Second Amendment

Supreme Court Should Clarify Second Amendment Test

Challenge to ban on interstate handgun sales would be a good vehicle.

|The Volokh Conspiracy |

Today I filed an amicus brief in support of the cert. petition in Mance v. Whitaker. The case is a challenge to the federal ban on interstate handgun sales. But more importantly, it is a good vehicle for the Court to clarify how lower courts should review Second Amendment challenges.

Background: In 1968, the federal Gun Control Act banned interstate retail handgun sales. The statute also banned interstate retail long gun sales, except for contiguous states that enacted legislation authorizing such sales. In 1986, Congress passed the Firearms Owner's Protection Act, which relegalized interstate long sales, provided that the sale complies with the laws of both states.

For purposes of these federal laws, the District of Columbia is treated like a state. There are no gun stores in the District. In order to acquire a handgun, a D.C. resident must visit a store in another state, and pay for the gun there. Then, the store will ship the handgun to the one person in Washington, D.C., who is allowed to transfer the handgun to the D.C. resident. The man holds a Federal Fireams License (FFL), and operates out of a tiny office in the D.C. police building. He has no inventory, and charges a $125 fee for processing the transfer.

Case history: Alan Gura, winning attorney in the Heller case, brought a suit against the interstate sales ban in federal district court in Texas. Plaintiffs are a husband and wife who live in D.C., plus the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA).

The district court applied strict scrutiny, and held that the sales ban violates the Second Amendment. A Fifth Circuit panel reversed. A petition for rehearing en banc was rejected by an 8 to 7 vote.

Amicus brief: The amicus brief was written by Colorado attorney Joseph Greenlee and me. Amici are ten law professors who teach and write on the Second Amendment. Most of them have been cited by the Supreme Court, and they are oft-cited by lower courts as well. The professors are: VC's Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham),
Nelson Lund (George Mason), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell). Organizational amici are the Independence Institute, where I work, and the Millennial Policy Center, a think tank where Greenlee is a Fellow.

The brief addresses a problem that has been discussed in a number of previous cert. petitions: many lower courts have been defying Heller. The amicus brief addresses the problem with a broad and systematic review of doctrinal problems and conflicts in the lower courts. Here is the Summary of Argument:

Over a decade after this Court's decision in District of Columbia v. Heller, lower courts are struggling to interpret and apply it.

Lower courts disagree over what test to apply to Second Amendment challenges. Although nearly every federal circuit court has adopted the Two-Part Test, many judges—in the Fifth Circuit and elsewhere—believe the Text, History, and Tradition Test is more appropriate. As they point out, the Text, History, and Tradition Test is the one used in Heller and McDonald v. City of Chicago.

The Two-Part Test is an interest-balancing test; such a test was expressly rejected in Heller and McDonald. It meshes poorly with Heller's list of presumptively lawful gun laws and has created much confusion.

Some major lower court cases have used the Two-part Test to treat the Second Amendment as a second-class right. They defy Heller by using a rational basis test for laws against law-abiding firearms owners and gun stores. They allow the government to prevail on thin or conclusory evidence. They apply a feeble version of heightened scrutiny that does not consider less burdensome alternatives. Each of these problems is manifest in the opinions below in this case.

Assorted lower courts expressly hew to the narrowest potential interpretation of the Second Amendment, pending further precedent from this Court. Development of Second Amendment jurisprudence is abrogated without additional guidance by this Court.

This Court should grant certiorari to state the appropriate test and to clarify issues within that test.

The government's response brief is due January 22, so if cert. were granted, the case would likely be heard in the Fall of 2019.

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125 responses to “Supreme Court Should Clarify Second Amendment Test

  1. Pondering the future of the Second Amendment …

    Many have assumed the Supreme turned down all 2A cases because neither the 4 conservatives nor the 4 liberals were sure enough that Kennedy would be on their side. Presumably Kavanaugh is more sure. But I wonder about Roberts. The penaltax decision makes me wonder if he might shift into Kennedy’s fence-sitting position and rule whichever way maintained government control.

    But I also wonder if politicians are scared to death of actually eviscerating the Second Amendment for fear of a backlash from the 40+ states that support it. Some people think that might provoke a new constitutional amendment to clarify the RKBA (because “shall not be infringed” isn’t clear enough) or even a constitutional convention for the same end.

    1. While we’re at it, we might as well clarify that the right to put one’s penis in another man’s anus is inviolate. That’s the way the left “interprets” the constitution anyway

      1. Well sure, as long as the other man consents. Why wouldn’t it be?

        1. jph12: “Why wouldn’t it be?”

