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Free Minds & Free Markets

The Second Amendment ‘Has Become Optional’

A decade after recognizing a constitutional right to armed self-defense, the Supreme Court remains reluctant to defend it.

Ten years ago this week, the Supreme Court for the first time explicitly recognized that the Second Amendment protects an individual right to armed self-defense. Since then the Court has revisited the subject only twice, while it has heard about 45 cases involving the Fourth Amendment and about 60 involving the First.

That stark disparity reflects a failure noted by critics on and off the Court. After waiting more than two centuries to acknowledge that the Second Amendment imposes limits on legislation, the Court has passed up dozens of opportunities to clarify the extent of those limits, leaving the task to lower courts that are often hostile to gun rights.

District of Columbia v. Heller, decided on June 26, 2008, overturned a handgun ban in the nation's capital, finding it inconsistent with the Second Amendment right to use firearms for self-defense. Two years later, the Court overturned a similar law in Chicago, confirming that the Second Amendment constrains states and cities as well as the federal government.

Aside from those two landmark decisions, the Court has enforced the Second Amendment in just one case. In 2016 it ruled that the Supreme Judicial Court of Massachusetts had flouted Heller when it upheld that state's ban on stun guns based on the mistaken premise that the Second Amendment applies only to militarily useful weapons that were in common use when it was enacted.

That is far from the only time a court has reached a conclusion that seems inconsistent with what the Court has said about the Second Amendment. "Most federal judges have not accepted Heller," Alan Gura, the lawyer who argued the case, recently told Tom Gresham on the radio show Gun Talk. "They have taken the posture of 'go ahead and make me do it.'"

Over and over again, the justices have declined to do so. Last year, for instance, the Court refused to hear a case challenging California's highly restrictive carry permit policy, which lets local law enforcement officials decide who may be armed in public. As Justice Clarence Thomas pointed out in a dissent, it is "extremely improbable" that the right to keep and bear arms is limited to the home.

Bans on so-called assault weapons also seem to be at odds with Heller, which said the Second Amendment covers weapons "in common use" for "lawful purposes"—a description that plainly applies to the guns targeted by such laws, since Americans own more than 16 million of them and almost never use them to commit crimes. Yet the Court has turned away challenges to "assault weapon" bans in Maryland and Highland Park, llinois.

Federal appeals courts have disagreed with each other on both of these issues, creating circuit splits that ordinarily would invite the Supreme Court's intervention. The lower courts also have disagreed about the level of scrutiny that should be applied to laws that impinge on Second Amendment rights, another question that Heller left unresolved.

Thomas has repeatedly complained about his colleagues' neglect of the right to arms, calling it "this Court's constitutional orphan." Antonin Scalia, who wrote the majority opinion in Heller and died in 2016, joined Thomas's dissent from the decision not to scrutinize the Highland Park "assault weapon" ban, and Scalia's replacement, Neil Gorsuch, agreed with Thomas that the Court should have reviewed California's "near-total prohibition of public carry."

Three other current justices joined the majority in Heller. Since it takes four votes for the Court to accept a case, at least two of them seem reluctant to say anything further about the Second Amendment. Judging from Samuel Alito's concurring opinion in the stun gun case, which faulted his colleagues for a "grudging" decision that stopped short of overturning the ban, the two holdouts are probably John Roberts and Anthony Kennedy.

"You have to imagine that at some point in the future of our country the Supreme Court will take another Second Amendment case," Gura said on Gun Talk. "But until that happens, Heller has become optional."

© Copyright 2018 by Creators Syndicate Inc.

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  • Brett Bellmore||

    If there were enough votes to overturn Heller, there would be five votes to take a case to do it with. The logical conclusion is that neither side is confident who would prevail, and thus neither side is willing to take 2nd amendment cases, and end up with a precedent they don't like.

    The 2nd amendment will continue in this limbo until there are five known votes on the 2nd amendment, one way or the other. Hopefully that won't take another 68 years.

