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Second Amendment Does Not Apply to 'Assault Weapons,' Says U.S. District Judge

His obsession with Justice Scalia's aside in Heller about "weapons...most useful in military service" ignores Scalia writing of weapons "typically possessed by law-abiding citizens for lawful purposes."

Relying on certain stated or implied limitations on the weapons to which the Second Amendment applied in Justice Antonin Scalia's opinion in D.C. v. Heller (2008), U.S. District Court Judge William G. Young this week granted summary judgment to Massachusetts in a lawsuit challenging a 1998 state law that emulated the federal government's 1994 ban on certain weapons it characterized as "assault weapons." The federal ban expired in 2004 but the Massachusetts version remained in effect.

sea turtle on Foter.com / CC BY-NC-NDsea turtle on Foter.com / CC BY-NC-ND

In their original complaint, plaintiffs David Worman et al argued that a 1998 Massachusetts state law that banned certain types of semi-automatic rifles and certain sized magazines violated their Second Amendment rights (and that a later attempt to apply the ban to other weapons not specifically listed originally but now considered to be illegitimate "copies or duplicates" constituted a 14th Amendment violation of due process)

In his decision in Worman v. Baker, Judge Young declared that "assault weapons and LCMs [large capacity magazines] are not within the scope of the personal right to 'bear arms' under the Second Amendment."

Why does Young think this? Because Scalia said in Heller that some weapons of primarily military use would not necessarily be covered by the Second Amendment ("weapons that are most useful in military service—M-16 rifles and the like—may be banned..."). Young believes that qualities of the weapons and magazines covered by the challenged law mark them as of primarily military use.

That phrase in Heller that Young relies on so much, echoing the 4th Circuit's Kolbe decision, may not bear as much weight as he thinks. The context makes it clear that Scalia is discussing what he considers "dangerous and unusual weapons" and the M16, which he names specifically in the next paragraph after mentioning "dangerous and unusual weapons," unlike civilian "assault weapons," in some varieties has a full-automatic firing mode.

Scalia was making an aside and not breaking down analytically the specific qualities of weapons he meant to mark as bannable. That's not the strongest phrase on which to lay the weight of an assault weapon ban, to my read. By no means can the weapons at issue in the Massachusetts ban be considered "dangerous and unusual."

Young grants that "assault weapons" under the Massachusetts regulations certainly are commonly used in America; nonetheless, such "present day popularity is not constitutionally material." Young holds hold tight to Scalia's aside about how "M-16 rifles and the like" that are "most useful in military service" may presumably be banned. He holds so tight to that phrase that he grossly misrepresents that aside of Scalia's as representing "the words of our constitution" which are "not mutable."

What he's really relying on is by no means "the words of our constitution" but an interpretation, a questionable one I'd say, of Scalia attempting to not be overly disruptive of already existing gun bans while thinking through Heller. (Besides, "assault weapons" were not at issue in the specific facts Scalia had to consider in Heller, involving D.C.'s complete ban on any readily usable weapon for self-defense in the home.)

Scalia wrote elsewhere in Heller, while attempting to reconcile his opinion with the 1939 Miller precedent, that "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right."

That statement—though no more "the words of our constitution" than Scalia's aside about the ability to ban guns "most useful in military service"—gives weight to the plaintiffs' belief that a weapon like the AR-15, for example, which is very much "typically possessed by law-abiding citizens for lawful purpose" and is not in weapon terms especially "dangerous and unusual" should be protected, despite Judge Young's interpretation.

Young's attitude toward the Heller decision and so-called "assault weapons" has been shared by other courts in the past, including the 4th Circuit Court of Appeals the 2nd Circuit, and the 7th Circuit, though other lower court judges have disagreed. It is an issue that should be eventually considered by the Supreme Court. However, up until now, the Supreme Court has continued to avoid cases that would require them to decide whether certain rifles classified by certain states as "assault weapons" require Second Amendment protection.

Photo Credit: seaturtle on foter.com

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  • Eidde||

    According to Wikipedia, the judge is a Reagan appointee, which I suppose will be bandied about considerably in the media.

    I would suspect he's one of those "judicial deference" judges, part of the process by which certain conservatives picked up the ideas of the progressive Felix Frankfurter in a reaction against the Warren Court.

  • Scarecrow Repair & Chippering||

    Not to forget the 1986 Gun Control Act. Reagan is vastly overrated by his fans.

  • DenverJ||

    Better than Carter? *snorts in derision

  • Jay Dubya||

    faint praise, reaganite.

    also, i lold when i looked at the antigun marchers in the attached photo. clearly indicative of the youth movement driving gun control efforts

  • BigT||

    Reagan won the Cold War against the Soviets without firing a shot, the greatest accomplishment of the 20th century.

    Yeah, best Prez since Washington.

  • peter007||

    Regan won the cold war.
    Myth.
    The sun also rose everyday that Reagan was President. Do you want to give him credit for that? There are a number of factors which caused the collapse of the Soviet Union . Whether that was a good thing or bad thing is still debatable. Communism doesn't work well. That may be the single most important contributing factor in the break up.

  • CatoTheChipper||

    But Reagan was one of the very few serious people around who actually understood that communism would eventually fail. But it had been around for 64 years when Reagan was inaugurated. Its track record of military success was impressive: the Soviet Union had defeated the Nazis, successfully deterred any advance of Nato alliance, and had defeated the US in one proxy war after another.

    The conventional mainstream wisdom was that the Soviet economy would forever improve and eventually surpass the US. Read a version of the Samuelson Economics text from the pre-1989 era. The 1980 edition read: "the Soviet economy is proof that, contrary to what many skeptics had earlier believed, a socialist command economy can function and even thrive." The 1961 edition predicted the Soviet economy would overtake the US economy by no later than 1997. Despite the objective facts, Samuelson's 1980 prediction was that the Soviet economy would prevail by no later than 2012. That was also roughly the CIA's and the State Department's assessment -- in other words that of the best and brightest -- as well, and it served as the received wisdom of newspaper writers, opinion columnists, and newsreaders as they interpreted the news of the day.

  • CatoTheChipper||

    Yeah, there were a lot of factors the causes the Soviet empire to collapse. Sure, Mises and Hayek observed that the command economy was fatally defective, but Austrian economics is pretty worthless when it comes to predicting the timing of future events. Lech Walesa and the Polish workers. East German disgruntlement over their inferior standard of living. Pope John Paul II. Maggie Thatcher. Hungry Romanians. Fractious Czechs and Slovaks. Russian demoralization over Afghanistan. A resurgence in Muslim identity in the Soviet 'stans. The nascent prosperity of non-communist SE Asia, Korea, Taiwan vis-a-vis their communist neighbors. The end of Jimmy Carter's malaise and a precipitous decline in the misery index. To name a few.

    Unlike his Democrat opponents and the Kissinger and Richard Perle varieties of Republicans, Reagan supported those who advocated liberty and opposed the Evil Empire, and, when the opportunity arose with Gorby, Reagan had the appropriate world view. Not the Dems shared Samuelson's opinion of Soviet economic prospects. Not Kissinger Republicans who believed that the US was in a long struggle with the USSR akin to that of Athens and Sparta (not a happy ending.) Not the Richard Perle Republicans who only believed in amassing weapons because the USSR would forever be doing the same.

  • CatoTheChipper||

    So, with all of these factors in place, when the opportunity arose with Gorby, Reagan was able to set in motion the end of the cold war. It was Reagan -- over objections of many Democrats and Republicans -- whose administration negotiated the first reduction in nuclear arms with Russia. And the reductions -- fully 80% of the nuclear arsenal -- were Reagan's idea. Even Obama thought it was a good idea; he negotiated an extension to Reagan's original START after it expired in 2009.

  • Buddy Bizarre||

    Firearm Owners' Protection Act of 1986. 80% good for gun owners by adding travel protections, 20% bad for closing the full auto registration list.

  • Liberty Lover||

    I couldn't agree more. I and they still tout him as the best Republican president ever after all these years. Personally I think Reagan was a conservative disaster.

  • Joe_JP||

    "I would suspect he's one of those "judicial deference" judges"

    Hard to tell using this one opinion. Reading the opinion, including quotes from Scalia on judging, sounds like a typical Reagan judge to me.

  • UnrepentantCurmudgeon||

    Well, let's see. The colonials possessed muskets and pistols. They used them to hunt and when necessary in defense of their homes. In combat with the British they used the same weapons since, being a militia, these were the weapons they brought with them to the battlefield. They both defended against British attacks and attacked the British using those same weapons. Did these weapons then not become assault weapons? This whole "assault weapon" issue is mere semantics, as all weapons can be used as "assault weapons". But it is dangerous semantics because it opens a door wider than Trump's mouth to drive increasingly broad gun bans through.

  • MikeP2||

    Cannons were the primary consideration leading to the 2nd

  • Vernon Depner||

    You can "bear" a cannon? I'm impressed. Do you use 'roids?

  • Cy||

    You bring a cannon to bear. That literally means pointing a cannon. I appreciate you pointing out how absurd the neo-fascist's reading of the 2nd has become.

  • loveconstitution1789||

    You're giving the gun grabbers too much rope to hang themselves with.

    II Amendment:
    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.

    Its Arms, as in Armaments. Ships, canons, muskets, pistols, swords, knives, grenades, bombs, tanks, machine guns, AR-15 types rifles, and all other weapons that would allow a well trained militia to defend the USA from all enemies foreign (other nations) and domestic (traitors inside the US gov).

  • JFree||

    2A definition of arms has ALWAYS been in the context of a militia - and the militia itself has always been defined by the enumerated powers of the body of the Constitution itself.

    Art1Sec8Clause16:
    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    Congress is specifically responsible for organizing and arming the Militia. It is fucking transparent that the Militia is NOT intended to fulfill some idiotic secessionist notion of 'opposing federal oppression' or your semi-'ZOG' crap. In the context of specific 'arms' the 2A applies to PERSONAL issue weapons - not to company/platoon/division/etc issue weapons.

    2A proponents (and I am one) should a)read the actual fucking constitution and b)stop yapping neoconfederate/supremacist BS (and get rid of those swamp vermin in their midst) and c)vote only for congresscritters who will actually restore the damn militia and get rid of (or massively reduce at minimum) the all-volunteer standing army.