          Please don’t feed ARWP on this. It’s kind of his thing.

        2. The Constitution is for things that are important. Gay sex is not.

          1. It is to the couples involved.

            -dk

          2. You sure seem to think gay sex is important. Based on your comments, I’d guess that you think getting rid of gay sex is the most important thing in the world.

      2. You are confusing the right to persue happiness with the right to bear arms. Perhaps we need to create a new kink of putting a gun in another man’s anus while giving him a blow job. It could become popular in places like San Francisco and before you know it, background checks, waiting periods and purchases per month would be abolished.
        Now, there *might* be some confusion with the term “gun oil”, but it is a small price to pay for freedom.

  2. They’ve been defying Heller because the Court has been signaling that it approves of them doing so, or at least doesn’t mind, by refusing certiorari to so many cases.

    1. They aren’t “struggling” to apply Heller; they’re outright refusing to!

    2. Brett:

      Or they may not have 5 votes for any particular interpretation of the Second Amendment.

      I bang this drum with you fairly often, but this is another example of how there isn’t any pure “meaning” of the Constitution– rather, there’s a decisionmaking tribunal (the Supreme Court) which uses various methodologies to develop constitutional doctrine based on the document’s broad pronouncements.

      You have to understand that from the standpoint of the common law legal system– which is constitutionally mandated– badly splintered Supreme Courts are basically the worst thing in the world. This is why Chief Justice Marshall got rid of seriatim opinions– you can’t figure out what the Court held, and lower courts and lawyers can’t apply the splintered opinions to decide other cases.

      The Supreme Court justices know this– they know their jobs well. So often when they know there’s a badly splintered court, they just don’t grant cert. because if they do it will just make a mess.

      1. When there’s a circuit split in a civil rights case, shouldn’t they really find whether there are 5 votes by taking the case and arguing it out? Not just saying “Well, we’re going to let people continue having their civil rights violated until we can decide in advance how we’re going to rule without having the case argued before us”?

        1. I really dislike calling people stupid, but you are close to it.

          Knowing that the Court’s position is splintered is not nearly the same thing as “deciding in advance how to rule”. For decades, everyone has known almost precisely what the vote count on abortion cases has been, for instance. But only a complete idiot would say they are “deciding abortion cases in advance”.

          You should really stop commenting on the law. Because you do not know like basic “constitutional history for undergraduates” sorts of things about how courts work.

          I have to interpret cases for real clients for a living. And if your views about how the appellate courts were the law it would cost my clients a ton extra because of all the unnecessary confusion your stupid rigid rules would sow.

          Take a class in this, Brett. I am serious. Open your mind and learn. I am not asking you to become a liberal- just learn basic stuff like “how a 9 justice court of last resort has to work”.

  3. The thing is, even the Heller/McDonald decisions only upheld an extremely watered down version of the 2nd amendment. Replacing “every terrible implement of the soldier” with an “in common use” test that grandfathers in restrictions imposed during the 68 years the Court was refusing to take 2nd amendment cases.

    It’s as though the Brown Court had tacitly endorsed the constitutionality of Jim Crow laws on the basis that they’d been around a long while, and ignored that they’d been around because the Court had been refusing to enforce the 14th amendment.

    I wish Kopel the best of luck in this. It would be nice if the Kavanaugh appointment had tipped the Court back into being willing to at least partially uphold the 2nd amendment.

  4. “The case is a challenge to the federal ban on interstate handgun sales.”

    There is NOT a federal ban on interstate handgun sales and Prof. Kopel knows that.

    There’s a process that handguns can be transferred through an FFL, with a Form 4473 and a background check.

    But there is NOT a ban.

    1. Not a flat ban, you’re right, just an extra hoop and extra expense.

      1. Those are properly called infringements – – – – – – –

        1. We can talk about infringements but it’s disappointing that a law professor can’t use precise language–and instead does the opposite and uses loaded, untrue statements.

      2. Basically it looks like a tax, so Roberts will like it.

    2. He wrote

      banned interstate retail handgun sales

      I think many people wouldn’t consider having to go through a middleman within the buyer’s state when that middleman requires additional payment and a federal licenses to be a “retail” sale in the usual sense.

    3. If the same requirements were put on voting or abortion would you still claim it “…NOT a federal ban…”?

      1. I do keep suggesting that the rules there be clarified such that anyone who wants an abortion can get one, no questions asked, just by showing their concealed carry permit. Obviously, this will be easier for residents of, say, Arizona and Alaska than California, but well, CA can fix that by just going to constitutional carry.