    My guess would be that Kennedy is the member of the Heller/McDonald majority that the Justices are uncertain of, and if he and/or Ginsberg gets replaced by somebody reliable, the Court will start taking 2nd amendment cases again.

    Of course, a serious issue here is that the Heller majority weren't entirely comfortable with the 2nd amendment, didn't want it rendered totally moot the way the minority would have, but neither were they willing to uphold it in its entire insurrectionist glory. Scalia split the difference, upholding a 2nd amendment right to guns that didn't scare the government.

    D.C. and Chicago were easy cases, extreme outlier violations of the right. Kennedy is probably less interested in striking down more common violations.

  • Quo Usque Tandem||

    I suspect you are correct in your assessment; so what are the odds that Ginsberg will fail to wake up from the next SOTU address and/or will moderate Kennedy retire per rumors over the past several months? And in either case will Trump nominate another candidate like Gorsuch [or Willet, or Ho] recommended by the Federalist Society? If so, then the time will be ripe for a landmark decision. In the meantime, tick tock.

  • Brett Bellmore||

    Can't speak to Ginsberg; Basic actuarial considerations suggest that she has a significant chance of croaking during the remainder of Trump's first term, and better than even if he gets a second term, but I'm not in the loop on her medical particulars. I think we can safely say that, barring actual death, she's not going to be voluntarily retiring.

    I hear talk that, based on the language in Kennedy's recent writings, he's probably going to retire. But that's one step above chicken entrails.

    So far Trump has been very good at sticking with Federalist Society suggestions. Better than you'd have expected Jeb to be, that's for sure.

    Honestly? If Ginsberg croaks, whoever Trump nominates, and their family, better immediately get armed guards, or better, be hidden in an undisclosed location. The left will go totally insane, and likely try to assassinate any nominee they don't like.

  • Quo Usque Tandem||

    I have thought the same; Ginsberg was likely waiting for HRC to take office before retiring, and possibly hoping for a Democrat majority in at least one of the houses. if Trump is able to "pack the court" with pro Constitution ideologues or get another term in office, either of those events will likely be enough to set off actual violence. It's been ramping up to that for some time now. I do not think it at all extreme to prepare oneself for that eventuality.

  • Brett Bellmore||

    OK, Kennedy just announced his retirement. Effective late July. Let the freakout begin!

  • higgyb||

    I knew praying to alah would work!

  • CE||

    chicken entrails FTW

  • loveconstitution1789||

    Some of the Weather Underground Socialists are beating the war drums again.

    Up next: 1970s-style bombings, warns progressive Interrupting meals 'just the beginning' of resistance to Republicans

    Goes to show that the FBI is incompetent to have yet to arrest anyone of those terrorists (attempted murder and murder) who have not been pardoned by Bill Clinton yet.

  • loveconstitution1789||

  • TxJack 112||

    I saw this as well. However, unlike the 1960s and 70s, many people will not sit idly by and leave it to the police. IF threatened, they will likely take it into their own hands. The left is making a serious mistake in thinking they can return to the actions of the war movement without a response. The difference is that "war" was in response to an undeclared, and confusing war on the other side of the world. This battle is for the future of the United States and what type of government will lead us. They seek to abolish the Constitution and replace it with a socialist/communist manifesto. All of us in the red states they love to mock will never abide that move and will willing die to stop it because if they win, that is not a country we wish to live in.

  • loveconstitution1789||

    Additionally, the Boomers that fell for the Communist propaganda that the Weather Underground were not terrorist but only trying to end the Vietnam War should quickly see how that propaganda is bullshit.

    The Weather Underground supports all sorts of lefty causes and even threw a big fundraising event for Obama outside Chicago.

    We also know that Communists spent money and effort to get Useful Idiots in the USA to protest the Vietnam War in an effort to save North Vietnam Communist forces rather than protesting the war because its was a stupid waste of time and young Americans. The Democrats started that war and then gave the Communists huge propaganda wins rather than invading North Vietnam or bombing N. Vietnam into oblivion and ending that war.

    We also know now that Vietnam is more friendly to the USA than Communist China and USSR is no more.

