Free Minds & Free Markets

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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  • Scarecrow Repair & Chippering||

    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?

  • Robert Riversong||

    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.

  • wearingit||

    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."

  • mad_kalak||

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

  • mad_kalak||

    Hiln, it was already readily established in previous threads, that you never read past page 2 or 3 of the Heller decision. The 2nd Amendment protects an individual right, which which is why it uses the phrase the right of "the people" the same as in the 1st, 4th, and 9th Amendments. What do you say about that? Because the "the People" in the 4th amendment is clearly an individual right, there is can never be a collective right to papers and effects.

  • BigChiefWahoo||

    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.

  • damikesc||

    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.

  • Azathoth!!||

    The right to life is paramount as there can be no liberty if one lacks life.

    The fetal childs right to life is a temporary inconvenience for the woman who forced the matter.

  • damikesc||

    The woman's Right to Liberty is unalienable -- as is the fetal child's Right to Life.

    You're aware those two comments are in utter conflict, right?

    Pointing out that courts seem far more concerned about rights not mentioned in the Constitution than rights mentioned specifically in it is simply stating a fact.

  • damikesc||

    I can cut and paste as well.

    Pointing out that courts seem far more concerned about rights not mentioned in the Constitution than rights mentioned specifically in it is simply stating a fact.

    I don't see the benefit in doing so, but with you, it is fitting.

  • ||

    What happens when two absolute rights are in conflict?

    They never are

    Which prevails? Who decides? And why?

    See above

    (You need not know the answers. Merely ACCEPT the genuine conflict between two absolute rights)

    No I don't.

    The woman's right to liberty and the fetus's right to life never conflict, because there is no liberty to kill an innocent life. End of line.

  • loveconstitution1789||

    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.

  • loveconstitution1789||

    Hihn hates Libertarians and their drive for small limited government.

  • Brett Bellmore||

    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.

  • loveconstitution1789||

    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.

  • Robert Riversong||

    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.

  • Old Mexican - Mostly Harmless||

    Re: Michael Hindered,

    What other right was 'created', according to you?

  • Brett Bellmore||

    But, as has been explained to you repeatedly, the Miller court remanded to the lower court for a determination as to whether a sawn off shotgun had military uses, with Miller to lose if it didn't.

    The Miller decision actually stands for the proposition that what is protected is the private (Miller was certainly not in the military, as a felon he wasn't even in the general militia.) ownership of weapons suitable for militia use.

    That bit about "modern developments have limited the degree of fit between the prefatory clause and the protected right" is something Scalia pulled out of his ass, because the right the 2nd amendment was written to protect was just too scary for modern judicial taste, and had to be replaced with something he could get 5 votes for. He didn't want a ruling that would visibly obligate the Court to undo the 1984 ban on civilian machine guns.

    So he lied about the holding in Miller. Not his finest day.

  • loveconstitution1789||

    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.

  • Leo Kovalensky II||

    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 tradi­tion 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.

  • Azathoth!!||

    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.

  • Ken Shultz||

    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.

  • Ken Shultz||

    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.

  • Leo Kovalensky II||

    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".

  • loveconstitution1789||

    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.

  • Leo Kovalensky II||

    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.

  • loveconstitution1789||

    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.

  • Leo Kovalensky II||

    Your link didn't work for me, but I can assume it's the one you've posted multiple times. You ignore this part of Scalia's language in Heller:

    Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in­terpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

    So we can (hopefully) establish that it's not just the exact types of guns used at the founding.

    It's bogus to assume that "hunting rifles" are the only types of arms allowed though, because hunting rifles are defined typically by government. If we took that position, government could define that all hunting must be done by bow and arrow... a position that no reasonable person would ascribe to upon reading 2A. (cont...)