        1. It’s comments like this that make me wish there was a like button. And I will be using this in the future.

  5. I am of the belief that lower court confusion should feature more strongly in Supreme Court cert reasoning. Circuit splits are overrated.

    Help the operatives – the judges in the trenches; conceptual doctrine can be a bit contradictory between judicial districts of for a while and the Union will remain.

    1. In this case, it’s not so much “confusion” as it is defiance. But I agree; The fact that the lower courts agree in getting something wrong should not a reason to avoid correcting them.

  6. what in hell can be more clear than “SHALL NOT BE INFRINGED”??!!

    According to the US Constitution, a citizen can damn well buy, sell, transport, keep, bear, and (Oh My God!) use any and all arms.
    Who would like to see an equal protection holding that a license and permit are required in order to exercise any other portion of the bill of rights? Can Trump request a press conference reporter to show his first amendment permit? Does a crooked politician need a permit to plead the fifth?

    1. Yes, this truly is the one area of law without nuance.

      1. Lots of areas of the law without any nuance, and judges just pretend the nuance into them. “No” law becomes no law without a good reason, shall not be infringed becomes shall not be extinguished…

        Well, that’s what you expect when the judges are hired by the people the Constitution was supposed to constrain.

        1. Great point?the 2A has no “nuance” it is just a funny little irony that a guy with a 206 IQ focused on it and developed the underlying rationale of Heller…it is almost like so “plain-spoken” that normal smart people simply ignored it for over 200 years . 😉

          1. Actually, it wasn’t ignored for over 200 years. Prior to the 14th amendment it didn’t apply to the states, and the federal government wasn’t into gun control, so it had very little application. But people still knew it was there, and what it meant.

            Then the 14th amendment comes along, and the Supreme court almost immediately issues a ruling defeating the purpose of the amendment, so it will wasn’t being applied to the states, and the federal government still wasn’t into gun control, so it had very little application, though it should have if not for the Slaughterhouse cases. And people mentioned that, though to no effect.

            The first real opportunity for application was with the NFA, which was deliberately crafted as a tax law because at the time they knew they couldn’t ban guns, and, why couldn’t they ban guns? Yeah, 2nd amendment, among other things.

            Then finally we get to US v Miller, but that’s after “the switch in time that saved 9”, and the Supreme court was out of the “restraining the federal government” business for the duration. And it was a setup with a dead defendant, in order to arrange for a trial in abstentia where only the government’s side would be argued, just to make sure.

            To be continued..

            1. And even then it wasn’t so much a repudiation of the 2nd amendment, as a “Hey, lower court, check to see if sawn off shotguns have military uses, because we just ruled that if they did, this bank robber would have a right to own one. Only he’s dead, so we didn’t hear any arguments on that point.”

              And the check doesn’t get done, because he WAS dead.

              Then the lower courts take a couple generations playing a game of telephone with the Miller decision, until they’ve got it stood on its head, while the Supreme court refuses all 2nd amendment cases, and infringements pile up. But even then it wasn’t until ’94 that Congress found the nerve to actually ban a gun, rather than engage in procedural trickery, because they knew the 2nd amendment got in the way of gun bans.

              Then finally everybody gets shocked when Heller wins at the lower court, and the Supreme court takes DC’s appeal, instead of ignoring it.

              But, that whole time, people knew what it meant. It’s just that for a little while towards the end there was a fad among lawyers of pretending it didn’t mean that.

              1. I actually agree with Cruikshank?our RKBA is a liberty interest similar to the right to privacy first posited by Brandeis in 1890. The 2A has little to do with right to self defense in the home with a gun.

    2. Um, if you are going to make a hyper-textual argument (“what in hell can be more clear than…”), you can’t then also add a bunch of words that aren’t in the Second Amendment.

      I mean, I can certainly ARGUE that the penumbras of the Second Amendment extend to sales, but penumbras, are not the same as constitutional text.

      Now, those of us who are not hyper-textualists have it easier, as we can reason through the various doctrinal justifications that might require some sort of right to buy and sell….

  7. “what in hell can be more clear than “SHALL NOT BE INFRINGED”??!!”

    How about “Congress shall pass no law”?

    1. Shall Not Be Infringed could be construed as applying to all legislatures and regulatory bodies and government employees. Congress Shall Make No Law is more narrow.

      1. True, but the poster too whom I was responding asked about clarity, not breadth

      2. Uh no, the prefatory clause makes clear that all citizens have the right in a free nation…that is why it is an individual right and not a federalism provision like Thomas believes the Establishment Clause to be.

  8. Yes, it’s outrageous what obstacles are put in the way of purchasing handguns. On the other hand it’s perfectly okay to place unreasonable obstacles in the way of a woman getting an abortion.