  • BYODB||


    Additionally, the Boomers that fell for the Communist propaganda that the Weather Underground were not terrorist but only trying to end the Vietnam War should quickly see how that propaganda is bullshit.


    Uhh...What is Afghanistan and most of the Middle East chopped liver? I wouldn't discount it. Notice how all media outlets consistently used the 'Muslim-majority country' terminology when talking about the travel ban?

    The propaganda machine is in full swing. Expect anything.

  • Red Rocks White Privilege||

    If anyone's ripe for a NAP-violating response, it's that test tube soy detritus of the Gawker Media empire Hamilton Nolan.

  • Leo Kovalensky II||

    Good analysis.

    A bit OT... This article got me wondering if there is a certain level of 2A absolutism that could actually be destructive, long-term, toward liberty. Sure it would be great to pack the courts with 2A friendly justices. Bans on automatic weapons, for example, are almost certainly a violation of any purist reading of 2A, but I suspect that society is conditioned to the point of having a super-majority against such a ruling. There would almost surely be a push to amend the Constitution in such a case, which opens up a bit of a Pandora's box.

  • Cyto||

    This is most certainly true.

    But at least it would be an honest government.

    One of the main points of inventing a constitutional process was to ensure that we had a "nation of laws, not of men".

    But then we immediately reneged on the deal and went with a government of men, because really having a government limited by the constitution is unworkable. There are just so many "important" things that need doing.

    Unfortunately, we've enshrined the holy 9 as the final arbiters of what "rights" are and what "justice" is. And sure, they mostly do a good job and it is great that we have a group of people who are experts in the law and rights arbitrating disputes. But as a consequence, we have abdicated all serious thought about the proper role of government and what real rights are, leaving that to the supreme court.

    So now "rights" are defined as "whatever I can convince the court to say they are". Hence the nasty supreme court nomination battles and the heavy focus on the topic by national parties. Now we can seriously have people talking about a "right to healthcare" and a "right to affordable housing". It seems to me that this is a direct result of abdicating our responsibility to understand and assert our rights, leaving it to the courts to decide.

  • Leo Kovalensky II||

    Not sure if you've ever read The Myth of the Rule of Law, but it should be required reading in any law class and probably any high school civics class. If you've ever wondered how two legal scholars can read clear language and arrive at completely different conclusions, I think this explains it rather well.

  • loveconstitution1789||

    Enforce the Constitution and its limits. That is the solution.

    An example given about a book to 'cheat' on your taxes completely falls under the 1st Amendment freedom of the press.

  • Cyto||

    That's a pretty interesting essay. He's explaining the nuts and bolts of my chief complaint, that judges decide "what is right" and then back into their decision.

    This is how you get Wickard and Raich. Decisions that are clearly at odds with the letter of the law as far as the constitution goes, but rely upon lower level decisions and logic to support an opposite conclusion.

    We may never be able to reconcile all inconsistencies in the law, but we can certainly stick to a hierarchy of law that says the constitution is the primary source and anything that directly conflicts with the constitution is therefore unconstitutional.

    This would toss out all gun control legislation. And it would also toss out much of the federal government, under the 9th and 10th.

  • Cyto||

    But it still ends up with a slew of amendments that would eventually render the constitution a complicated and contradictory mess.

    So the author is correct, in the end this sort of outcome is inevitable. I'd still like it if we didn't go around pretending that "shall make no law" means "unless we think it is important".

  • loveconstitution1789||

    Instead we a slew of laws and case law and this is exactly what enforcing the strict limits of the Constitution prevents.

    All the drug law wiped off the books as the Constitution does not allow for government to ban anything without an amendment. Hundreds, if not thousands, of federal and state law pages and cases repealed as there would be no crime for drugs.

  • BYODB||


    But it still ends up with a slew of amendments that would eventually render the constitution a complicated and contradictory mess.


    There are actually literal examples of this within the states themselves RE: the Texas and California state constitutions. Lots of amendments, and also lots of laws. We just...ignore most of them.