  • Leo Kovalensky II||

    We have to look at the relevant case at hand. Heller was specifically litigated with regards to the DC handgun ban. We can see from that decision that semi-automatic handguns are allowed, which are not hunting rifles, nor in use in the 18th century (but quite usual today). You're misinterpreting Heller based on narrow language, and not the case and decision at large. Scalia also uses the language "dangerous and unusual weapons" to define what has been historically regulated. Clearly an AR-15 is not unusual (they are commonly owned). Dangerous is of course nearly impossible to define, shotguns and handguns can clearly be as dangerous (or more so depending on the circumstance) but we agree that they are allowed.

  • Brett Bellmore||

    I'm pretty sure dangerous in that context meant weapons that were liable to explode in your hand, or otherwise harm somebody besides the intended target, like a hand grenade. Because, of course, in any other sense all guns are "dangerous".

  • damikesc||

    Did you actually read anything after the word "frivolous"?

  • mad_kalak||

    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!"

  • loveconstitution1789||

    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.

  • mad_kalak||

    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.

  • loveconstitution1789||

    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.

  • mad_kalak||

    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.

  • loveconstitution1789||

    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.

  • Leo Kovalensky II||

    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.

  • loveconstitution1789||

    Article V state led constitutional convention is coming soon.

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

  • Leo Kovalensky II||

    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?

  • loveconstitution1789||

    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?

  • Leo Kovalensky II||

    "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!

  • Ken Shultz||

    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.

  • mad_kalak||

    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.

  • Jerryskids||

    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.

  • loveconstitution1789||

    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.

  • Azathoth!!||

    You do not 'bear' a battleship.

    A battleship is NOT a weapon. It is the platform on which your weapons are borne.

    And you KEEP ordnance.

    And, be honest, you don't need to laugh.

  • Cyto||

    Seriously. The difference between "this is what the law says" and "this is a good idea" is pretty stark, but seems to escape most people.

    Keeping and bearing tactical nuclear weapons is a bad idea. But the plain language of the constitution is "not infringed". You have to jump through a lot of mental hoops, adding in a ton of unstated conditional phrases to the constitution in order to get it to read any other way.

    But we can't have discussions that work that way. Even on the supreme court, they start with "what would be the consequences of this" and work backward to get the desired interpretation.

    It is perfectly consistent to say that the federal government doesn't have the power to restrict gun ownership in any way and there should be federal limits on gun ownership.

    We have had 5 constitutional amendments since 1960, so it isn't like it is impossible to get one passed.

  • Cyto||

    I says "because we want this" the government can't infringe the right to keep and bear arms.

    Not "only for the use of this". That wouldn't even make any sense.

    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.

    Deconstructing this sentence:

    1. We want a free state.
    2. In order to have that free state, we'll need a well regulated militia.
    3. Therefore, the right of the people to keep and bear arms shall not be infringed.

    The first two phrases are "why". The last bit is the what.

    The what is "the government cannot infringe the right of the people to keep and bear arms".

    At all. Not be infringed. It doesn't say "unless we think it is a good idea". It doesn't say "except if the arms are scary looking". It just says 'shall not be infringed."

    That is a blanket statement.

  • Cyto||

    We have added on an unstated "unless we have a problem with people being armed, then we can do some infringing".

    "what does the law say" and "is this a good idea" are two separate questions. Unfortunately, separating them leads both sides to uncomfortable positions, so we don't do it.

    (Nobody wants to face the hurdle of passing a constitutional amendment, so the gun control lobby avoids that. And if we moved on to an amendment instead of passing laws, the people opposing gun control would lose a useful shield - right now they can talk about rights... but if we were arguing about an amendment they would have to defend the utility of those rights in the face of murdered kids, not an attractive prospect.)

  • loveconstitution1789||

    Exactly Cyto. People having nuclear and biological weapons are probably not good ideas, so Americans can add an amendment banning those.

    Otherwise, its all armaments.

  • loveconstitution1789||

    18th century "battleships" were operated by Americans called privateers.

    I know you're a dumb dumb Hihn but the 2nd Amendment is not rocket science.

  • loveconstitution1789||

    I understand you have a list? Am I on it?

    Citizen said he was #6 on that list.