    1. One is given explicit protections as a right in the Constitution, the other right was an invention of an activist Supreme Court. I’ll let you decide which one is which.

      1. I’m fine with activist courts increasing the freedoms of the people, as with abortion.

        I am not fine with activist courts increasing the power of government to regulate and control.

        When in doubt, let freedom reign.

        1. That’s fine, as long as you don’t consider fetuses people.

          I consider them people.

          1. Do you consider those who might be killed by constitutionally protected firearms to be “people” too?

            Whom you consider to be “people” (and I might add, the argument that a blastocyst or a zygote is a “person” is a very questionable position) does not resolve the issue of whether there might be a right to “kill” them.

            1. “Do you consider those who might be killed by constitutionally protected firearms to be “people” too?”

              Yes, I do.

              1. Then you understand that fetal personhood, even if concedee, does not by itself prove there should be no right to abortion.

                1. There is no fetal personhood, there is only personhood. All people have rights, including the right to life. It would be up to the abortionist to prove that there is a right to abortion, and that can never happen with an honest interpretation of the constitution.

                  1. Doctors perform abortions, not abortionists, blastocysts aren’t “people”, and even if they were, people can be lawfully killed if they are intruders in self defense. And unwanted fetuses are intruders.

                    1. “And unwanted fetuses are intruders.”

                      That’s absurd.

                2. There is no fetal personhood, there is only personhood. All people have rights, including the right to life. It would be up to the abortionist to prove that there is a right to abortion, and that can never happen with an honest interpretation of the constitution.

                3. There is no fetal personhood, there is only personhood. All people have rights, including the right to life. It would be up to the abortionist to prove that there is a right to abortion, and that can never happen with an honest interpretation of the constitution.

            2. Do you consider those who might be killed by constitutionally protected firearms to be “people” too?

              Do you mean killed with constitutionally protected firearms? Because I think the number of people killed by them is negligible.

        2. And that is my biggest problem with Stevens’ Heller dissent. A justice that generally advances liberty took a strict constructionist view of gun rights in order to restrict traditional freedoms. So I find his dissent more intellectually dishonest than Scalia’s absurd majority that at least come to the correct conclusion albeit with tangentially limiting the right to privacy by ignoring it when it is clearly relevant. Stevens’ McDonald dissent is probably the best of the Heller/McDonald bunch even if pure partisan hackery undermines his otherwise thoughtful opinion.

          1. Except that it was a fake strict constructionist view. Not that Scalia’s was much more intellectually honest.

            It does say a lot about the popular status of living constitutionalism that Stevens felt he had to pretend he wasn’t engaging in it, when he knew people were watching.

            1. Stevens’ dissent is a real strict constructionist interpretation…Stevens just isn’t a strict constructionist. His McDonald dissent has an interpretation true to his judicial philosophy but the outcome is undermined by partisan politics.

              1. Yeah, but it’s a case of applying strict construction to (Carl T.) Bogus history. Stevens’ history sources were “researchers” who are paid to churn out propaganda, not real history. Like Saul Cornell, whose fraudulent work Stevens relied upon.

                There’s a whole industry or academic sub-culture in America devoted manufacturing fraudulent 2nd amendment history and criminology papers, to be used in promoting gun control. Whole law review issues have been purchased to this end, with the bill picked up by groups like the Brady Center.

                And I can’t say Stevens was an innocent victim of this propaganda; He was exposed to the other side during the Court’s debates and exchange of opinions, numerous amicus briefs exposed the problems with the sources he was using. It took a great deal of motivated reasoning to stick with the Saul Cornell version of 2nd amendment history in the face of all that.

                Note that I’m not painting Scalia as an innocent here, either. Stevens set out to totally abolish the 2nd amendment, but Scalia set out to neuter it. Neither had any time for the terrifying right the founding fathers bequeathed us.

                1. It sounds like you want the Supreme Court to be more like the papacy! Sorry, every conservative judicial philosophy incorporates tradition and traditionally arms have been regulated outside the home in even the most pro-2A communities. Your judicial philosophy is more like a radical conservative activist judicial philosophy with no concern for the consequences of your rulings…and no concern what the Constitution says either, lol!

      2. “One is given explicit protections as a right in the Constitution, the other right was an invention of an activist Supreme Court. I’ll let you decide which one is which.”

        Clearly in your opinion abortion is given explicit protections, since the notion that the second amendment grants individual firearm rights was the product of an activist Supreme Court.