  • TxJack 112||

    Without the 2nd amendment, all the others become privileges granted at the determination of the Federal government. Once stripped of the ability to resist tyranny, it is very easy to strip all our other rights as well.

  • Enjoy Every Sandwich||

    Terrific article, thanks for posting!

  • TrickyVic (old school)||

    """right to healthcare" and a "right to affordable housing". "'

    The people that say this thinks that a right means free for them.

  • Cyto||

    I think you have grasped their understanding.

  • TxJack 112||

    Gun rights need to be managed at the state level as they were prior to the passage of the NFA of 1934. Let each state decide for itself how guns will be regulated. They are prohibited from outright bans on all guns but we are a free people and if idiots in any state wish to let their legislatures pass laws which only allow criminals to carry guns, they can deal with the crime and chaos. My issue is the push for national laws which do not consider that my life and needs here in Texas are vastly different than those of someone in NYC. I live in Denton, a city of 80,000 and only 40 minutes north of DFW. It is common to see bobcats, coyotes and other wild animals in neighborhoods because there are still hundreds of acres of undeveloped land surrounding the city. When my daughter was young, dads in our neighborhood took turns standing at the bus stop to watch for coyotes. They learned quickly that children carried food in their backpacks and would attempt to steal them. More than once I was force to shoot by pistol to keep them away. I seriously doubt anyone in NYC, DC or Boston has a similar concern.

  • loveconstitution1789||

    The 14th Amendment sealed the coffin on state regulation of Arms as it now incorporates the 2nd Amendment as a minimum right protection for all states.

  • barfman2018||

    The 2A is not about scaring away animals.

  • BadLib||

    Sure it is, humans are animals.

  • TxJack 112||

    Didn't say it is was saying that your reality is not the same as everyone in the US. Furthermore, you do not have a right to decide my rights based on your world view alone. The 2nd amendment is about self defense be it from a wild animal, a crazed criminal or a Federal government out of control.

  • AZ Gunowner||

    To what extent can the states regulate the right to arms?

    Prohibit a certain class of people, like Negroes for example, from ownership?

    The Congress, after the Civil War, tried to put a stop that with the 14A.

    But the SC wasn't interested in giving full citizenship to them and so we got Cruishank (1876), a SC decision that said the right to arms existed prior to the adoption of the Constitution and "doesn't depend on that instrument for its existence", yet said that the people had to look to their state gov't for protection of that right.

    Of course the former South wasn't interested in that were they.

    So, the States unfortunately, can be just as despotic as the Feds, and the SC can go either way as it did when (essentially) reversing Cruishank in 2010 in MacDonald.

    Human beings aren't perfect. And the States and the SC are just made up of human beings.

  • a tandem||

    When my daughter was young, dads in our neighborhood took turns standing at the bus stop to watch for coyotes. They learned quickly that children carried food in their backpacks and would attempt to steal them. More than once I was force to shoot by pistol to keep them away. I seriously doubt anyone in NYC, DC or Boston has a similar concern.

    People in DC, like people in Baltimore, don't have a similar concern -- they are at massively higher likelihood of having to own and carry a firearm to protect themselves they you are. Just look at the violent crime and murder rate data.

  • BYODB||


    A bit OT... This article got me wondering if there is a certain level of 2A absolutism that could actually be destructive, long-term, toward liberty.

    I don't see how it's possible that a more armed populace would result in less liberty when we're already armed to the teeth today and crime is at historic lows.

    "An armed society is a polite society" instantly comes to mind.

  • FlameCCT||

    FYI automatic weapons aren't banned. They are heavily regulated unlike other firearms.

  • Cyto||

    As long as we allow our judiciary to eschew reading the actual language of the law and instead try to decide "what is right" and backfill that choice, we are going to have problems.

    The language of the 2nd amendment is clear. It says "shall not be infringed", which is even stronger than the first amendment's' "congress shall make no law".

    Not infringing the right to keep and bear arms could be read as more expansive than simple restrictions on government laws. Tariffs on ammunition would be implicated. Heck, even restrictions on the manufacture and sale of weapons that are not specific to weapons might be implicated.