    Because as long as pro-2A folks ignore the REQUIREMENT that we have a militia, then anti-2A will fail to understand why we ACTUALLY have a 2A if we have allowed the militia part of it to disappear.

  • MikeP2||

    Unfortunately, you are illiterate in the relevant history of the 2nd.

  • Joe_JP||

    I personally think more emphasis should be put on the militia and relate to Joseph Story back in the 1830s upset about it not being properly upheld. I'll say this granting some strong individual right or not.

  • JFree||

    It's worth quoting Story (the last part):

    ...Though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable; it cannot be disguised that among the American people there is a growing indifference to any system of militia discipline and a strong disposition from a sense of its burthens to be rid of all regulations. How it is practicable to keep the people duly armed without some organization it is difficult to see. There is certainly no small danger that indifference may lead to disgust and disgust to contempt; and thus gradually undermine all the protections intended by this clause of our national bill of rights.

    This has already happened IMO. We are heavily armed but have already lost many of the liberties that would NEVER have been infringed had we insisted in assuming our common responsibility to be both armed and organized in defense of our common liberties. Instead, we are armed but paranoid and paralyzed.

    I do grant a strong individual right - but that's to self-defense only - not to some individual vision of a societal utopia.

  • soldiermedic76||

    Might want to read Madison, the one who wrote the 2A, he completely disagrees with you. He in fact stated the advantage of the 2A is that private citizens can own guns, thus as a check against tyranny. I think I will take his word for it's meaning over yours, since he wrote the damn thing.

  • JFree||

    He in fact stated the advantage of the 2A is that private citizens can own guns, thus as a check against tyranny.

    I have read Madison. And even if you have read him, you don't seem to understand what he or anyone at the time was actually saying. It is not the mere private individual ownership of guns that guards against tyranny. Your 'thus' is YOUR creation. The check against tyranny occurs ONLY when that wide distribution is combined with an organized and disciplined community with a common focus. It is ONLY that combination that can be effective against actual usurpation - and far more importantly whose mere existence PREVENTS such usurpation.
    Break that combination and all you have is an armed incoherent individualist rabble that can't 'defend' a damn thing and has no clue even what it wants to defend. The easiest way to manipulate that rabble INTO tyranny is to demagogue the 2nd while convincing them to support every single increase in the power of the ACTUAL instruments of tyranny.
    Which is what we have today. Where gunowners can accumulate whatever they want and jerk off to their private stash of arsenal porn - while the Pentagon/NSA/deepstate/FEMA/state/county/local/etc forces who ARE organized can do whatever they want and don't give a shit re bugs spitting about their liberty.

  • soldiermedic76||

    Actually my thus is his word. Also, you clearly do not understand how the militia worked at the time of the writing. Outside a few officers, mainly ceremonial appointments, the militia had no formal membership. A local Captain (often voted in to office) would announce drill, there was no formal membership, and thus whoever showed up would go through the evolutions. Madison clearly understood that such a system required people to own their own arms and be proficient in them, because hese were not professionally trained troops. Leadership in the militia was handed out as political prizes. The militia act of 1794 also made it clear that all makes 17-45 years of age were considered members of the militia.

  • soldiermedic76||

    Also, many of us have undergone training and understand military discipline. Most veterans tend to also be gun owners. We also posses the skills necessary to train others.
    Madison was clear, as was Jefferson, Hamilton, Samual Adams, Mason, Webster etc that the militia could not operate without private gun ownership. That gun ownership was not dependant on militia service but that privately held arms were necessary to protect freedom. Mason stated we are all members of the militia, which is supported by law.
    Madison felt, as is clear from his writings, that private gun ownership led to weapons proficiency, which was necessary for the militia to function. The militia in his writing was always surbodinaye, and dependant upon, private gun ownership.

  • JFree||

    the militia could not operate without private gun ownership.

    I'm not saying it can. What I'm saying is that private gun ownership isn't ENOUGH. We moderns made it a goal - an end - in itself. And in so doing took our eyes off the prize. It is the MEANS to an end. The end being - a free people. And while we have fetishized the gun itself as an end, we have turned ourselves into sheep - prodded at airports, spied on by our government, while cops commit 10% of murders, and pols successfully fearmonger votes by the tens of millions and steal trillions of dollars cuz the Muslims/Mexicans/Russians/ Chinese/NKoreans/blacks/deplorables are coming

    What a fucking stupid people we have become.

  • JFree||

    BTW - Here is the original version of the 2A as written by Madison:

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

    The last clause was eliminated by the House after some debate but looking at the whole thing, it's obvious the 2A was intended to prevent Congress from infringing on natural rights of individuals in its exercise of authority re militia. And to impress on the people the importance of militia in securing their liberty from a standing army.

    It wasn't about a gun fetish. Making it so now just compounds 200 years of failures

  • QuintessentialPhorto||

    The version ratified by the states and posted by SecState Thomas Jefferson contained one comma, not three. This is not mere semantics. The two additional commas add mischief to the interpretation.

    http://memory.loc.gov/cgi-bin/.....recNum=144

  • JesseAz||

    Buy a dictionary. Learn the difference between arms and ordnance. Come back and discuss with the adults.

  • Rossami||

    I'm curious what you think those definitions are, JesseAz.

    Ordnance generally does mean mounted guns or artillery (or the ammunition used in them) but arms means all weapons or armaments. Neither at the time of the Founding nor at the present is "arms" limited to the things that a single person can carry. At the time of the Founding, not only were military-grade muskets in common use, civilians frequently owned better, more capable weapons (the early rifles), cannons were privately owned and even major ships of war (the WMDs of their day) were in civilian hands.

  • loveconstitution1789||

    The Founders never limited Arms to only mean weapons that are single man portable.

    If they did, than all the Americans who leased their canons and ships to the Continental Army would have never gotten their canons and ships back after the Revolutionary War.

  • MikeP2||

    Learn your history. Privately held cannon, typically from ships, were the most critical arms during the revolution. The 2nd was clearly written to include all arms at the time, not just muskets as history illiterates would have you believe.

  • Bubba Jones||

    Gonzales fought a battle against Mexico over the right to keep and bear a cannon.

  • Joe Strummer||

    At the end of the day, countless Millions of Americans are sick and tired of guns. Sick and tired of murders and mass murders of innocent adults, teenagers, and children with military rifles designed for one thing only: killing human beings. Sick and tired of guns being easy for just about anyone to own, trade, or sell. Sick and tired of gun owners spouting about their ill-perceived rights based on an unclear and antiquated 200 year old amendment to our constitution that doesn't relate to today's society, crime, or mental health issues. Sick and tired of schools not being safe for children because of guns and the gun culture that has infected this country like a plague. Sick and tired of America having the highest crime and mass shooting rates of any country on the planet. Sick and tired of the Millions of guns being manufactured in this country every year. Sick and tired of the puppet organization NRA, who represent rich gun companies and CEO's who pay them to pay off politicians in order to advance their agendas and blind the public to their businesses, operations, and sales. Sick and tired of the ridiculous slippery slope argument and fear mongering of "take one gun they'll take them all". Sick and tired of gun nuts and collectors that get their jollies out of shooting and bragging about their guns. Sick and tired that these gun nuts can't find something better to do with their free time. SICK AND TIRED OF GUNS.

  • Red Rocks White Privilege||

    Rouhgly 2.5 times as many people are killed by alcohol as by firearms, but apparently you aren't as sick of that.

  • CatoTheChipper||

    Sick and tired of Joe Strummer's whining.

  • soldiermedic76||

    Not even close to the highest homicide rate or crime rate in the world. Wow, hyperbole much?.
    Also, millions of Americans are tired of you trying to take away our guns. Works both ways dipshit. We are a constitutional republic, not a true democracy. The Constitution will never be obsolete.

  • gagster||

    I'm sick and tired of people who think their irrational fears trump my rights.

  • Leo Kovalensky II||

    Oh my God. He's Hihnsane!

  • Elias Fakaname||

    Real Hihnsane, or Pamtomime Hihnsane?

  • Michael Hihn||

    The proof of his ignorance (and Fakabrain's) is elsehwere on this page.

    (Ridicule is in defense of aggression. Childish aggression)

  • Get To Da Chippah||

    Thanks for linking to the thread wherein your ass was rhetorically handed to you ... again.

  • Michael Hihn||

    Check the link I cite the exact relevant words of the ruling .... with a link so anyone can confirm

    PLUS SCALIA!!!!!!

    (Tone and boldface is defense -- and ridicule -- of aggression )

  • Red Rocks White Privilege||

    Dumbfuck Hihnsano hates this part of the Scalia writeup:

    3. The handgun ban and trigger lock, as applied to self defense, violates the 2nd Amendment.

  • Red Rocks White Privilege||

    Dumbfuck Hihnsano calling for a gun ban here.

  • Eidde||

    According to this, the judge is worried about the decline of jury trials in the U. S. Good on him, then.

    Then there's this:

    "Hon. Vincent Brogna, a distinguished justice of the Superior Court, approached Judge Young after his induction and said, "Now remember, have the courage of your own error."...

    "When trying cases, Judge Young believes there are two primary obligations of a trial judge. First, a judge's obligation is to teach the law. "Judges are law teachers. And everything we do revolves around that role." Second, a judge must
    be decisive. "I believe judges are teachers, but judges should decide; and therefore they've got to have the guts to make a decision." According to Judge Young, failure to act is often as injurious to justice as judicial error is....

    "...consistent with his belief that judges should be decisive, Judge Young often unflinchingly rules from the bench, reserving the right to explain his ruling in a written opinion."

  • Ken Shultz||

    "Scalia said in Heller that some weapons of primarily military use would not necessarily be covered by the Second Amendment ("weapons that are most useful in military service—M-16 rifles and the like—may be banned...").

    Scalia was wrong.

    If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''

    ----The Federalist Papers : No. 29

    http://avalon.law.yale.edu/18th_century/fed29.asp

    That was written by Alexander Hamilton--who served in the Continental Army under Washington and commanded a company that fought bravely at Yorktown and suffered heavy causalities. It is astounding to me that someone like Scalia, who supposedly believed in originalism, knew Federalist No. 29, and knew who Hamilton was and what he did could come to the conclusion that military arms aren't covered by the Second Amendment.