        1. Actually Scalia sought to expand the right to privacy using the 2A as pretext so as not to expand the right to privacy. The right to keep guns for self defense has little to do with the 2A and it comes from traditional liberty interests or the right to privacy. The liberals attempted to limit the right to privacy by using a strict constructionist interpretation of the 2A as pretext for a partisan goal of the Democrats?gun control.

        2. The notion that the second amendment grants individual firearm rights was the product of our founders, who wrote that into the Bill of Rights. Explicitly saying that this is a right of the people should preclude any branch of the federal government and state governments from regulating arms people can possess.

          The Bill of Rights was passed as a whole, and should be interpreted this way. The tenth amendment actually incorporates states and individuals into the whole constitution which makes it clear that rights of the people are not to be restricted by the federal OR by state governments.

          The tenth amendment:
          “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

          1. Wait a second, you don’t think “free state” could refer to the several states and “militia” could refer to the state militias do you?? Because then the 2A would be explicitly referring to the states like the 10A. A real head scratcher.

          2. The notion that the second amendment grants individual firearm rights was the product of our founders,

            NO.

            The second amendment does not grant any rights, nor does it presume that government has the power to do so at all. It acknowledges the already-existing right to keep and bear arms, and forbids the government from infringing it.

            -jcr

    2. I’m in favor of the same ID requirements, background checks, waiting periods, government fees, licensing of providers, limiting availability, and all other regulations for abortions, voting, and guns. Are you?

      1. And don’t forget training/testing requirements. For voting, those would probably get rid of most of the voters. Of course, this might not be a bad thing. If someone doesn’t understand basic accounting and economics, how can they be trusted to vote for politicians who will be deciding what to spend where and where to get the money from?

        1. It would certainly eliminate most of the fairies who vote for the Democrat Party

        2. I’d settle for training/testing requirements for the people we vote on.

      2. No, I am not in favor of any of those requirements for any of those things. Are you?

        1. No, I’m not. But Second Amendment rights are subject to those restrictions while the other two are not. From your comment it appeared as if you had a problem with someone advocating against restrictions on guns that are so much more restrictive than anything having to do with abortion (or at least anything having to do with abortion that the courts will let stand).

          1. I don’t really have a problem with anyone advocating against restrictions for anything. I just find it a bit hypocritical to advocate against various gun restrictions, while advocating for unreasonable restrictions on abortion. Too much bad faith arguing on all sides.

    3. One is an enumerated right. The other can implicates the rights of two humans – the fetus and the pregnant woman. The fetus has an obvious right to life, while the right of the pregnant woman to end that life is not at all obvious. The real issue is whether the fetus is considered to be a “person.” Common sense says: yes, at least at some point of development prior to birth.

  9. I think clarification on the standard of scrutiny is important. But I don’t see a huge benefit from the core issue of the case if SCOTUS does rule in favor of freedom. At best it seems like it will benefit a few people in gun friendly states. I doubt if the Court will rule that a citizen of California can go to Arizona and buy a handgun.

    1. The main benefit is that it stops the gradual reversal of Heller/McDonald. The more anti-gun rulings accumulate before the Supreme court addresses them, the more reluctant the court gets to reverse them.

      1. Query?why was McDonald necessary when the 2A applies to all citizens in a free polity?? Were only citizens in federal territory truly free??

        1. It was necessary because the Slaugherhouse cases had ruled that the 14th amendment didn’t require the states to comply with any of the Bill of Rights, but only to a few specifically federal rights such as freedom of travel between states.

          So establishing that the 2nd amendment guaranteed an individual right didn’t, by longstanding precedent, mean anything for state governments.

          1. Except that Supreme Court doesn’t have to abide by precedent. So why would an amendment that plain-spokenly states it applies to all citizens in the nation require incorporation?? A real head scratcher wouldn’t you say?? 😉

            1. Riddle me this Sebastian Cremmington…why did many of the same folks who drafted and/or ratified the 2A add similar language in their state constitutions if the 2A applied to the states already?

              1. We know that Justice Marshall in Barron stated the BoR was limited to the federal government. He was a contemporary of the Framers so he could be wrong but it is unlikely. So that begs the question why the prefatory clause refers to all citizens of America?? Do you think maybe “militia” might refer to the several state militias and not to the unorganized militia??? Do you think maybe “free state” refers to the several states and not America?? I guess but the 2A is so plain-spoken that how could a guy with a 206 IQ get the definitions for those words wrong??

                And furthermore why would states adopt the language of the 2A and then tightly regulate handguns which are ideal for self defense outside the home?? Like I said, such a head scratcher.

                1. Given the amount of head scratching you do over very simple things makes me think you either have a significantly lower than 206 IQ or lice.