    But nobody is interested in actually applying the language of the law. It is seriously unworkable. You have to do some mental gymnastics just to imagine that the 2nd amendment's protections only apply to arms that are "bearable" - and even that level of freedom is a bridge to far for pretty much everyone. Nobody* wants .50 caliber machine guns widely available. Let alone grenade launchers, etc.

    But the only way to do it right is to apply the law as written and go get some amendments to alter the deal if that's what we all agree on.

    * nobody in this case is defined as "those kooky libertarians and anarchists", rather than the normal nobody. You know.. "nobody important".

  • TxJack 112||

    The problem with the judiciary is most clearly demonstrated by their interference in immigration issues. We have Federal judges in California who are willfully ignoring the law and instead acting as "super-legislators". If you look at the decision by the District Court judge in San Diego yesterday that mandates all separated children be returned to their parents, you will find the majority of the opinion is not law, but political opinion and personal bias. For a judge to say, "we are a nation with compassion" has nothing to do with the law but is a political statement. If you look at all the anti gun rulings they are the same. The most recent on the banning of AR style rifles, the judge wrote "there is no good reason for anyone to possess a military style assault weapon for personal defense". The problem with this statement is obvious. First, an AR is not a military weapon, nor an assault rifle. Second, the judge cannot decide what is or is not a "good reason" for me to own one. Lastly, I may not use it for "personal defense" but in Texas, they are used every day to hunt feral hogs which have a population of 1.2 million and cause over $480 million dollars in crop damage annually. They are fast, dangerous and have 4-6 inch tusks that are razor sharp. They hide in brush and can attack at speeds of 25 mph. A person hunting hogs with a bolt action rifle is an idiot or has a death wish because they rarely fall with a single shot.

  • Rebel Scum||

    "we are a nation with compassion"

    This should have any judge removed from the bench and disbarred.

  • perlchpr||

    *raises fist of 'nobody important' solidarity*

    "The right to keep and bear arms shall not be infringed" really just isn't that complicated of a phrase.

  • TxJack 112||

    The problem with overturning Heller at this point is many states will simply ignore the ruling as the left has done with immigration. When the Obama administration challenged the Arizona immigration law, the SCOTUS clearly stated immigration is the sole responsibility of the Federal government. However, many states and cities have chose to ignore that ruling by establishing "sanctuaries". The Federal government has objected and members of the judiciary have sided with the states and cities also ignoring the SCOTUS ruling. If Heller were overturned, there is no recourse for the Federal government short of martial law and a civil war. The police and military will not enforce such a law because many would deem it an illegal order. Where states like California, NY or NJ would quickly move to seize all weapons, states like Texas would not. More likely, our legislature would enforce the law passed in 2014 that any Federal law restricting or banning firearms is null and void in Texas.

  • Quo Usque Tandem||

    It's official: KENNEDY RETIRING JULY 31!

  • pro bonobo||

    I agree, Kennedy was too much of a wildcard to risk.

    It does appear there will be another textualist appointed to the court and that should break the logjam. Perhaps a challenge to the Draconian concealed carry laws in California will be in the mix...?

  • OpenBordersLiberal-tarian||

    Libertarians really need to rethink our position on the Second Amendment. Gun fetishists are on the wrong side of history, and that's exactly where we don't want to be. We need to join with progressives in advocating common sense gun safety legislation, starting with a ban on deadly assault weapons. Nobody needs an AR-15.

    #GunSense

  • Brett Bellmore||

    Yeah, that's the thing about "rights": They're the stuff where you don't have to prove need to somebody else.

    Why exactly do you claim to be a "libertarian", again?

  • OpenBordersLiberal-tarian||

    I'm a libertarian because I agree with the libertarian stances on the three most important issues: unlimited immigration to the US, unrestricted abortion access at any point in pregnancy, and transgender bathroom freedom. That right there makes me more libertarian than many of the people who post here.