  • sarcasmic||

    The Framers never intended for there to be a standing army. That's why the defense budget must be rubber stamped every two years. The intention was to, if need be, summon the militia for two years at a time. The militia being citizens armed with military gear, courtesy of the 2A. Let rich people buy tanks and play with them on the battlefield. Save the government some money.

  • HeteroPatriarch||

    Hell, if I could get a loan on it, I'd buy an Apache and play with it on the battlefield.

  • Michael Hihn||

    That's why the defense budget must be rubber stamped every two years

    It is never rubber stamped. And it's every year ... as is the ENTIRE budget.

  • Michael P||

    The constitution says that Congress shall have the power "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years". Except for the implied rule that no Congress can bind a future one, there is no other time-related limit on budgets or appropriations.

  • Michael Hihn||

    Today -- that refers to multi-year projects, a TINY per cent of total defense spending.
    Do you seriously derny the total budget must be approved every year?

    Anything else?

  • Cy||

    It's interesting to consider what modern armor would look like if it were subjected to such a free chaotic market. Would we already have mechs?

  • Michael Hihn||

    Scalia was wrong.

    YOU are the Law of the Land! Who knew?

    And your Federalist quote says NOTHING about type of weapon, and IS NOT part of the later Constitution. WTF?

    It is astounding to me that someone like Scalia, who supposedly believed in originalism, knew Federalist No. 29, and knew who Hamilton was and what he did could come to the conclusion that military arms aren't covered by the Second Amendment.

    Federalist 29 says NOTHING OF THE SORT.
    Scalia DID use originalism ...and you HAVE seen the proof ... several times. One more time.

    PLUS he was reaffirming the 1939 precedent, US v Miller.
    Again, YOU cannot decide or modify the Law of the Land ... not even a speeding ticket.

  • soldiermedic76||

    It is hard to reaffirm Miller because it was never fully decided. The USSC referred it back to the lower courts, however the defendant was missing so the case was never adudjacated.

  • soldiermedic76||

    Ajudicated.

  • soldiermedic76||

    Also, isn't referring to Miller after Heller and MacDonald not similar as referring to Dred Scott afterthe brown decision?

  • Brett Bellmore||

    Not only was Scalia wrong about that particular point, he doubtless knew it, given the amicus briefs, and having read the Miller decision himself.

    In the Miller case, the Court ruled that Miller's possession of a sawn off shotgun would be protected by the 2nd amendment if it had military utility, and sent the case back for a determination of that fact. So, Miller actually stands for the opposite of Scalia's position: It's only guns with military utility that are protected!

    Neither Scalia nor Stephens were trying to actually uphold the 2nd amendment in Heller. Stephens wanted it ripped out the the Constitution, Scalia was content to replace it with a less threatening right.

  • Michael Hihn||

    He knew he was wrong, but
    a) Four justices concurred.
    b) He knowingly wrote a wrong ruling?

    AND ... Scalia also LIED ABOUT MILLER ... and FOUR JUSTICES co-conspired with him!

    The rukling is cited and linked here Educarte yourself.

  • loveconstitution1789||

    As you say Brett, Scalia was not this savior of the 2nd Amendment but wanted to replace it with SCOTUS precedent that gutted the actual 2A which allows for tanks, ships, canons, bombs, machine guns, grenades, helicopters, rockets, rifles, pistols, switch blades, 3D printed guns.

  • TangoDelta||

    This is what I don't understand about Miller. A short barreled shotgun absolutely has military utility in close quarters combat. Sure, it's not a 300 yard sniper weapon but clearing a room or a trench I can't imagine something more effective than a select/burst fire shotgun with a barrel that's only 10-12 inches or so. It just has to be long enough to allow a good forward grip. If it reliably cycles short 1.75" or 2" shells even a typical tube magazine would hold a reasonable number of shots for most rooms.

  • Brett Bellmore||

    Two things you need to understand:

    1) Miller was missing, likely dead, by the time the Court heard the case. At the Supreme court it was a trial in abstentia, with no counsel representing the dead defendant. So, the Court was of course not presented with the evidence that a sawn off shotgun had military uses. They probably were personally aware of it, but refused to take cognizance of facts that counsel hadn't presented.

    2) This was after "the switch in time that saved 9"; The Court was thoroughly cowed, and generally not enforcing Constitutional limits on federal power. The Court took the easiest and least damaging route to letting the government win, essentially by default, without any damaging precedent.

    We might have dodged a bullet there, because if Miller HAD been represented, he likely would have lost anyway, but the court would have had to hear and affirmatively reject all the relevant arguments, instead of ignoring them, setting some awful precedents.

  • JFree||

    knew who Hamilton was and what he did could come to the conclusion that military arms aren't covered by the Second Amendment.

    a large body of citizens, little, if at all, inferior to them in discipline and the use of arms

    'In discipline and the use' is not quite the same as 'keep and bear'. One can tell by the almost complete mismatch of letters and syllables.

  • Ken Shultz||

    He's justifying the right to keep and bear. That's the point.

    Why is the right to keep and bear arms, "necessary to the security of a free state"?

    The reason is because the only way average people are likely to become proficient with their weapons is through ownership and use. Average individuals cannot gain the proficiency necessary to hold their own against regular army without access to those arms--and private ownership ensures that access.

    In Hamilton's words from No. 20:

    "To oblige the great body of the yeomanry, and of the other classes of the citizens, 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 . . . . Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped".

    ---The Federalist Papers : No. 29

  • Ken Shultz||

    I won't copy the whole of No. 29. or address it point by point. I've already linked it above. Read it for yourself. Suffice it to say, The text of the Second Amendment matches No. 29 perfectly in both meaning and wording.

    "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."

    ----Second Amendment

    What is a well-regulated militia?

    Its the yeomanry (average people) who have attained proficiency with the the regular use of their weapons. "Well-regulated" isn't even archaic. Proficiency (training) is still the big difference between "regular army" and "irregulars".

    Why is a well regulated militia necessary to the security of a free state?

    Because they need to be able to hold their own against the standing army of a tyrannical government should one appear.

    There may be some aspects of this that are open to interpretation, but the question of whether standard military rifle is excluded from Second Amendment protections because of its military use shouldn't be one of them.

  • Ken Shultz||

    Why is it hard for people to believe that a revolutionary government provided for the means by which the "yeomanry" could rise up and overthrow future governments should they ever become tyrannical?

    I'm not big on social contract (in its entirety), but is there anyone here who doubts that oppressed people have a right to overthrow the dictator who is oppressing them?

    These are not radical notions. These are common;y accepted principles. Why is it so hard for some people to see them applied in law?

  • sarcasmic||

    These are not radical notions. These are common;y accepted principles. Why is it so hard for some people to see them applied in law?

    Because they don't want people to be free. They want people to be controlled.

  • Earth Skeptic||

    Maybe, but more critically, once you go all-in for the central role of government, whatever your political persuasion, you certainly don't want any threats to that government.

  • Marcus Aurelius||

    Do you believe the South had the right to seceed? Not a commonly held opinion (outside of Hazzard County).

  • HeteroPatriarch||

    "Not a commonly held opinion."

    It's been awhile since we played name that fallacy.

  • Ken Shultz||

    The question in light of social contract theory is whether they were being oppressed by a tyrannical government.

    At the time the first states seceded, I think the answer is "no".

    Do I think Sherman and Sheridan oppressed the people of Georgia and the Shenandoah Valley respectively?

    The correct answer is "yes".

    If Virginia hadn't seceded and the Union Army had oppressed them the way Sheridan did in his Shenandoah Valley campaign, they certainly would have been right to secede after all the slashing, burning, and pillaging.

    Regardless, the question is still about whether oppressed people have the right to revolt against their oppressors, and the answer is yes.

    And it should be no surprise if the people who signed the Declaration of Independence, which contains a list of grievances that break the social contract, thought that the American people should have the means to revolt against an oppressive government.

    And that's regardless of whether you and I agree on whether any particular grievance is sufficiently egregious to justify revoking the social contract.

  • Michael Hihn||

    Relevance?

  • Ken Shultz||

    "Do you believe the South had the right to seceed?"

    ----Marcus Aurelius

    "The question in light of social contract theory is whether they were being oppressed by a tyrannical government."

    ----Ken Shultz

    That isn't hard to follow.

  • Texasmotiv||

    He couldn't follow you didn't have enough boldface.

  • MarkLastname||

    Yes. That doesn't necessarily mean they had a right to attack Fort Sumter or keep their slaves, but secede? Yes.

  • LarryA||

    Do you believe the South had the right to secede?

    Absolutely. What they didn't have is the right to succeed. Winners make the rules.

    The U.S. is no longer a colony of Britain because Cornwallis surrendered to Washington. The Confederacy is still part of the U.S. because Lee surrendered to Grant.

  • Juice||

    Do you believe the South had the right to seceed? [sic]

    Did the American colonies have a right to secede?

  • Eidde||

    The Confederates, I think, stumbled right out of the gate, with the "just cause" part of the just-war principles.

    Just because there was a U. S. President opposed to the extension of slavery didn't mean the South had just cause to rebel.

    They could have claimed Lincoln would have incited some kind of slave rebellion (which was against his policy at the time), but even if they believed that, they had a way short of war to prevent a slave rebellion - freeing the slaves. No slaves, no risk of a slave rebellion, right?

  • mpercy||

    The South *did* secede. They wrote their own Declaration of Independence ("Declaration of Causes
    of Seceding States") after a secession convention. They formed a new federal government over the various Southern states. The Confederate States had a flag, a seal, a motto...They had elections.

    In a way, Lincoln acted like King George and refused to let them go and instead waged war. Unlike King George, the Union won its war over it rebellious erstwhile states.

  • Scarecrow Repair & Chippering||

    I'm not big on social contract (in its entirety), but is there anyone here who doubts that oppressed people have a right to overthrow the dictator who is oppressing them?

    Sayeth the founders:

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    I know you and almost everybody else knows that, but it can't hurt to refresh memories once in a while.