  • Old Mexican - Mostly Harmless||

    Re: Michael Hindered,

    The Constitution doesn't bestow rights. If you have the money, what should stop you from purchasing a battleship? What should stop me?

    Your negative opinion for particular good A or B is not argument to prohibit me or anyone else from possessing A or B if the acquisition was done voluntarily and peacefully. Yes, even if it were a nuclear device. Those are convenient red herrings.

  • Rebel Scum||

    P.S. How does one "bear" a battleship?

    There were privately owned frigates at the time. Frigates are warships. Ergo, constitutionally speaking, I have a right to mount a howitzer on my boat. Kindly fuck off.

  • Rebel Scum||

    legal precedent

    Is not necessarily consistent with the Constitution.

  • loveconstitution1789||


    Legal precedent also allowed blacks to be treated as second class Americans after the 13th Amendment.

  • Robert||

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

  • Jima||

    I see what you did there...nice.

  • Ken Shultz||

    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.

  • Cyto||

    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)

  • Cyto||

    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.

  • Cyto||

    No, the Bill of Rights are the first 10 amendments to the constitution. The body is the part that comes before the amendments.

    The rights of the states are delegated by the people via the state constitutions, not from the federal government.

    You are right in that people have rights. We have those rights with or without a government. We grant certain limited powers to the state government via the state constitution which allows them to supersede those rights of the people under limited conditions. The states and the people similarly grant certain limited powers to the federal government via the federal constitution. But they only get those limited powers. No others.

    That is what the quoted text means.

    It also leads to interesting discussion of "what are the legitimate powers of a government?" Since governments can only get their powers from those granted by the people, it would stand to reason that the people cannot delegate a power that they do not inherently possess. Hence, legalizing slavery is not a legitimate power for the government.

    Following that logical thread down the rabbit hole will get you to a whole list of dubious powers claimed by our current governments.

  • Cyto||

    That's what I'm saying.

    The 14th amendment makes the 9th and 10th less clear, because it says that the rights of the US constitution tie the hands of the states.

    It would have been much cleaner had we had the courage to abolish slavery from the jump. I'd say that other than the fact that it encodes a nod to slavery, the rest of the constitution as ratified, plus the 10 amendments of the bill of rights was enough to abolish slavery anyway.

    But then they would have only had a half a country.

  • loveconstitution1789||

    The one good thing about the 14th Amendment is that the BoR sets up a minimum standard for state constitutions.

    Even though the Founders hoped states would be more answerable to the people and protect natural rights, like self-defense, they could not plan for the amount of authoritarians living in the USA.

    Actually, I take that back. They did plan for that and openly advocated revolution to defeat the authoritarians with armaments and restart a small and limited government under the Constitution.

  • Brett Bellmore||

    Hihn, you do realize that the 14th amendment came after the 9th amendment, right?

    Do you know what "amend" means?

  • Brett Bellmore||

    Well, not really, because of the lack of a federal general police authority, and the Bill of Rights only applying to the federal government until the 14th amendment. Slavery within a state was clearly beyond the reach of the federal government.

    They could and did ban the import of further slaves at the earliest date permitted, but that was the extent of it without an amendment.

    The problem is that they thought slavery would go away on its own. It might have, too, if not for the cotton gin.

  • mad_kalak||

    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.

  • Cyto||

    An excellent point.

  • mad_kalak||


  • mad_kalak||

    Don't ask me to defend the Slaughterhouse Cases, I'm not doing that, nor how it took about another 75-100 years after the passage of the 14th Amendment for it to have teeth.

    The Founder's idea of federalism is different than yours, to be sure, but that's why we have an amendment process.

  • mad_kalak||

    Sadly, those conclusions are the product of the limited understanding of the issues in which you are debating. But carry on then.

  • loveconstitution1789||

    He said, gun ownership was a federally protected right under the constitution before the 14th Amendment. All 13 original states protected the rights of the people with regard to arms. The 14th Amendment forced the states to protect the gun rights of every American not matter what the states wanted.

  • loveconstitution1789||

    Did not say that. Keep making stuff up.

    How about that list?