                  While it is true that at the time of ratification, carrying concealed weapons was considered a sign of evil intent, the carrying of weapons openly was not. Since you are of a mind to ask questions, how about you ask when exactly handguns were tightly regulated? I’m aware of no general regulations regarding handguns in the days of the early republic, much less when the 2A was ratified.

                  As to the prefatory clause, Prof Volokh himself has provided a thorough explanation as to the function of a prefatory clause. Prefatory clauses provide a justification for the operative clause, not a limiter on it. The operative clause defines the right and that right is protected for the people, not the militia. Had they intended to do so they’d have worded it “the right of the state militia…”.

                  As to “necessary to the security of a free state” uses “state” synonymously to “country”. Careful review of the history of our revolution and as well a careful reading of the Federalist Papers provides the reasoning behind the founder’s belief that an armed populace is necessary to the security of the country as a whole, both from threats foreign and domestic. They were very afraid of a standing army, preferring to rely upon citizen militias.

                  1. “God created man and Sam Colt made them equal!”

                    1836 is when Colt patented the revolver but Louisiana and Kentucky outlawed concealed arms in 1813.

                    So the intent of the Framers was to express that all citizens of America had the RKBA but it was still acceptable for the states to regulate guns?? So the Framers would have not considered Louisiana and Kentucky free states because they regulated concealed arms?? Or because they allowed open carry they were free states which means that concealed weapons regulations were constitutional??

                    Query?the Alien and Sedition Acts were viewed as unconstitutional when enacted and outrage ensued…did outrage ensue when Kentucky and Louisiana passed their concealed weapons bans??

                    1. A ban on concealed carry when open carry is completely unrestricted is not much of a burden on RKBA.

                    2. Even states like Texas with traditionally liberal open carry laws for long guns had some restrictions like carrying guns into bars. Also Texas’ own President HW Bush signed the federal school zone regulations into law and at the time I don’t remember Texans being outaged about him signing an unconstitutional law.

                      Cruikshank is correct that we have gun rights that predate the BoR…but we have also traditionally regulated guns outside the home.

              2. Ah, you’ve got the chronology of that backwards. Just saying…

                1. No I don’t.

                  1. David Lawson wrote: “Riddle me this Sebastian Cremmington…why did many of the same folks who drafted and/or ratified the 2A add similar language in their state constitutions if the 2A applied to the states already?”

                    He did get the chronology backwards. Admittedly, Reason’s commenting system makes it hard to tell who a reply is addressed to, at times.

          2. The only thing I would like to clarify, is that the Slaughterhouse cases were less important for limiting the meaning of the 2nd Amendment for several generations than was United States v. Cruikshank, another Reconstruction era case. Some like to cite it today because it says that the 2nd Amendment protects a pre-existing right, which to that end they are correct, but the case also said that state government’s did not have to do anything about an impingement upon it.

            1. The 2A is clear?it applies to all citizens. The 2A does not contain a qualifier like the 1A and the other amendments don’t contain language that clearly covers all Americans like “militia” and “free state”. Incorporation was unnecessary yet the Supreme Court incorporated it in McDonald?? So strange. 😉

              1. Given that the BoR were Amendments designed to limit the power of the Federal Govt, it is not so strange at all. All of these Amendments limit the Federal Govts power over either the individual people or the states. The US Constitution has very little to say about the states themselves until the 13th, 14th, and 15th Amendments.

                1. But the 2A has a prefatory clause that clearly refers to all citizens of America.

              2. The 2A is clear?it applies to all citizens.

                Wrong. It applies to the government. It doesn’t grant our right to self-defense, which is a human right that all people have, citizens or not.

                -jcr

                1. I agree with some of your comment but I am still wondering why an amendment that clearly refers to all citizens in America needed incorporation?? The Supreme Court had no problem overturning Cruikshank which was decided 8 years after the 14A was ratified but the Supreme Court chose to treat Barron as the proper interpretation of the 2A even though the 2A’s prefatory clause makes it different than the rest of the BoR.

                  Furthermore Cruikshank clearly says we have a RKBA and implies a right to self defense but nonetheless Scalia overturns that precedent and replaces it with a similar right found in the 2A. All Scalia had to do was uphold Cruikshank with respect to DC and then Alito could have incorporated Cruikshank. Or in the alternative overturn both Barron and Cruikshank and then incorporation is not necessary.

  10. I think the NJ magazine “hi capacity” ban would be a better vehicle for the OP’s proposition, but fights have to be fought when and where there are litigants and those willing to do the legwork for them.