  • Joe_JP||

    The Congress was not a "revolutionary government" though when it crafted the Second Amendment.

    It's possible that a document in place to govern (things like free speech promote republicanism) has some means for the people to self-check in this fashion but it is a somewhat tricky proposition. It is particularly so when applying the right to the states via the 14th Amendment, which was written after the Civil War. See, e.g., Prof. Akhil Amar's argument that there was a changing understanding of the purpose of the militia after that conflict.

    I think the people have a natural right to rebellion, yes, but not sure that 2A specifically is there for that purpose. It was written to be used within, not to rebel.

  • Ken Shultz||

    "The Congress was not a "revolutionary government" though when it crafted the Second Amendment."

    My point wasn't that they were in a state of rebellion at the time.

    My point was that they were former revolutionaries themselves. The author of Federalist No. 29 spent four years fighting under Washington, and led one of the two columns that fought the decisive battle at Yorktown.

    The point is that it strains credibility to suggest that the language used in the Second Amendment (echoing Federalist No. 29) doesn't include military rifles or that the framers had no intention of arming the citizenry to overthrow future governments.

    They had themselves overthrown the government. They knew exactly what they were doing with the Second Amendment, and they knew why they were doing it, too. They wanted to make sure that the American people had both the means and the skills to overthrow a future govenrment--as they had done themselves.

    To argue that revolutionaries didn't realize what they were doing with the Second Amendment or why ignores both what they wrote on the subject and their own experience during the American revolution.

  • Ken Shultz||

    I just looked it up.

    Of the 39 delegates who signed the Constitution, 23 were veterans who had served in active duty in the Continental Army during the Revolutionary War. Almost all the others served in other ways.

    It's absurd to think that revolutionaries--who had overthrown their own government--didn't realize that the Second Amendment might cover military weapons to be used in a future revolution.

    . . . to the point that, you know, anybody who knows what they're talking about and makes that argument--you have to question their intellectual honesty.

  • mpercy||

    "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it..."

  • Longtobefree||

    There is no such thing as an assault weapon.
    The second amendment specifically applies to military weapons, as the second amendment applies to forming militia units from individual citizens who bring their own weapons. So it actually specifically covers military grade weapons, even more than 'personal defense'. Personal defense is possible because you can keep and bear in order to be available, if willing, for militia participation.

  • Sebastian Cremmington||

    No, the 2A concerns the state militias which were in existence prior to the Constitution and BoR.

  • Scarecrow Repair & Chippering||

    No, all the Bill of Rights are about the right of The People, individuals, not governments. State militias are not part of it.

  • Sebastian Cremmington||

    Wrong, several amendments in the BoR are federalism provisions including the 2A.

  • Scarecrow Repair & Chippering||

    If you are referring to the 9th and 10th, you just shot yourself in the foot. By explicitly stating that all other powers are reserved to the states, it's clear that just as with the other 7, they are individual rights which the feds cannot fuck with.

    Then along came the 14th, and said the states can't fuck with them either.

  • Sebastian Cremmington||

    The Establishment Clause is a federalism provision just like the 2A.

  • Joe_JP||

    Heck the WHOLE First Amendment is a federalism provision on some level -- Jefferson was okay with state libel laws. It limits "Congress," leaving more power to the states.

  • Brett Bellmore||

    The 2nd amendment is about an individual right which was viewed as protecting state militias, because so long as the people themselves were armed, you could always throw together a militia in a pinch, even if you'd neglected the militia system through sloth or intentionally.

    After all, a well regulated (Trained and equipped) militia might be necessary to the security of a free state, but what if the people running the state government don't want it to be free? Then they might deliberately discontinue the militia system.

    In which case, if the people themselves are armed, they can still form militias anyway, if necessary.

    So, it's two, two, two amendments in one: An individual right, AND a federalism provision.

  • Sebastian Cremmington||

    The Constitution was necessary because the AoC failed so the Framers feared anarchy just as much as they feared tyranny. The body of the Constitution deals with the regulation of the militia so the states (in theory) could not neglect them as they had done under the AoC. And before you say that was an imperfect system I direct you to the Electoral College which has been a disaster since very early on in our republic.

  • Brett Bellmore||

    To be specific, they feared the federal government becoming weak enough that the European powers could pick off individual states. The federal government was a defensive alliance, after all. They didn't value powerful government for its own sake, (Well, maybe Hamilton did...) but just thought it necessary.

    Though what they thought a powerful government would be dismissed as 'anarchy' by both major parties today.

  • soldiermedic76||

    The electoral college is not a disaster. It functions quite well and is necessary for a republic, we are not a democracy.

  • Sebastian Cremmington||

    Google "12th Amendment" numb nuts.

  • gagster||

    The electoral college is not a disaster. In fact, it saved us from one in the most recent presidential election.

    And I'm not sure why you think the twelfth amendment supports your claim. Originally, electors each got two votes and they voted for two different people. They didn't specify that one vote was for president and the other for VP. Whoever got the most votes became president and whoever came in second became VP. Not making the presidential election separate from the VP election was a mistake and the twelfth amendment fixed it. The EC was not a mistake and the twelfth amendment did not alter or remove it, with the exception mentioned above.

  • Sebastian Cremmington||

    The Electoral College has been a disaster since day 1 which is why the 12A was necessary. Exactly 0% would design something like the EC if we were starting from scratch today and the only reason it survives is because it always gives one side an unfair advantage which undermines reform.

  • Red Rocks White Privilege||

    The Electoral College has been a disaster since day 1

    Yet the country continues trundling on for almost 250 years with it in place.

    it always gives one side an unfair advantage which undermines reform.

    Sure, giant-populated states with bugman urban constituencies. That Hillary lost with the kind of built-in pre-EC advantages she had with California, New York, and Illinois already in the bag for her shows how shitty of a campaign she ran.

  • Rat on a train||

    It is always amusing how people think the word people in the Constitution refers to individuals in every other usage except for the 2A. I guess the members of the House should be chosen by the states, states have a right to assemble, states have a right to privacy, and the 17A didn't change the Senate to direct election.

  • Sebastian Cremmington||

    Scalia said "state" refers to America in the 2A even though our country is called the United STATES of America.

  • Rat on a train||

    People in the 2A refers to individuals.

  • Joe_JP||

    Even if the "states rights model" is correct, which I won't suggest here, individuals would be protected.

    People would be protected if the militia, open to all, provided the defensive purpose over some select standing army organization. Imagine, e.g., if free blacks were part of the militia in antebellum times and had a role -- in fact some power to appoint officers or even be one -- of domestic police in their communities. Being a member of the militia would be an individual right, as would the right to be a juror, another state institution.

    Now, again, I'm not denying the individual rights view is correct here.

  • Sebastian Cremmington||

    A proper reading of the 2A allows the states to craft gun regulations while the federal government sets minimums for the militias. So a state could allow individuals to possess automatic weapons as long as it complies with any Commerce Clause considerations. So if NY had a rash of violence caused by criminals with automatic weapons from VA then the federal government could get involved pursuant the CC.

  • soldiermedic76||

    Until you add in the 14A. Then that argument goes completely out the window.

  • Sebastian Cremmington||

    Read Thomas' Elk Grove v Newdow dissent to understand why a federalism provision defies incorporation.

  • loveconstitution1789||

    Except that the 14A incorporates the BoR to limit state's police powers now too.

  • Sebastian Cremmington||

    You have obviously not read Thomas' Newdow dissent...you can read it in less than 5 minutes.

  • Red Rocks White Privilege||

    John already owned you like a bitch on this, so don't try to pretend it's about a collective right.

  • CatoTheChipper||

    Hoplophobes are impervious to facts and reason. It's all about the feelz: guns are bad, m'kay. Don't shoot guns. People who shoot guns are bad, m'kay. Guns are bad.

  • Ken Shultz||

    "No, the 2A concerns the state militias which were in existence prior to the Constitution and BoR.

    As I quoted elsewhere in this thread:

    "To obligethe great body of the yeomanry, and of the other classes of the citizens, 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."

    ----Federalist No. 29

  • Ken Shultz||

    The purpose of the Second Amendment is to provide access to guns to average people so that they will be proficient in their use and, thus, have the arms and skills necessary to form a militia and hold their own against regular army.

    This future militia which rises up to meet the standing army of an oppressive dictator is to be made up of not only "the great body of the yeomanry" (small, subsistence farmers) but also "the other classes of citizens"--and that indicates that they are not talking about some pre-existing state militia--which already has the training required so as to have the character of regular militia.

    They're talking about why average people who are not in the present militia should have the right to keep and bear arms--which is so that in the ownership and regular use of their arms, they can acquire the shooting skills necessary to combat a standing army AS IF they were a regular militia.

    There is no reason to think that the Second Amendment, which follows both the logic and language of Federalist No. 29, is limiting gun ownership to a pre-existing state militia.

    In fact, it is ludicrous to think that Hamilton, who served under Washington for four years as they trained farmers to serve in the Continental Army against the British and the Hessians, wrote Federalist No. 29 without any consideration for the skills and arms average people need in order to hold they own against regular army.

  • Michael Hihn||

    So it actually specifically covers military grade weapons, even more than 'personal defense'.

    When were you appointed to SCOTUS, and how many other judges concurred with your y ruling?

  • Brett Bellmore||

    The entire Court concurred, in the Miller case. Remember, they ruled against Miller on the basis of a sawn off shotgun NOT being a military weapon, he would have prevailed if the Court had been on notice that it had military uses.

  • Michael Hihn||

    (laughing)

  • Red Rocks White Privilege||

    Dumbfuck Hihnsano and his appeals to authority.

  • Duke of url||

    This is from the same state that kept electing Teddy for forty+ years, right?

  • Hank Phillips||

    Hey... Watch how you talk about the Hero of Chappaquiddick!

  • HeteroPatriarch||

    He did manage to save the Lion of the Senate. While spectacularly drunk, to boot.

  • Duke of url||

    Judge Billy and A.G. Maura are in serious need of tar & feathers.

  • Ken Shultz||

    Dude,

    That jackass may no longer be a U.S. Attorney, but we should be considerate of Reason's position here.