  • Rebel Scum||

    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.

  • philippes||

    "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.

  • Ken Shultz||

    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.

  • Leo Kovalensky II||

    "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).

  • Cyto||

    "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.

  • Fist of Etiquette||

    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.

  • Cyto||

    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".

  • mad_kalak||

    Okay, usually it's not worth it to engage you. But where on earth do you get the idea that 60% of the electorate is libertarians?

  • mad_kalak||

    I can see why you make such startling bad conclusions on the 2nd Amendment. While the survey does show that the label "libertarian" causes a drop off in support, just getting 59% of people to agree to the premise that they are "fiscally conservative and socially liberal" does not make 59% of the public libertarian in their actual policy views.

    Appropriate scales have to be created, as the very article you link to says: "In all of these calculations, we use a broad definition of libertarian. Certainly we are not claiming that 15 percent of American voters have the deep and well informed commitment to liberty and limited constitutional government of Cato Sponsors or Reason magazine readers. Rather, we include both individuals who would self-identify as libertarian and individuals who hold generally libertarian views but may be unfamiliar with the word. It is clear that many people who hold libertarian views don't identify themselves that way. One Rasmussen poll found that only 2 percent of respondents characterized themselves as libertarians, even though 16 percent held libertarian views on a series of questions."

    So, yea. It's more like 15-16%, not 60%.

  • mad_kalak||

    You said "60% of the electorate" is libertarian. Saying one is "fiscally conservative and socially liberal does not make one libertarian." Don't go all Socratic now and ask "what is libertarian, really?" to try to wiggle out of what you said.

    And what kind of pedantic, autistic foolishness is it to say "there are no libertarian policies." Here is a link to the Libertarian Party's 2016 platform....sure looks to be full of policies to me.

  • mad_kalak||

    Hiln, you're like a carnival game. Every time I hit the gopher showing he is wrong, he pops up out of another hole. I only wish I earned tickets for doing it so often, I might be able to get myself some neon green shoelaces or a teddy bear.

    The article itself says "A robust 44 percent of respondents answered "yes" to that question, accepting a self-description as "libertarian." Let alone the 15% who hold actual policy positions.
    In Hiln world, does 60=44=15?

    So the Libertarian party platform has no policies, like for example, when it says; "We support full freedom of expression and oppose government censorship, regulation or control of communications media and technology."

    Whoo-kay. Then pray tell, what is a policy in Hiln world? Keep in mind when answering, that not wanting a law to deal with an issue is as much a policy as wanting a law to deal with a particular issue. Thus "opposing government censorship, regulation, or control of communications media" is indeed a policy in the very essence of the word.

  • mad_kalak||

    I note how you didn't address the question where we are to find out what a policy is in Hiln world. Does it make you uncomfortable to be proven wrong, then when you pettifog on your reply, be proven wrong again? *shhh* Don't answer, we already know.

    As for your other half-hearted attempt at a rejoinder, please know that you are not the center of the universe. Hiln doesn't get to define the world libertarian for the rest of us. For that matter, neither does CATO. Nevertheless, CATO says, in said survey, quite clearly, that 44% of respondents self identify as libertarian. I'll take their word for that. 44% =/= 60%
    Being willing to say that one is "socially liberal but fiscally conservative" does not make you a libertarian. People are willing to say an awful lot to pollsters that aren't true and not what they actually think or feel, witness the shock and dismay of the pollsters in November of 2016 if you think that this isn't the case. Go ahead, please tell me that nobody ever lies to a pollster, or never understand the connotation of what they are saying yes or no too. Tell me the polls are always right. Go ahead, I dare you.

    Further, when actual policy questions were asked (you know, the kind that according to you don't actually exist, but did for the ones doing this CATO survey) only 15% are actually libertarian based on those reponses.


    Bold and caps lock don't make what you say any more right. I'd think you'd figured that out by now.