    1. “High capacity,” Lol. Handguns have been sold for more than 30 years with standard capacity magazines holding more than NJ seems to think is reasonable.

      When I was younger, I wanted a Colt TriFire .45 caliber pistol. It came standard with a 15-round magazine.

      Screw NJ. I’ll gladly become a criminal before handing over any magazines or firearms deemed no longer acceptable.

      1. the Browning Hi Power was introduced in 1935 and has a magazine larger than they like

      2. The Henry lever-action rifle introduced in 1860 had a larger magazine than they like.

  11. That is weird because the text of the 2A is so plain-spoken?all citizens in a free polity have the right to own guns which of course is limited to federal territories pursuant the original intent of the BoR. So how did this law ever come to be when DC was one of the only places in which the 2A functioned prior to incorporation?? A real head scratcher. 😉

    1. It came to be because after the Miller case, the Supreme court spent about 68 years refusing to grant certiori for any case whatsoever where the 2nd amendment was raised as an issue by one of the parties. It was to the point where virtually nobody even bothered raising the 2nd amendment as an issue in federal court, because doing so guaranteed the Supreme court would refuse to take an appeal, while you might win against a gun law on other grounds, such as it being void for vagueness.

      This freed the lower courts to adopt an interpretation of the 2nd amendment which held it to only apply to possession of a gun in government service. And DC has long, long been completely controlled by the Democratic party, which has been anti-gun since its Jim Crow days.

      1. Wait, what about Texas?? Texas had strict regulations on handguns prior to 1995 and yet the state constitution had language similar to the 2A. I am so confused! 😉

        1. I’m so confused as to why each state had to have their own 2A if there was already a 2A in the US Constitution? Especially since at least a few of the 2A drafters also drafted their states’ constitutions.

          1. Because the 2nd Amendment in the Constitution didn’t apply to the states until the 14th Amendment was ratified.

            1. But why? Have you read the prefatory clause in the 2A?? The prefatory clause refers to all citizens of America, how does that only limit Congress and not create a national individual RKBA upon ratification??

            2. The tenth amendment specifically says the constitutional limitations apply to the states, and further says that the federal and state governments are not to limit rights of individuals.

              The tenth amendment:
              “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

              1. Right, and the 2nd amendment didn’t mention it applying to the states. Now, I think there’s a good argument that the language could be interpreted that way, but I see no historical evidence that they understood the bill of rights in that manner at the time they ratified it.

                1. Wait a second, I just looked at the prefatory clause and maybe “free state” refers to the several states and “militia” refers to the several state militias?? Are those definitions within the realm of possibility for those two particular words in the context of an amendment that Chief Justice Marshall believed was limited to the federal government?? Such a head scratcher. 😉

                  1. Sure. Because the chief concern here was that the new federal government would attempt to deprive the states of their ability to raise militia, by setting out to disarm the people that they’d raise a militia from.

                    The states had their own RKBA clauses in their own constitutions.

                    1. No, the “chief concern” was a repeat of Lexington and Concord in which the British attempted to capture a militia’s military supply in order to disarm the militia.

  12. Washington State just passed a law that bans the sale or ownership or handling of a semi-automatic gun by anyone under 21 years of age. Semi-automatic does’t include just ARs, but any semi-automatic gun including .22 rifles. Seems like that would be a good law for the Supremes to take – limits the 2A rights of 18-21 year olds.

    1. They can always vote and authorize government agents to use guns on their behalf, what more do they want?

      /sarc

      1. That would be just super, especially if the authorized government agents would just show the hell up when their guns are critically needed. Ask the kids at Parkman how that worked for them.

  13. Here is the reality?Americans have a right to keep guns in their homes for self defense and they have more limited gun rights outside the home. Traditionally states have had great leeway to regulate guns outside the home pursuant Barron and the general police power although obviously some right to carry exists because we must be able to bring guns home we buy from gun stores which are ubiquitous (a quick Google search showed multiple gun shops in Chicago).

    Also machine guns have been subject to long-standing restrictions that have effectively taken them out of common usage so that is an example of a gun regulation that survives constitutional muster. Another common regulation that would survive constitutional muster would be Texas’ law that prevents 21 year olds from purchasing handguns.

    Judges are free to use this cheat sheet in future cases while I am sure a judge like Reed O’Connor will ignore it so he can get his name on right wing websites.

    1. I love the circular logic of a ban on machine guns being okay because they aren’t in common usage because of the ban on machine guns.

      By the way, what other enumerated rights do you agree with the idea that they they only apply in the home? The right to an attorney but only if you’re under house arrest?

      The right to be free from unreasonable searches and seizures while you are at home?