    They don't need the legal bills or the headaches.

  • Duke of url||

    My bad, I meant that in a purely rhetorical metaphoric way.
    Mostly.

  • Ken Shultz||

    Breet Pahara taught us nothing if not that the U.S. Attorneys office has no appreciation for idiomatic language. It's like they went to law school and came out the other end with no comprehension of the English language.

  • Sevo||

    "...and came out the other end..."
    Yep, every morning. Pretty sure that was Breet who went down toilet today.
    Hey, Breet! Was that you? Brown and cylindrical?

  • Marshall Gill||

    Legal bills?!! They fucking rolled over like the statist suck holes they are and gave up commenters IP addresses!!! Nick probably blew Preet personally.

    Who ever runs this place sucks balls. They had an opportunity to stand up for "free minds" and instead folded like Republicans in spending negotiations. Yeah, a couple of commenters who don't get paid to stand up to government injustice had some legal bills, but it is doubtful that Reason did. Even then it wouldn't have come out of any individuals pockets.

    This place is about as "libertarian" as Hihn. I do come here occasionally to laugh at the demented old fool but that is all. There is nothing in support of Liberty here. A pity.

  • Ken Shultz||

    "They fucking rolled over like the statist suck holes they are and gave up commenters IP addresses!!!"

    In addition to everything else that is wrong with this comment, I remember Reason contacting each of the individuals and asking them if they didn't want Reason to divulge their information to the U.S. Attorney.

    Each of the individuals gave their consent.

    I remember that not only from Reason's explanation, once the gag order had been lifted, but also from the individuals themselves explaining what happened in comments. The commenters said Reason asked them if they didn't want their information given to the U.S. Attorney, and they said they gave their consent for Reason to turn over their information.

  • Duke of url||

    So, nobody needs a gun made of sodium chloride?

  • HeteroPatriarch||

    https://tinyurl.com/yctlmfu6

    From my cold dead hands.

  • Duke of url||

    * No longer available in Massachusetts

  • Scarecrow Repair & Chippering||

    Friend got one of those. Pretty impressive! It's winter, there aren't many targets around, but he'll get some soon.

  • Hank Phillips||

    Brian does some right purty hairsplitting there. My time is better spent biking over to the precinct 144 polling place and casting that libertarian spoiler vote. Some 4000 such votes got the court to write the LP Overpopulation plank into the Roe v. Wade decision. Four million such spoiler votes were cast in the recent election. Votes are those things the looters point to as their mandate for sending First Responders™ to beat you into obeying. The ones I cast for LP candidates carry lots of legislative leverage.

  • MikeP2||

    Molon labe, bitchez

  • MSimon||

    Mol on labia, bitchez

  • SIV||

    "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

    Ithaca Auto & Burglar

  • Michael Hihn||

    Your link does not exist, and web sites cannot overrule SCOTUS.

  • Michael P||

    The link most certainly exists, the web page it points to exists as well, and it discusses a short-barreled shotgun (with a pistol grip, no less) that was made for the commercial market well before Miller came along. It mentions that Chicago banks were some of the first buyers of such guns, as they were useful for defense of self and property.

  • Michael Hihn||

    Chrome:

    This site can't be reached
    www.forgottenweapons.com's server IP address could not be found.

    Firefox

    Hmm. We're having trouble finding that site.
    We can't connect to the server at www.forgottenweapons.com.
    If that address is correct, here are three other things you can try:
    Try again later.
    Check your network connection.
    If you are connected but behind a firewall, check that Firefox has permission to access the Web.

    Edge

    Hmmm...can't reach this page
    Try this
    Make sure you've got the right web address: https://www.forgottenweapons.com
    Search for "https://www.forgottenweapons.com" on Bing

    And websites cannot overrule SCOTUS.

  • Sevo||

    Firefox:
    "Ithaca Auto & Burglar – 12ga"

    Plug in the computer, you fucking idiot.

  • Michael Hihn||

    My computer was not plugged in ... but ... somehow ... managed to display three error pages .. each in a different browser.

  • JoeBlow123||

    Just for reference, it worked for me on FIrefox no problems. Perhaps you are in China and it is blocked?

  • Sevo||

    Mike is so retarded, he can't even open links, let alone provide them.

  • John C. Randolph||

    This shyster is a goddamned weasel looking for ways to pretend that the second amendment doesn't say what it says.

    -jcr

  • Michael Hihn||

    Scalia was a goddamned weasel!
    Who knew?

  • Cyto||

    You have to ignore not only the entire discussion surrounding the creation of the second amendment as is evidenced in the writings of those who were there, such as Madison and Hamilton, you have to ignore the actual words of the second amendment.

    "A well regulated militia, being necessary to the security of a free state"

    That's the part that the anti-gun crowd keeps wanting to twist to say there is no individual right to keep and bear arms. The part that tells you in no uncertain terms that it applies to military weaponry.

    You have to be a liar or an idiot to espouse a this judge's view. I'm going with liar for the lot of them. They know damn well what the amendment says. They just don't like the implications, so they chose to ignore it. The same goes for the 9th and 10th amendments, and in many instances for the 1st, 4th and 5th amendments as well. These all carry absolute proscriptions that make things very difficult for those who want to wield power.

  • sarcasmic||

    Anti-gun people don't want a free state. They want everyone to be controlled.

  • Sebastian Cremmington||

    The pro-gun crowd needed a guy with a 206 IQ (Volokh) to write law review articles to get the result they desired with respect to the 2A. If the 2A is so plain spoken why was it necessary for a guy with a 206 IQ to "interpret" the language of the amendment over 200 years after it was ratified??

  • Scarecrow Repair & Chippering||

    Because coercive government attracts corruption like shit brings flies. Because the people who have better things to do than answer that call to corruption do those better things, while the ne'er do wells who love the smell of corruption go do that corruption, and the best way to preserve their corrupt power is by controlling the public, and one of the keys to that is to disarm the public, of guns, independence, and information.

    Any more questions, dipshit?

  • Michael Hihn||

    Volokh has never sat on the Supreme Court, and was not even alive in 1939. Seriously.

  • Get To Da Chippah||

    Your fallacy is... Appeal to Authority

  • Michael Hihn||

    I never mentioned ANY authority,

  • Get To Da Chippah||

    The Supreme Court does not constitute an authority to you?

  • Naaman Brown||

    For the record, they were discussing the influence Volokh's law review articles that were cited in the Heller decision 2008.

    Eugene Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).

    Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006).

    Eugene Volokh, "Necessary to the Security of a Free State," 83 Notre Dame L. Rev. 1, 5 (2007).

    No body claimed that Volokh was on the supreme court or invloved in the Miller 1939 case.

  • Naaman Brown||

    "... influence of Volokh's ..."

  • Sebastian Cremmington||

    The 2A is so "commonplace" that it took a guy with a 206 IQ to explain it over 200 years after it was ratified! ;)

  • Naaman Brown||

    Actually I have read explanations of the 2A and the right to keep and bear arms long before Volokh commented; his merely confirmed those explainations.

  • Sebastian Cremmington||

    Ted Cruz' amicus was 100% wrong so the notion you had a superior understanding of 2A scholarship than Cruz with his big brain is absurd. Volokh needed every single of his 206 IQ points to "thread the needle" to produce the outcome of Heller.

    I engaged many people about the 2A prior to Heller and none of them ever argued "state" referred to America. Also Volokh's law review articles have a glaring mistake in that he fails to account for the fact the states controlled the militias because the Constitution gave the power to appoint officers to the states ensuring the militias would remain loyal to the states.

  • Red Rocks White Privilege||

    The 2A is so "commonplace" that it took a guy with a 206 IQ to explain it over 200 years after it was ratified! ;)

    Or, you could just read the historical examples that Scalia included. That you think it took someone with a 206 IQ to make that clear, you're dumber than you're showing here.

  • Sebastian Cremmington||

    You must have a reading comprehension issue because history is obviously on the side of the dissent. Even someone with your 100 IQ could have written the dissent had they seen the movie "Tombstone" and been an adult in the 1980s when even Texas had highly restrictive handgun laws.

  • Red Rocks White Privilege||

    You must have a reading comprehension issue because history is obviously on the side of the dissent.

    No, it's not, but you're welcome to keep pretending it is.

    Even someone with your 100 IQ could have written the dissent had they seen the movie "Tombstone" and been an adult in the 1980s when even Texas had highly restrictive handgun laws.

    You're knowledge of western history is about as extensive as that of gun laws, apparently.

  • Sebastian Cremmington||

    Wyatt Earp was a "gun grabber" like Giuliani.

  • Red Rocks White Privilege||

    Wyatt Earp was a "gun grabber" like Giuliani.

    That was a movie, dumbshit.

  • Sebastian Cremmington||

    Wyatt Earp was a real person that did real things brainiac. One of the things Earp did was grab guns and quite a few conservatives don't like Earp.

  • Red Rocks White Privilege||

    And "Tombstone" was a movie that was highly dramatized, yet you seem to think it all went down exactly like it was portrayed. That your pea brain has to characterize him as a "gun-grabber" shows how limited your understanding of the American West and the right to bear arms really is.

  • Rat on a train||

    Why did it take so long to overturn Plessy v Ferguson? Could it be because those in power didn't want to follow the Constitution?

  • Michael Hihn||

    The part that tells you in no uncertain terms that it applies to military weaponry.

    How? Citizens did bring military weapons from home ... confirmed by at least two Supreme Court Rulings., and the Law of the Land since 1939. That's 79 years,

    The only weapons protected by 2A are the weapons in common use at the time -- closer to what we now call a hunting rifle, plus non-automatic pistols. Again, since 1939. .

    That's why the NRA was powerless on the Assault Weapons Ban (what was called) ... for ten long years. It could ONLY be repealed or expire. It expired, having been enacted for only 10 years. Because 1939,

  • Longtobefree||

    Well, Mikey, it is time for you to cease your wanton assault posting.
    You see, your first amendment right to free speech is limited to unamplified vocal utterings, and printed matter run off on a hand press set by hand with lead type, and hand distributed. That is all the first amendment applies to, as that is all there was at signing.
    So, no internet at signing, no free speech on line.
    Bye.