  • TxJack 112||

    A Libertarian believes the Federal government should only address issues that are clearly defined in the Constitution. Libertarians are originalists. No where in the Constitution does it discuss abortion or transgendered rights. The right to "privacy" used to legalize abortion was a legal flim flam used by the Burger Court and its erroneous interpretation of the 14th amendment. The bathroom issue is another one that cannot be Constitutionally supported because it is not a Federal issue. However, if the case would have been decided correctly, Same Sex Marriage is a constitutional issue under the 14th amendment. Heterosexual couples in a marriage are granted specific rights in regard to taxes, benefits and the distribution of property after death. To deny a same sex couple wishing to enter into the same type of arrangement is a denial of rights and not equal protection under the law. The Federal government should not make determinations on morality since that is not its role. Its only role is the equal application of the LAW. As for immigration, as was decided yesterday, that power falls to the President under Article II. So if a President decides it is in the best interest of the US to have open borders, than that is permissible, but so is closing or restricting immigration as well. I can call myself Venusian but that does not make it so just as you calling yourself a Libertarian does not make it true either.

  • IceTrey||

    A libertarian believes all actions should be allowed except those involving the initiatory use of force.

  • CE||

    Except that privacy is a right clearly protected from Congress in the BIll of Rights.
    See the 4th Amendment, and the 9th.

  • BigChiefWahoo||

    In other words, your "Libertarianism" is advocating a few explicit exceptions to overall government power in those cases in which you have some special interest while accepting government regulation of all other areas of life? You want liberty for yourself and those who agree with you on those few issues, but not for anyone else, isn't that it?

  • T. Lord||

    I believe you've been trolled :)

  • Cynical Asshole||

    You do realize it's a troll/ parody, right?

  • dxh@yahoo.com||

    >Nobody needs an AR-15.

    Tell me exactly what weapon should be used by us militiamen to defend our country against enemies both foreign and domestic then? A slingshot? Screw you.

  • Cyto||

  • Cynical Asshole||

    Poe's Law looms large.

  • Cyto||

    No question. He's spot-on. Minus the liberal-tarian handle it could certainly be a real opinion.

  • Quo Usque Tandem||

    OBLT: I know you are a parody, so I'll be nice.

    So nobody "needs" an AR 15; nobody "needs" a whiny little bitch either, yet here you are.

    Laugh son, it's a joke

  • AZ Gunowner||

    No.

    And I'll kill anyone, ANYONE, that tries to take them.

    Oh, and I won't use and AR15 when doing that.

    I'd rather use a battle rifle than an under-powered "assault rifle".

  • Enjoy Every Sandwich||

    This battle will go on so long as any vestiges of the Republic remain. The Left does not accept that there is a right of self-defense and they will never stop trying to crush that right.

  • John C. Randolph||

    It's a lot harder to kill the Kulaks if they can shoot back.

    -jcr

  • TxJack 112||

    They do not accept the right of self defense because they know an armed populace is the only barrier to their imposition of a socialist, centralized government that dictates, rather than protects civil rights. There are people going to prison for saying things the state has deemed improper and illegal in the UK, France and Germany, every day. This is the country the leftists in the US seek to create. "We did not fight a revolution to trade one tyrant for another. The only way for a standing army to rule it to first disarm the people" - George Mason-Delegate to Constitutional Convention from Virginia and Father of the Bill of Rights. "The only true protection from the excesses of government is the right of the people to keep and bear arms" - Alexander Hamilton- Federalist #29

  • Stevecsd||

    An example of this is the Brits throwing Tony Robinson in jail for filming outside the trial of Muslim rapist gangs.

  • Cyto||

    The second amendment isn't the only orphan.

    The 9th and 10th seem to have been written in disappearing ink.

  • Leo Kovalensky II||

    What about the 4th?

  • Cyto||

    Battered child?

  • dxh@yahoo.com||

    The what?! Never heard of it.

