you commenters think of this proposal for Supreme Court Justices. Rather than lifetime appointments, SCOTUS Justices are appointed until their 75th birthday year. RGB is 84. Kennedy is 81. Scalia was a few weeks away from turning 80 before he passed away on the bench. Breyer turns 80 this year. It is absurd to me anyone that is over 80, can be a SCOTUS Justice.

  10. When will Reason add an Ignore User button?

    1. We had one in the Reasonable extension. Unfortunately they left and it is broken.

      They should just take that code and implement it. It was very useful. It also had bits for inserting formatting tags and links, which should have helped SugarFree more than it did.

  11. 1. The prefatory clause does not qualify the right with terms like “so long as” or “being necessary for” or “only when”.

    2. It was common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

    3. The operative clause says that the right to “keep and bear arms” is to be preserved by government, implying that it pre-existed the Constitution similar to the 1A. Does it make more sense to anchor this right in the right of self defense (English Declaration of Right) or in a right to be part of a militia that has no historical root?

    4. The right possessor is “the people” just as it is with the 1st, 4th, 9th, and 10th amendments. All of which protect individual rights, where the 10th also distinguishes “the States” and “the people”.

    5. If it was only about keeping the federal government from disarming the militias, why not state this directly as “Congress shall make no law disarming the state militias”?

    6. To “bear arms” is not idiomatically limited to soldiering. The Pennsylvania Const calls out “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned”

    7. Arms available for militia service were simultaneously used for personal use, including hunting and self defense.

    8. To “keep” arms implies possession. A ban on private ownership of arms would have been catastrophic for ensuring the militia was ready for action. It’s a nonsensical read of the amendment.

    1. The question becomes: how does this textual read impact how a 10-day waiting period is analyzed? Does it overly burden an individual’s right to arms for self defense….or is it a reasonable policy choice? Does the waiting period actually cool people down from an impulsive or rash decision….or is it condescending and onerous? I think the decision has to go beyond a rational basis….and the Court should require evidence that a waiting period has a reasonable expectation of reducing unwanted gun homicides or accidents. It probably should have been reviewed.

      1. Any gun control, including but not limited to a 10 day waiting period is unconstitutional [period]

        1. I’m not sure if your vote counts much….unless you are a Supreme Court justice. The law of the land suggests that most sales of machines guns are illegal (you are still free to build one from scratch….and some states do allow you to buy them but it must be registered). Limits on the size of magazines also was not selected for review by the Court, so it too remains de facto legal. Normative thinking is fun….but at the end of the day, the law is the law…not what we hope it to be….

  12. District of Columbia v. Heller
    was heard in 2008, after the expiration of the 1994-2004 AWB.
    The court found, among other things, that:

    “(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia…”

    And, importantly,

    “(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion….United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.”

    In short, the 2008 SC ruling verified that private citizens have an individual right to possess arms, and that the arms protected are, specifically, those used by the militia, eg, military style rifles.

    1) SC rules “limits the type of weapon to which the right applies to those used by the militia,”

    2) events occur that spur debate

    3) “anti’s” say “the 2nd doesn’t protect ‘weapons of war’/ ‘assault rifles’ / ‘military grade rifles’.

    4) “pro’s” rebut that assertion, claiming that “the AR is not a military rifle/no army in the world issues AR15’s”

    5) Neutral observer realized the “pro” commentators have chosen an illogical strategy, and have stridently insisted that their favorite rifle is not protected by the verbiage.

    1. “In short, the 2008 SC ruling verified that private citizens have an individual right to possess arms, and that the arms protected are, specifically, those used by the militia, eg, military style rifles.”

      You’ve ignored the whole premise for the case. The law in question was DC’s Firearms Control Regulations Act of 1975, and the case was specifically focused around handguns and requiring trigger locks. Yet you’ve somehow construed the ruling in Heller’s favor to mean only “those used by the militia, eg, military style rifles.”

      1. You are correct to a certain extent. The contested quote was an affirmation of the finding in Miller, which was referenced in the Heller case.

        Do I think the only firearms protected by the 2A are military style rifles? No.

        Are military style rifles specified as being protected in miller, and in Hellers reference? Yes.

        Is it illogical to ignore that? I think so.

        Is there a disconnect between the SC rulings and applicable state and local law? It looks that way to me, but as reason magazine points out, they seem loathe to hear cases that would settle the matter, and when they do, their rulings have no teeth.

  13. Google “The Real Second Amendment” for the actual history, intent and meaning.

    No, Rob. YOU need to learn English sentence structure. Then you only need read the amendment and define words as they were defined at the time. Then you shall see the light.

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  15. “…clarify the boundaries of the constitutional right to arms.”

    Let me be perfectly clear. Per the 2nd Amendment, ALL laws on guns, knives, and other arms are unconstitutional. No matter what the text of such laws say, they’re all infringements on the right of American citizens (AKA The People) to be armed.

  16. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

  17. The United States has had many GI that was under the age of 18. Most handle themselves and served and made those who were at home proud. Many of those are in the service now and had to face death every day and in the more recent wars they also did not from which direction that death would come.CHEAK HERE

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