      The right against self incrimination while the police are questioning you at home?

      The right to free speech in your home?

      The right to worship as you please at home?

      Do you hoplophobes even think before spewing such drivel?

      Just because the Second Amendment has been treated like a red-headed stepchild in the past doesn’t justify a continuing violation of rights.

      1. Uh no, a conservative justice looks to tradition?justices from Rehnquist to Kavanaugh have stated “tradition” informs their judicial philosophy. The notion we dismiss with tradition leads to judicial activism like Roe v Wade and Obergefell. The reality is in the period the Framers were alive arms were highly regulated outside the home so a conservative judicial philosophy must respect how guns outside the home have traditionally been treated.

        So in a pro-gun state like Texas, that has language similar to the 2A in its constitution, for well over 100 years handguns were regulated to such a degree that they were illegal outside the home except with a few exceptions…we must respect that tradition.

      2. Interesting that in your rundown of amendments, you don’t mention the Fourth Amendment, which, of course, applies much more vigorously in the home than in other localities.

        1. And that goes to my point about the 2A and incorporation. The 4A clearly refers to a law enforcement agency which of course the feds have with the US Marshals that work with US Attorneys both created in the 1789 Judiciary Act. The Constitution creates the federal judiciary which is limited by other BoR amendments. The Constitution also creates the federal army which the 3A limits. The 1A specifically limits Congress created by the Constitution. So in that context it is pretty obvious what the BoR amendments are limiting because the feds had Marshals that needed to be limited and courts that set bail that needed to be limited and a legislature that needed to be limited.

          But why was the 2A limited to the federal government when it has a prefatory clause that refers to the militia (all citizens) that reside in America (free polity)?? Doesn’t it seem strange to you that the Framers intended that amendment to be limited to prohibiting the federal legislature from drafting arms control measures while merely granting the RKBA to residents of federal territories??

          1. It didn’t only apply to residents of federal territories. It applied to federal action against any citizen in any state or territory.

            What it did not apply to was a state govt within its own territory. Because of that, states had a 2A in their own constitutions.

            It wasn’t until the Civil War and its aftermath that we decided to empower the Federal Govt to protect any citizen of any state from having their rights abridged by that state govt. Hence the 13th, 14th, and 15th Amendments.

            1. Except the 2A doesn’t say “Congress shall make no law abridging the RKBA”. The 1A clearly refers to “Congress” which was traditionally the proper name of our legislative body. The other amendments in the BoR don’t use the proper name of the US Marshal and US Attorney or the US Army but it is obvious what type of federal agency they would be limiting going forward. Instead the 2A has a prefatory clause that Scalia asserts refers to all citizens in America. And yet in Barron it was understood the BoR applied only to the federal government. How does the prefatory clause jibe with the fact the BoR was limited to the federal government??

              1. Simple…the 2A protects the RKBA of the people from the entire Federal Govt.

                Really, this isn’t rocket science.

                1. Then why did it take a guy with an IQ higher than every rocket scientist in America to develop the underlying rationale for Heller??

              2. What is strange is that apparently the 1A was originally intended to only limit Congress. I guess they didn’t have much executive branch to worry about at the time

                What is also strange is that the very same generation that drafted and ratified the 1A had no problem with the Alien and Sedition Acts.

                1. Same generation, but NOT the same faction.

          2. An especially cogent point. If the 2A was meant to apply to militias, virtually all militias were state, even local, creatures at the time the BOR was adopted. The framers had to know that. So the 2A automatically applied to the states. The Miller interpretation would not prohibit the federal government from anything.

            1. But then why would it need incorporating if upon ratification it applies to all citizens in the nation??

        2. I’m pretty sure “The right to be free from unreasonable searches and seizures…'” refers to the f\Fourth Amendment. But if I’m sitting on a bench at the park minding my own business while holding my locked brief case do I not have the same right to be free from unreasonable searches and seizures as I do while at home?

  14. Liberals are just disgusting, evil people. It’s that simple.

  15. Cops have guns.
    The only way the cops have that power, is a result of the people transfering the power they have to their employees.
    If the People dont have that power, then the cops cant have guns.

  16. Th Minnesota Supreme Court has gone even further and has treated Justice Scalia’s dicta in Heller as a rule of exclusion. That is, if a potential gun owner falls within a category such as “mentally ill” or “criminal”, he or she is automatically excluded from gun ownership.

  17. There is nothing to clarify. The constitution states in the Bill of Rights it is one of the rights. A right is god given, not a privileged granted by the government. The amendment states you can own a gun. What is so hard to understand it needs clarification?

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