  • mad_kalak||

    Since I have children, I have lots of experience dealing with someone like you. Saying that you're "fiscally conservative but socially liberal" does not make you a libertarian. One CATO survey from 11 years ago where they get 59% of the respondents to say that, does not make 60% of the electorate libertarian, when only 44% self describe as libertarian, and only 15% support libertarian policies. Further, let me give you the definition of Libertarian from the Merriam-Webster dictionary:

    Definition of libertarian
    1 :an advocate of the doctrine of free will
    2 a: a person who upholds the principles of individual liberty especially of thought and action
    b: capitalized : a member of a political party advocating libertarian principles

    Now, since you refuse to acknowledge that polls are sometimes wrong, or skewed, or even that push polling exists, and even worse that people ARE hypocrites (as in they will say they are socially liberal but fiscally conservative, but not be so in actuality) then please so me where in the objective definition of libertarian from a respected dictionary, that the one and only definition that we may ever use for what a libertarian is, is some survey from CATO like a decade ago.

    And finally, Oh Mikey, what a case of projection we have here if you're accusing me of being a cyberbully or stalking. You lob lowbrow insults like a fat guys eating chips, and I engage in a little witty banter and you call it verbal hostility. Sad!

  • MJBinAL||


    I have been reading your posts for a while. You are indeed prolific (although you re-post the same text pretty often) and you certainly have mastered use of writing in all boldface caps.

    You have some very creative interpretations of the constitution supported by some versions of history that differ from any other history I have ever read (and I like and read a lot of it).

    My only conclusion is that you live in a different world from the rest of us. A world where history took place differently, language is interpreted differently, and good manners either do not exist, or follow entirely different customs than ours.

    So, tell us about your world. Is your sky blue? Your grass green? Rather than try to do what so many have tried to do before, make sense of your posts, perhaps we should just learn more about your world. Then at least we can decide if you live in another world, or are just mentally unhinged.

  • Cyto||

    the right of the people to keep and bear Arms, shall not be infringed.

    It is in the plain text of the constitution. You don't have to resort to any supreme court precedent. Any precedent that says that you can indeed infringe the right of the people to keep and bear arms is at odds with the constitution.

    It is a much easier argument to say that the states are free to restrict and regulate that right to their heart's content while the federal government is completely powerless in this area. It would certainly be plausible that everyone involved in ratifying the constitution understood that the city of Boston could prevent people from installing cannons on their roofs, even if the federal government could not.

  • Leo Kovalensky II||

    "It is in the plain text of the constitution. You don't have to resort to any supreme court precedent. Any precedent that says that you can indeed infringe the right of the people to keep and bear arms is at odds with the constitution."

    If only it were that easy. The judiciary is required to clarify what the language means. As you can see just from the limited perspectives represented here, it's nearly impossible to agree, which is why we entrust the SCOTUS to interpret the language. Precedents are important because they drive consistency in that interpretation (at least they are supposed to).

    No other constitutional rights are absolute. Even freedom of speech/press is limited by libel and slander laws. You haven't addressed Hihn's point at all on this one.

  • Cyto||

    I'm arguing with reality. In reality we decided that it was inconvenient to follow the letter of the law.

    In my version, we'd follow the letter of the law and fix it as each of these edge cases comes up.

    And as for freedom of speech - those laws don't limit speech, they limit things that you can do that involve speech. Although there are a ton of grey areas in there.

    Similar to outlawing murder, or pointing a gun at someone to threaten them. Having the gun isn't the illegal part. It is shooting someone that runs afoul of the law.

    I'm under no illusion that my version is practical. It would require thousands of amendments to properly legitimize the current US federal government. Most of what they do falls outside the enumerated powers.

    But there is a big difference between "clarifying" language and inserting a giant "unless we really need to" clause right after "shall not be infringed" or "shall make no law".

    Even if we really do need to.

  • Cyto||

    Also, you seem to be reading the constitution backwards.

    The constitution is a list of powers granted to the federal government. All other powers are reserved to the states or to the people. The list of rights is more of a clarifying addendum, saying "we mean you can't do this". That is what that phrase is referring to. People actually debated whether the bill of rights was a good idea, because they worried that it would make people think that the government could do everything except what was on the list. So they added that bit to underline the fact.