  • Michael Hihn||

    Boldface in defense of aggression

    Scalia ridiculed you -- in Heller -- KNOWING there'd be "frivolous" bullshit like that

    Heller ruling, Scalia

    Page 8: "... 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, ... and the Fourth Amendment applies to modern forms of search...

    I anticipated bullshit too!

    Well, Mikey

    (smirk) Anything else?

  • Sevo||

    Michael Hihn|4.7.18 @ 10:23AM|#
    "Boldface in defense of aggression"

    Boldface in support of idiocy, you fucking retard.

  • VinniUSMC||

    Try reading the material you quoted again, idiot.

    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, ... and the Fourth Amendment applies to modern forms of search...

    What argument have some made? Well, you only need to look at Hihntard's previous post:

    "The only weapons protected by 2A are the weapons in common use at the time -- closer to what we now call a hunting rifle, plus non-automatic pistols. Again, since 1939. .

    Scalia directly contradicts your continued fucking moronic reasoning, in the very text that you keep quoting and misusing. Go back to kindergarten and learn to read, moron.

  • Leo Kovalensky II||

    You're fighting a battle that can't be won. Hihn has been called out for his idiocy in interpretation of words that anybody with a 5th grade education can understand, yet he still posts this language in support of the exact opposite of what it actually says.

  • Rat on a train||

    But bold text and self links make it truer.

  • Red Rocks White Privilege||

    (smirk) Anything else?

    Dumbfuck Hihnsano called for a gun ban here

  • Cyto||

    You have to ignore not only the entire discussion surrounding the creation of the second amendment as is evidenced in the writings of those who were there, such as Madison and Hamilton, you have to ignore the actual words of the second amendment.

    "A well regulated militia, being necessary to the security of a free state"

    That's the part that the anti-gun crowd keeps wanting to twist to say there is no individual right to keep and bear arms. The part that tells you in no uncertain terms that it applies to military weaponry.

    You have to be a liar or an idiot to espouse a this judge's view. I'm going with liar for the lot of them. They know damn well what the amendment says. They just don't like the implications, so they chose to ignore it. The same goes for the 9th and 10th amendments, and in many instances for the 1st, 4th and 5th amendments as well. These all carry absolute proscriptions that make things very difficult for those who want to wield power.

  • Michael Hihn||

    You have to be a liar or an idiot to espouse a this judge's view. I'm going with liar for the lot of them.

    Huh? That's been the law of the land since 1939. US v Miller at SCOTUS.

    SCOTUS decides, not you. You can merely disagree, That's how our Constitution works.

  • Nardz||

    Just shut the fuck up you useful idiot.
    This whole thread is polluted with your "but SCOTUS says so" immaturity.
    But it is great to see such a staunch supporter of Dred Scott and Citizen United and Roe v Wade rulings here.
    Your existence is completely useless to free individuals.

  • Michael Hihn||

    You're STILL confused? The ISSUE is ,.. What is the Law of the Land.

    This whole thread is polluted with your "but SCOTUS says so" immaturity.It's NOT the Law of the Land??? BECAUSE you're ... mature .. where mature means YOU can overrule SCOTUS!!

    Dred Scott was the Law of the Land .. until it was overturned The other two still are.

    Anything else?

  • Nardz||

    You seem to be confused.
    I wasn't taking issue with law.
    The issue is, rather, your existence and the crime against humanity every breath you take is.
    End.

  • Cyto||

    At risk of doing the absolute wrong thing in responding to a troll, lets be clear:

    The constitution is absolute and unequivocal. The right of the people to keep and bear arms shall not be infringed.

    That allows for none of the controls that our national government has put in place. The ATF is clearly unconstitutional. Banning machine guns is clearly unconstitutional. Banning stinger missiles is clearly unconstitutional.

    It isn't even a close call. The letter of the law is not ambiguous on this topic.

    Whether this is a good idea is an entirely different discussion. One that I don't think anyone on either side is ready to undertake. It is perfectly clear that were we to strictly follow this limitation on federal power, there would be loads of negative consequences.

    But that should not be how the courts work. If the law says "not infringed", then the courts should set about making sure that the right is not infringed, until such time as the law is changed. Deciding "this is a bad law" all on their own and making up an interpretation to fit their preferred solution is a terrible idea.

  • gsteele531||

    Were it not for the fact that the Supreme Court refused to address the issue for decades, allowing a body of law and precedents to be established as the law of the land, we would not be at this juncture. In all likelihood, a training and discipline would have evolved around the use of armaments of many kinds, changing the culture as a result, and most likely significantly diminishing violent crime - both by natives fearful of inevitable deadly retaliation, and foreign interlopers, who would be less inclined to ply their murderous and destructive ways north of the border when a bevy of armed and trained citizens would be afoot to change their vocation with a lump of lead. Now we are stuck with a manure pile of precedent, law, and habit of mind that will take an enormous muckrake to clear out of the stable, courtesy of SCOTUS inaction which would have kept us on the original and proper course.

  • Eidde||

    See above - the judge believes it's often better to be decisive than to be strictly, technically right. And he often delivers judgments first and opinions later.

    I also suspect that he was infected by Frankfurterian/Borkian "judicial deference" ideas back when many conservatives thought the problem with the left was that it was using the courts to overrule the decisions of duly-elected government bodies.

    Add to this that for most of his career the 2nd Amendment was not even seen as incorporated against the states.

  • Cyto||

    Huffington Post has a story about a police shooting of an unarmed man that has generated some protests.

    The police just released video showing his behavior leading up to the shooting. He is going around the area aggressively pointing something that looks very much like a gun at people on the street. He certainly has them believing he's about to shoot them, as several of them duck and run.

    Police claimed he took a two-handed shooting stance and pointed what looked like a gun at them, causing them to open fire.

    Local activists decried the shooting and people are all worked up.

    But looking at the video, it is hard to put the blame on police for this one. The guy is clearly mentally ill, as his mother states. But in this context, even the knowledge that he was mentally ill probably wouldn't have changed things much. Only knowing that he was carrying a piece of bent pipe, rather than a gun, would have given them an opportunity to handle things differently.

    See? Libertarians who are skeptical of police use of force can side with police when they are right... even if the police were mistaken in assessing the true threat. Now let's see the other side start taking responsibility when the facts don't paint them in such a good light.

  • Eidde||

    You're a racist who's covering up for racist cops shooting an unarmed black man.

    /sarc

  • Mark22||

    Standing on the corner where her son was killed, Vassell's mother, Lorna, wondered why police didn't shoot him in the leg instead. "He did not deserve [for] a piece of iron in his hand for a cop to kill him," she said.

    Quite right, he did not deserve this. It is quite disturbing that his mother neglected her parental responsibility and didn't protect her mentally ill and incompetent son better and kept him from running around the neighborhood threatening people.

  • Scarecrow Repair & Chippering||

    +1

  • Mark22||

    We can ban things if we stick "assault" in front of them?

    "Ban assault feminists."
    "Ban assault health care."
    "Ban assault taxes."

    I like this.

  • MarkLastname||

    Ban assault bans.

  • Longtobefree||

    Most importantly, ban assault posts?

  • Sevo||

    "Judge Has No Idea What "Assault Weapon" Means"
    News at 11!

  • Michael Hihn||

    .inb4 Hihnfection

    Educate yourself here.

  • Get To Da Chippah||

    He'll learn what an idiot you are.

  • Michael Hihn||

  • Sevo||

    Mike screws up yet one more attempt at a link!

  • Michael Hihn||

    THANKS!

    Here

    I can now add another one here!!

  • Red Rocks White Privilege||

  • XM||

    It seems like Hihn has been misrepresenting Scalia's quotes.

    Scalia said the second amendment does not entitle you to weapons used by the military, which are "unusual and dangerous". That sort of addressed the militia concept. No makeshift militia could ask for M16 for the defense of the nation.

    But he stated that the second amendment guns commonly used for personal and home defense are allowed by the second amendment. Meaning whatever guns the "militia" used to defend themselves against the Brits at that time, or most semiautomatic weapons.

  • Michael Hihn||

    It seems like Hihn has been misrepresenting Scalia's quotes.(snort) You're STILL wrong, cit only yourself. le I cite, and link to, the rulings. There are two of them.

    Proof in the thread following this one.

    Meaning whatever guns the "militia" used to defend themselves against the Brits at that time, or most semiautomatic weapons.

    (wtf) You just said, in public, that citizens had semi-automatic weapons at ratification ,... even though they did not exist.

    Did airplanes carry them to whatever battlegrounds occurred.

  • Michael Hihn||

    Corrected (XM's words not identified at first. , plus added more proof)

    It seems like Hihn has been misrepresenting Scalia's quotes.

    You cite your opinion -- which is wrong. As proven by actual SCOTUS rulings (two since 1939). with links to the proof. See the thread following this one.

    Meaning whatever guns the "militia" used to defend themselves against the Brits at that time, or most semiautomatic weapons.

    Semi-automatic muskets?

    Those who served in militias in that earlier war had furnished their own weapons. The guns would have been muskets, fowling pieces or no weapon at all. They brought and carried their own provisions. Although the musket would be carried over to the new war, some weapons had seen its zenith in the old conflict. The matchlock musket was obsolete by 1775, but still retained by some families
  • ace_m82||

    Hihn's opinion is that government is apparently voluntary:

    "Government - like Kiwanis, dumfuck -- is a VOLUNTARY ASSOCIATION.
    ITS MEMBERS AGREE, FREELY AND VOLUNTARILY -- TO JAIL THEMSELVES FOR REFUSING TO PAY THE DUES."

    www.reason.com/blog/2018/01/17.....nt_7100385

    "Don't like it? EMIGRATE."

    "See .. government DEFENDS rights."

    www.reason.com/blog/2018/02/21.....nt_7150853

    As the Nazis were elected in 1933, they didn't violate rights. Also, the Jews were free to leave!

    Me: Were the Jews in Germany in the 1940s free to leave?
    Hihn: ANOTHER MASSIVE FUCKUP!!! Of course they could,,.,.and many did. YOU THINK HITLER WANTED THEM TO STAY!!