  • TrickyVic (old school)||

    the 5th has spoken

  • TxJack 112||

    The 10th was changed forever after the Civil War. What those who fail to read history never understand is prior to the Civil War, the US was a confederation of independent "states" (i.e. nations) who all agreed to work together for the common good. Kentucky, Massachusetts, Virginia and Pennsylvania are all "commonwealths". South Africa is also a commonwealth. A commonwealth is a common synonym for a nation. The term "state" in every other context means nation, except when taking about the US. What we call a "state", the UK calls a county. For this reason, the Federal government and Congress were mandated to defer to the states rather than vice versa. Robert E. Lee declined leading the Federal Army and chose to "follow my state". To rebuild the country after the war, the states were forced to cede much of their autonomy to the Federal government. Beginning in the early 20th century, the move to dramatically change the role of the Federal government began under the first true progressive President, Theodore Roosevelt. It continued until FDR took it to the next level and from there only expanded. The 10th amendment is lost until we, the people, demand we return to the original intent of the Constitution. What the majority of Americans do not grasp is THIS is war actually being fought now. Will be a nation of free states with some level of autonomy or a nation controlled completely by the Federal government and forced deference.

  • BigChiefWahoo||

    I'm sorry, but what you seem to be saying is that the Tenth Amendment was somehow changed by the military decision in the Civil War without any explicit amendment. If that were the case, why was it necessary to add the 13th, 14th, and 15th Amendments? After all, if the 10th Amendment was somehow magically changed by the military decision, the rest of it could have been magically changed by the same process, right?

  • AZ Gunowner||

    TxJack is not technically accurate, but the idea of the US as a federal Republic before the Civil War did die at Appomattox.

    But specifically, the 14A killed it. Or was supposed to as it was passed specifically to extend the protection of the Bill of Rights against the states which runs counter to the view (erroneous, but accepted) prior to the CW.

    But that was survivable, even preferable as the states can be just as despotic, but what was not was changing the election of Senators to a majority vote of the people.

    After that it was just a matter of time till the Congress became the den of thieves and power mad psychopaths that it is now.

  • TxJack 112||

    granted

  • Cloudbuster||

    The third amendment is the only one not under routine attack and distortion. And there have even been one or two cases of that -- police occupying houses that were convenient for staging surveillance or raids.

  • TrickyVic (old school)||

    Seems like some on SCOTUS thinks a ban against some muslims is a ban against all muslims. Following that logic, a ban on some guns is a ban on all guns.

  • loveconstitution1789||

    Amendment II: 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.

    You don't need the SCOTUS to keep taking gun rights cases per se, you need them to reverse without opinion every gun control case that comes from the circuit courts or brought directly from the district courts.

    The 2nd Amendment is clear that the People have a protected right tot keep and bear Arms. All Arms. Machine guns, rifles, knives, swords, pistols, grenades, tanks, ships, nukes, planes, land mines, and any other weapon that can ever be created.

    If you don't want that as Americans, change the Constitution.

  • Rebel Scum||

    clarify the extent of those limits

    "...shall not be infringed." seems pretty clear.

  • TrickyVic (old school)||

    Case law > Constitution. In other words, what SCOTUS says > Constitution

    It shouldn't be. But in practice it is.

  • Rockabilly||

    The commies will have to kill me to get my gun.

  • loveconstitution1789||

    With ya bro.

  • ||

    Neither side wants to risk losing.

    You'll get 4 'yes' votes when you have 5 solid votes for one side or the other seated.

  • ranrod||

    Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan

    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn't count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn't say "file a lawsuit in federal court." Madison advised a refusal to cooperate with officers of the union. Don't depend on politically connected lawyers to protect your right to keep and bear arms.
    http://blog.tenthamendmentcent.....-bad-plan/

  • ranrod||

    Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan

    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn't count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn't say "file a lawsuit in federal court." Madison advised a refusal to cooperate with officers of the union. Don't depend on politically connected lawyers to protect your right to keep and bear arms.
    http://blog.tenthamendmentcent.....-bad-plan/

  • ranrod||

    The TRUTH about the "supremacy clause" - Only THREE things are eligible to comprise the "supreme Law of the Land": The Constitution, Acts of Congress, and Treaties. Supreme Court opinions are not included! Supreme Court opinions aren't even "law" [contrary to what lawyers were told in law school] – they are merely opinions on the law suits or proceedings before the court.
    our Constitution does not delegate to the national government authority to restrict our arms, ammunition, regulate firearms dealers, do background checks, etc. The national government may not lawfully circumvent this restriction by means of a treaty wherein the signatory governments agree to disarm their Citizens or Subjects.
    https://publiushuldah.wordpress.com/ ?s=The+TRUTH+about+the+"supremacy+clause

  • 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."