    Of course that position is something of a non-starter, since we long ago decided that it was far too much trouble to go and get a constitutional amendment every time you wanted to grant a new power to the government. Better to just pass the laws and rationalize away the constitutional issues with court precedent.

  • Leo Kovalensky II||

    "Heller reaffirmed the 1939 precedent, that 2A protects only those weapons in common use at ratification, brought from home for militia service."

    Hihn, I think you've misinterpreted Scalia based on the introduction of the ruling and not the body.

    Scalia points out the error in Heller (pg 8 of your link):

    Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in­terpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

    The distinction is important. Common firearms now, semi-automatic rifles or handguns for instance, are supported by this position. Your contention appears to limit the militia to using muzzle loaders.

  • Leo Kovalensky II||

    I should add that I don't think it's your contention that only weapons in common use at ratification are protected, based on discussions in this and other threads. But the quote I referenced lacks precision to know for sure.

    The position should be that modern interpretations of common bearable weapons at the time of interest are protected, similarly to the original intent that common bearable weapons at the time of ratification were protected at the time of ratification. This fits with the analogies on 1A and 4A that Scalia uses.

    It's easy to argue that AR-15s are common bearable weapons; RPGs for instance, while bearable, are not common.

  • Leo Kovalensky II||

    "the sorts of weapons protected were those 'in common use at the time.' "

    Explain which time Scalia referenced here. You seem to think it's ratification (18th century). Scalia's own words are clear that its the time that the language is interpreted, and supports this with similar examples of 1A and 4A cases:
    "Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment."

    You claim that Scalia is ridiculing me, but I've never made the claim that only those arms in existence at ratification are protected. You made the claim however:
    "Heller reaffirmed the 1939 precedent, that 2A protects only those weapons in common use at ratification, brought from home for militia service."

    Who is being ridiculed again??

  • Leo Kovalensky II||

    So explain it then if it's so simple? Explain how it could mean the time of ratification in light of the following quote:
    "Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment."

    These are Scalia's words, not mine.

  • Leo Kovalensky II||

    You're the one that resorted to ad hominem attacks. I have yet to say anything derogatory to you or about you. Maybe I'm just stupid and not seeing your point, so please stop linking to posts that nobody can follow and answer this question explicitly:

    Explain how "in common use at the time" could mean only weapons at the time of ratification in light of the following quote from Scalia himself:

    Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in­terpret constitutional rights that way. ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

    Or is your method of debate, when all else fails, to claim "my grace has expired for you" and run away from defending your own position?

  • loveconstitution1789||

    Even if what you say about common use at the time of ratification, which is another justice's opinion not necessarily how the constitution is drafted.

    Common use armaments including but were not limited to: rifles, pistols, grenades, ships, canons, bombs, swords, knives, lances, and weaponized disease.

  • loveconstitution1789||

    The Constitution is the supreme law of the land.

    Without the Constitution the constitution there would be no United States as we know it. The USA could operate without a Supreme Court. The Supreme court could just be rebuild because of the powers authorized in the Constitution.

  • Leo Kovalensky II||

    Hihn can't answer my question above and decides to narrowly view the Heller decision to mean that you can only carry weapons available at the time of ratification, even though Scalia himself called this position borderline frivolous. Somehow this language is used as an attack on the very position that Scalia is trying to defend.

    This is the most inconvenient piece of the Heller decision to explain:

    Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in­terpret constitutional rights that way. ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding
  • 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 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.

  • Old Mexican - Mostly Harmless||

    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.

  • Cyto||

    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.

  • Fist of Etiquette||

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

    Let's not get carried away.

  • loveconstitution1789||

    Lefties now love Scalia. Hilarious!

    Me thinks they act like Scalia is completely right to limit how far protections for armaments will go in the near future.

  • philippes||

    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.

  • Rev. Arthur L. Kirkland||

    "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?

  • Cyto||

    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, matériel

    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.

  • Rev. Arthur L. Kirkland||

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

  • Cyto||

    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.