  • Michael Hihn||

    Nothing new. That was ruled a Second Amendment limit in 1939 (US v Miller), and reaffirmed by Scalia's Heller ruling.

    Justice Scalia's ruling in Heller, SCOTUS website.

    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, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

    .... as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty..... But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

    Plus, NO rights can be absolute, per the definition of unalienable, because such rights can be in conflict with each other..

    Part 2 is from the Miller precedent

  • Michael Hihn||

    Part 2

    For complete context, read it at the link

    US v Miller (1939)

    The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

    ....... "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

    ...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

    EXPLICITLY rejects military weapons ... Continues for a few hundred words, in great detail on 2A limits --- which is why the NRA was TOTALLY HELPLESS against the Assault Weapons ban (what it's called) for TEN LONG YEARS..

  • Brett Bellmore||

    ".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.

    Good lord. You actually quoted the part where they said the sawn off shotgun wasn't wasn't military, and thus wasn't protected, and interpreted it to mean that military weapons weren't protected! That's got to be the worst example of gun-aversive dyslexia I've ever seen.

    Did the double negatives confuse you?

  • ||

    Hihn's selective reading of Scalia is bizarre. I'd say the way he shoves his hand up Scalia's ass to use him like a puppet and then sucking his Scalia-puppet's dick is pretty gay but the fact that he pretty much waited for Scalia to die first makes it a pretty clear case of necrophilia.

  • Brett Bellmore||

    I've pretty much had to conclude that Hihn is mentally ill. Nothing else fits.

  • Michael Hihn||

    Thinks quoting one section of the ruling discredits all other sections of the same ruling.

  • Sevo||

    Fuck off and die mike; the world will be instantly smarter.

  • Cyto||

    Further, the notion that a sawed of shotgun would not be used by the military is specious at best. A military doing battle in trench warfare or storming the beaches might have little use for such a short-range weapon, but a military doing battle in cramped quarters in an urban setting might find use for a short-barreled area weapon like a sawed off shotgun. Packed with buckshot, it should be pretty effective at clearing rooms and hallways.

  • Red Rocks White Privilege||

    And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

    Thanks for confirming that semi-automatic weapons, being in common use at this time, are suitable for use under the 2nd Amendment.

    You fucking dummy.

  • Get To Da Chippah||

    Justice Scalia in Heller:

    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.

  • Michael Hihn||

    HOW DOES THAT EXCERPT CHANGE ALL OTHER EXCERPTS.

    Bearable refers to keep and BEAR arms.

    "Bearable arms": are the one he had ALREADY defined, as limited. Here he just confirms that a modern hunting rifle is bearable even if it did not exist at ratification, How does that change WHAT is bearable, He's ridiculing the guntards who say the First Amendment does not protect modern speech ... . the Fourth Amendment does NOT protect against modern\m searches (like hacking a cell phone) Educate yourself here.

    Why was the NRA POWERLESS to block the 1994-2004 Assault Weapons Ban (what it's called) .. for ten long years?

  • Mark22||

    "Bearable arms": are the one he had ALREADY defined, as limited.

    "Bearable" means what it says: arms that are small/light enough so that a person can "bear" them, as opposed to stationary cannons and atom bombs.

    Why was the NRA POWERLESS to block the 1994-2004 Assault Weapons Ban (what it's called) .. for ten long years?

    Because there are a lot of authoritarian thugs like you in government.

  • Cyto||

    At least it is a somewhat plausible argument to say that putting "keep and bear arms" in the amendment means that only things you can pick up and carry are covered, but I really don't think it is a winning argument. Their writings at the time make it clear that they want an armed populous that is capable of repelling foreign invaders and overthrowing a corrupt or tyrannical government.

    Neither of these tasks can be readily accomplished if "the people" are limited to small caliber pistols. They clearly had rifles, shotguns, pistols, swords, crossbows, bow and arrows, cannons, explosives, and anything else you could fight with in mind. Private citizens commonly owned all of these and more. (not all citizens... but if you were running a shipping company, you'd be likely to own some cannons to protect your merchant vessels. )

  • Get To Da Chippah||

    Given that the Constitution implicitly recognizes that armed warships existed in private hands because they empowered the federal government to issue letters of marque and reprisal, why are cannons not covered under 2A? They can certainly be brought to bear on an enemy, albeit not as easily as a firearm.

  • TangoDelta||

    Why was the NRA POWERLESS to block the 1994-2004 Assault Weapons Ban (what it's called) .. for ten long years?

    The NRA wasn't powerless. It was never challenged on 2A grounds. That is likely because given the makeup of SCOTUS at the time, with four votes assured to uphold the law; the safer move was to wait for it to expire or hope for a shift to less uncertainty in the court.

  • Mark22||

    Plus, NO rights can be absolute, per the definition of unalienable, because such rights can be in conflict with each other..

    Which specific right of yours is my right to own weapons in conflict with?

  • Rat on a train||

    The right to feelz which trumps all other rights. It is an authoritarian catch all.

  • Cy||

    So, what happens next? Is there enough fuel for a spark? If the spark lights, how far down the rabbit hole of revolution do we go?

  • PeteRR||

    This is the fruit that the USSC refusing to defend Heller has borne: a thousand jurisdictions interpreting the 2nd Amendment as they choose. Entire swathes of the country effectively disarmed.

  • Brett Bellmore||

    Pretty darned small swaths, at this point. Though I'm sure they'd like to reach that point.

  • Jerryskids||

    Examine enough penumbras and emanations and the law can mean whatever you want it to mean.

  • ManBearPig||

    Scalia it seems was saying that it "may be argued" that weapons most useful in military service "may be banned." He didn't assert it was true. In fact, it reads as though he was implying that even the M16 and M4 would be perfectly within the scope of the second amendment if they were in "common use."

    At least one purpose of the amendment was to ensure that weapons most useful in military service would in fact be in the hands of the people, i.e., the militia.

    If this is their tact, then perhaps it is time for the Governors of the several states to "organize" their militias.

  • ManBearPig||

    In an opinion that unambiguously asserts an individual right to keep and bear arms, district and circuit court judges are clinging to a single sentence in it to claim that "military style" rifles may be banned.

    "It may be objected that if weapons that are most useful in military service—M16
    rifles and the like—may be banned, then the Second Amendment right is completely
    detached from the prefatory clause." D.C. v. Heller

    Judges are taking this sentence out of its plain context to arrive at an untenable position given the balance of the opinion. Scalia is clearly saying that it is impossible to ban "weapons that are most useful in military service," because in doing so it would rend the amendment in two. That would be a rewriting of the amendment that is beyond the purview of the court..

  • Emotional Opposition Animal||

    They mangle the Constitution itself to avoid the clear meaning of the text and write new meanings into it, so it's not surprising they do the same to a SCOTUS decision.

  • ManBearPig||

    Is it done with everything they touch or only guns? These activists are unfit for the bench but doubtless they have been put their by ideologues to be ideologues.

  • Rat on a train||

    It is done with everything. They decide the desired result, than write a rationalization. The ends justify the means.

  • Cyto||

    Which is my chief complaint.

    The entire point of writing the constitution was to ensure that we would have a government of laws, not a government of men. Interpreting the constitution as they have - to get the result that they feel is just or proper - simply destroys this precept, leading us straight back to a government of men.

    Properly interpreted, the constitution is untenable. The second amendment would allow ordinary citizens to own any sort of weapon they'd like. I don't think any of us are OK with the guy on the 7th floor of our building owning a 2,000 pound bomb.

    Nor are we OK with a myriad of other things being immediately wiped away should we go with a strict interpretation of the constitution. (say goodbye to welfare, medicare, medicaid, prescription drug benefit, foreign military bases without explicit congressional approval, scientific research funding.... the list is very, very long...)

    The right answer was to make small and incremental changes to the law to allow limited powers to accomplish the goals we'd like. But we didn't do it that way, because it was too hard.

    So here we are. With a constitution that pretty clearly doesn't allow the feds to do about 90% of the things they do.

  • tokyokv||

    Another moron misses the point (out of either ignorance or dishonesty). M16s are NOT the same as AR15s. One is fully automatic and has never been freely available to civilians, and the other is the most popular civilian rifle in the USA. If that's not "in common use", the English language is completely useless.

  • NotAnotherSkippy||

    Remind me what a "State" and a "tax" are again.

  • Bubba Jones||

    The judge made a decision and then rationalized it.

    Just like everyone else.

  • Mark22||

    Scientists call that motivated reasoning.

  • Tony||

    Few better examples than Scalia in Heller. I wonder if you prefer his more direct dissents in Lawrence and Obergefell, which, to paraphrase, "Some people think gays are icky, so they shouldn't have rights."

  • Brett Bellmore||

    I think it was more like, "Almost all of the law is based on somebody finding some behavior objectionable. If that's not a good enough reason to outlaw something, we might as well burn all the law books."

  • Bubba Jones||

    Oh and I believe the 2nd amendment was intended to protect the states from Federal overreach. Not to protect the people from state policy.

    So this does not offend me.

  • Michael Ejercito||

    That was true of the entire Bill of Rights prior to 1868.

  • Emotional Opposition Animal||

    It says "right of the people", not "right of the states". If the framers just wanted to prohibit the feds from disbanding state militias, why didn't they just write that?

  • Rockabilly||

    FUCK YOU COMMIES!!!

  • Tony||

    Isn't it interesting that Scalia, in contorting the 2nd Amendment to protect an individual right to own guns for self-defense and other non-military purposes, eviscerated the clear plain reading of the 2nd Amendment, which is to provide for an alternative to standing armies?

    If it would have conferred an individual right to own a gun, and it might have, it would seem that it means exactly those weapons armies would use. But he did what all gun nuts did and pretended the first half of the sentence was basically contentless. Oh well, in the end I think the gun nuts won out. It's not like there was a right to an "assault rifle" that existed before.

  • Careless||

    eviscerated the clear plain reading of the 2nd Amendment, which is to provide for an alternative to standing armies?

    Uh, the plain, clear meaning of the 2nd is that the right to keep and bear arms shall not be infringed. Now, it's true that the stated purpose of the Amendment is to keep the militia armed, but there is no government power granted through it, only a block on government power.