  • aajax||

    The Supreme Court doesn't want to make a landmark decision unless it is presented with a "good" case on which to base it. In the case of a challenge to a carry law, I think it would require showing that the general population of an area is dealing with a systemic threat of outlaw violence which could be effectively countered by citizens being allowed to carry guns. I'm not aware of a situation like this anywhere in this country since the days of the Wild West. We have areas of some of our cities with a high gun murder rate on their streets, but in general the victims are as criminal as their murderers. When ordinary citizens of such neighborhoods are victims, it is usually as collateral damage, a situation in which carrying a gun oneself will accomplish nothing. A person from one of those neighborhoods bringing a case for carrying to court will not be presenting a "good" case for the Court to rule on.

  • SoyIsMurder||

    "the mistaken premise that the Second Amendment applies only to militarily useful weapons that were in common use when it was enacted"

    If this is 'mistaken', then why can't I buy land mines, or a Humvee with the 50 caliber still installed? They are undoubtedly "arms" that could very effectively protect my home. What about "shall not be infringed", do these people not get? Gimme my Apache.

  • a tandem||

    Your position that the First Amendment only applies to writing done on a quill and printing press is simply not logically defensible.

    BTW there are 50 cals on Humvees in civilian hands right now. Moreover it is not difficult to illegally manufacture a mine, they are called IEDs. Despite the ease WAY more people are being murdered with hands, bats/bludgeons , revolvers, knifes.

  • Johnimo||

    Maybe they courts feel that what the second amendment really means is: " ... the right of the people to keep and bear arms shall probably not -- but not necessarily -- be abridge."

  • vek||

    Well, well, well. Now that Kennedy is retiring, and will probably be replaced with someone to the right of him, we may be seeing some more cases in the near future :)

  • TxJack 112||

    The issue is not that most judges have not accepted Heller but rather the issue is gun ownership should be a state issue. If a state moves to restrict guns, such as has happened in California, if the majority of citizens in that state agree, that should be the law. If the right to carry and own certain guns is very important to you, then you can move to a state with less restrictive laws. My problem is when courts attempt to impose laws on the entire nation based on the circumstances in one location, like DC. Washington DC is a far different place than Denton, Texas. A law good for DC is not likely to be as good for Denton except in the mind of some anti gun zealot. A few years, the group Moms demand Action (funded by Bloomberg) tried to pressure grocery stores in Texas to ban all guns when open carry became law. They ranted about "shoppers not feeling safe" and all the other typical BS. Kroger, the largest chain in N Texas, refused. Since open carry was passed, I have seen ONE (1) person openly carrying a gun who was not a police officer. The point of carrying a gun for self defense is to NOT let the bad guy know you have it. Open carry defeats this goal. You see people open carry at the gun range but HELLO you are at the gun range...

  • Longtobefree||

    So you consider state law overrides the US Constitution?
    So if TX passes a law prohibiting posting online by people who think the US Constitution does not apply if a state says so, you will move to California?

  • TxJack 112||

    Seriously? First, Texas would never pass such a law because we do not even trust our own state government. Second, If California was the last dry land on earth, I would learn how to breathe underwater.

  • Good backlink||

    Yes!!! Gun fetishists are on the wrong side of history, and that's exactly where we don't want to be.

  • TxJack 112||

    All of the debate is actually irrelevant because if the Feds banned all guns today, there is no way they can enforce it. How do you confiscate 400 million guns from 50 million "criminals"? The idea every gun owner would simply surrender them is insane.

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