  • philippes||

    What is the source? A lack of ignorance.

  • Leo Kovalensky II||

    Hihn, with all due respect, you're wrong again on Miller.

    "The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

    Miller only says that precisely because a short-barreled shotgun has no reasonable relation to military use that it can be regulated. That is exactly and directly opposes your claim: "Such a dishonest [s]ummary of Miller... [it] EXPLICITLY rejects military weapons"

    Again, the context of Miller was specifically about the NFA of 1934. That bill specifically allowed for regulation of machine guns, short-barreled rifles/shotguns, silencers, and destructive devices (grenades, bombs, etc).

  • Leo Kovalensky II||

    It's like talking to a brick wall, only the brick wall replies back your same argument against his position in favor of his own position.

  • Rev. Arthur L. Kirkland||

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

    Extremists are likely to disagree.

  • JP88||

    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.

  • mpercy||

    When will Reason add an Ignore User button?

  • Cyto||

    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.

  • AJ_Liberty||

    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.

  • AJ_Liberty||

    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.

  • loveconstitution1789||

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

  • AJ_Liberty||

    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....

  • dubhelix||

    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.

  • Leo Kovalensky II||

    "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."

  • dubhelix||

    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.

  • Leo Kovalensky II||

    Is this post considered cyber bullying or cyber stalking? It's never been clear to me how those terms apply to your ad hominem attacks vs the ones you decry against so loudly.

    No rights are absolute. Ban AR-15s and let's see what SCOTUS does with that law.

  • Leo Kovalensky II||

    2A supporters are certainly opportunistic. They didn't challenge the ban because 1) it was set to expire in 10 years anyway, and 2) they weren't confident that they could win a case on 2A grounds likely because of the makeup of the court. O'Conner was the wild card if I remember correctly.

    That's my guess anyway. What's yours?

  • dubhelix||

    What I'm hearing is that you think the 2A only protects firearms "in common use at the time".

    Are you referring to firearms in use in the 1700's, or do you think that AR15's are not in common use at this time?

    I'm not really sure what you mean.

  • dubhelix||

    I see. So, muskets then.

    I just keep reading the Miller finding over and over, and to me, it just seems to say basically the opposite of what you're saying.

    Could be my own confirmation bias, I guess.

    Oh well. You're entitled to your opinion.

    I don't really know what all the fuss is about these AR guns. I'm going to go and buy one though, just to see for myself. It'll be educational, and they seem to be widely available common use.

    Thanks for sharing your take on the SC cases. I guess we will see what happens as time passes.

  • Leo Kovalensky II||

    I'd recommend an AR dub. It's certainly no musket, but muskets are borderline frivolous as the case may be. Also no need to saw off the barrel in case you plan on drinking any Millers and making decisions based on that.

    Yep, it seems that an AR would be just fine!

  • dubhelix||

    Well, thanks Michael Hihn, your debate encouraged me to go find out for myself.

    The local gun store was sold out of all the "basic" model AR's (apparently they've sold hundreds in the past few days) and I wasn't interested in some commie-designed model, so I went with what I'm told is a high end unit with a long service life.

    After checking it over, reading the manual, and a quick lube, I took it out back and put 20 rounds down range, (I chose 20 round magazines because the 30 rounders interfere with shooting from the prone, I'm told) and I gotta tell you, I'm sold.

    It's now obvious to me that it's the new modern standard. Weatherproof, lightweight, accurate, and ergonomic, with little felt recoil.

    I'm going to list my old Remington bolt gun for sale. I think it's obsolete. Apparently I can get an "upper half" that is chambered in a round suitable for the little bit of deer hunting that I do. "Six-eight" or something like that.

    Now my "weapons brought from home for militia service" will be a Knights SR-15 (I'm told it's basically an improved AR15)

    Anyway, I just wanted to thank you for spurring me on, and helping me make a rational decision about what firearms to own.


  • Rebel Scum||

    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.

  • Galane||

    "...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.

  • ranrod||

    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."


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