  • ManBearPig||

    The militia clause is a purpose, not the purpose. It does not limit the operative clause. There are many other reasons the populace ought to be armed.

  • Cyto||

    One of the stated (by the people writing the amendment) reasons was for the people to be a viable threat to violently overthrow the government. You can't really do that if only the government has weapons.

  • Leo Kovalensky II||

    Tony, we get our rights not from some pieces of paper, but from the fact that we are people. Point to any enumerated power in the Constitution that allows the federal govt to ban any guns?

    Even if the 2A only applied to militias like you claim, it doesn't change the fact that we have as natural rights the right to defend our property, regardless of the Constitution. The fed gov also has no power to take my property, save for public use through eminent domain.

    Countless rights are not explicitly mentioned in the Constitution yet still exist. This one, the right to bear arms, is explicit and yet still morons like you still think you can rationalize it away.

    I think the most accurate description of your position is tyranny.

  • Tony||

    Actually our rights come from some pieces of paper. Otherwise your idea of what rights we have is as valid as mine.

    What about the right of people living in communities to regulate guns for public safety? I think that should be a right. It comes from being a people.

  • Leo Kovalensky II||

    You can't exercise your supposed "right" without violently taking property from others. Even a kindergartner knows it's not fair to take from others or to hit. See... It's really not that hard to get along in life!

  • Tony||

    Kindergartners also learn about the necessity of sharing.

  • Red Rocks White Privilege||

    What about the right of people living in communities to regulate guns for public safety?

    We have gun regulations. You seem to think they don't exist.

  • Red Rocks White Privilege||

    in contorting the 2nd Amendment to protect an individual right to own guns for self-defense

    Well, since individuals owned guns in the colonial era for the purposes of self-defense, it makes sense that this right was preserved.

    That shitlib wastes of life don't like it and would prefer a progressive feudal utopia instead is hardly the point.

  • Tony||

    And people seem confused by Scalia's near-perfect circular reasoning. He said that militias were thought of as people bringing whatever gun they might possess at home with them to the militia. Since people today do not commonly have machine guns or "assault rifles," that's not what people would commonly bring to a hypothetical modern militia. Since they already have handguns commonly, you can't ban them.

    So I suppose the NRA could have gotten its 2nd amendment right to rocket launchers if only it had convinced more people to buy them?

  • Brett Bellmore||

    The only reason that civilian arms diverged from military arms was that the Supreme court spend 68 years after Miller refusing to take 2nd amendment cases, during which one gun control law after another accumulated, that should have been struck down according to Miller's reasoning. And those laws that should have been struck down warped the civilian gun market, which had always before then tracked the military gun market.

    Remember, the Miller test was that private ownership of guns was protected if the guns were suitable for military use. The only reason Miller lost the case was that he was dead by the time it was heard, and nobody was representing him before the Court to present the evidence that sawn off shotguns were used in trench warfare, so the Court would not take cognizance of it.

    The lower courts then stood that decision on it's head as representing a wholesale endorsement of gun control, and the Supreme court relentlessly refused to take any case challenging this.

    It took that 68 years to transform standard military arms from something that you'd buy at any gun shop, and go hunting with the same gun you'd bear in the army, to a separate category of arms people could not own without jumping through flaming hoops.

    IOW, it would be no different from the Court concluding that Jim Crow was consistent with the 14th amendment because they'd spent several generations refusing to enforce the 14th amendment.

  • Tony||

    Yes, that's the silly reasoning, and that's why he should have just said "Militias like that are obsolete, and thus the 2nd amendment is obsolete, and governments can get on with regulating for public safety like any government does."

  • Brett Bellmore||

    The thing is, that's not legal reasoning. Constitutional provisions don't expire just because somebody decides they're obsolete. They remain in force until amended away.

    The Court is no more entitled to decide the right to keep and bear arms is "obsolete", than they are to decide freedom of speech, or the right to trial by jury is.

  • Stephen Lathrop||

    Brett, my view differs from yours. I suggest that Heller overturned the original meaning of the 2A, without an amendment. I'm at a loss to understand why another SCOTUS decision can't put that meaning back where it was without an amendment.

    More generally, it has become tiresome to hear repeatedly from right wingers—who know as everyone does that population shifts and per-state ratification have rendered the amendment process all-but-impossible—that whatever the political right dislikes politically requires an amendment. Doing that amounts to a demand that the courts step in to freeze politics.

  • Brett Bellmore||

    Stephen, Heller only overturned the original meaning of the 2nd amendment, in the sense that the majority were unwilling to uphold it entirely. We have ample sources from the time of the amendment's drafting and ratification as to what that original meaning was: A right of ordinary citizens to be armed in the same fashion as soldiers, to "every terrible implement of the soldier."

    Remember, Stephen, Bellesiles' book was a fraud. There's a reason why gun controllers so often engage in fraud when addressing the 2nd amendment's history: It's both clear and unfavorable to them.

    And spare me that nonsense about the amendment process being effectively impossible. It's certainly impossible for amendments that lack popular support, like a repeal of the 2nd amendment. But the real obstacle to amendment at this point isn't structural, it's that the membership of Congress has become fundamentally unrepresentative of the public, such that they don't WANT any amendment that would be popular enough to ratify. And view formal amendment as basically pointless, because the judiciary rarely thwarts their power grabs.

    Let a constitutional convention happen, and you'll see that amending the Constitution is feasible enough. But they probably won't be amendments YOU like.

  • Emotional Opposition Animal||

    I suggest that Heller overturned the original meaning of the 2A, without an amendment.

    What is your justification for that suggestion?

  • Sebastian Cremmington||

    I suggest you read Stevens' Heller dissent which is a perfect strict constructionist interpretation of the 2A.

  • Red Rocks White Privilege||

    I suggest you come to grips with the fact that you're not getting your progressive feudal utopia.

  • Brett Bellmore||

    Or would have been, anyway, on Counter-Earth, where the relevant history was completely different from how things went down on THIS planet.

  • Sebastian Cremmington||

    Once again—why was a guy with a 206 IQ necessary to "thread the needle" for Scalia?? That is why geniuses like Volokh and Kerr should be designing rockets instead of publishing law review articles...if their huge brains are necessary to interpret a law then something is very wrong with the laws. Draft simple laws that are easy to interpret!!

  • Red Rocks White Privilege||

    Once again—why was a guy with a 206 IQ necessary to "thread the needle" for Scalia??

    That you think "a guy with a 206 IQ" had to "thread the needle" instead of "cite common laws and practices of the time" says all we need to know about the intellectual bankruptcy of the gun control crowd.

  • Violent Sociopath||

    I suggest that Heller overturned the original meaning of the 2A, without an amendment.

    I suggest that you're a crank who doesn't know history and can't read.

  • Naaman Brown||

    From the Cruikshank decision of 1873 to the Guest and Price decisions of 1966, the Court actually did that: held that the rights supposedly defended by the 14th amendment were only protected from federal violation, and the states and private parties could do as they willed.

  • Naaman Brown||

    "... Cruikshank decision of 1876 .... "

    Cruikshank et al perpetrated the 1873 Colfax courthouse massacre. The case was decided 1876.

  • Cyto||

    Which is perfectly reasonable in a pre-14th amendment world.

  • Red Rocks White Privilege||

    It says something that the case for gun control was based on a decision that overturned the convictions of a white mob that killed armed black men.

  • Red Rocks White Privilege||

    Since people today do not commonly have machine guns or "assault rifles," that's not what people would commonly bring to a hypothetical modern militia.

    I suppose we could take a poll and see what the majority of gun owners actually possess and go with that. Since they tend to have at least 2-3 or more in their personal arsenal, that's going to get dicey for you gun-grabbers.

  • Naaman Brown||

    What about things the military calls assault vehicles, like 4 wheel drives, ATVs, dune buggies, rubber boats with outboard motors?

    The Toyota pickup truck, especial the ones with diesel engines, are the choice of insurgents and counterinsurgents worldwide.

  • ranrod||

    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."

  • QuintessentialPhorto||

    Yet another lower federal court ignores precedent.

    "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. . . .

    "With obvious purpose to assure the continuation and render possible the effectiveness of these [militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." - U.S. v. Miller (1939)

    Thus said the SCOTUS regarding the types of arms definitively within the ambit of Second Amendment protection. Militia weapons. SPECIFICALLY.

    In other words, this question has already been addressed, albeit indirectly, by the Supreme Court of the United States, and stands as precedent that removes any so-called "assault weapons" (sic) ban from consideration.

    Stare decisis, anyone.....?

  • Joe_JP||

    The judge relied on precedent -- Heller.

    Now, I'm sympathetic with the result here, but somewhat wary about this somewhat simplistic syllogism approach. Find some of his Scalia friendly interpretative reasoning a bit dubious too. I'm not quite the Reagan judge type.

    Maybe, another lower court will decide differently & SCOTUS will finally revisit the 2A.

  • Brett Bellmore||

    Even Heller doesn't support the judge, because Heller does at least protect widely owned guns, and both "assault weapons" and normal capacity magazines are very widely owned.

  • Sebastian Cremmington||

    The only reason automatic guns are not "widely owned" is because they are heavily regulated.

  • Get To Da Chippah||

    That may well be true, which suggests that regulating a type of gun that would be commonly owned were it not for said regulation is itself a violation of the Second Amendment.

  • Emotional Opposition Animal||

    That's why blue states immediately try to outlaw any innovation in firearms to prevent them from becoming commonly-owned. Such as revolver shotguns and shotguns with detachable magazines.

  • Violent Sociopath||

    Indeed. Which calls into question the constitutionality of the NFA and the Hughes Amendment.

  • QuintessentialPhorto||

    Heller didn't reverse Miller, AAMOF it cited Miller in setting down the criteria for arms that are definitively within the ambit of Second Amendment protection.

  • Brett Bellmore||

    The dictum certainly reversed Miller, in suggesting that military arms wouldn't be protected, when Miller came close to saying that only military arms were protected.

  • Deplorable Victor||

    FUCK him. Bring on the civil war. We'll win.

  • Brett Bellmore||

    Nobody wins a civil war, if you're lucky you just lose it less than the other side.

    Seriously, if we have a civil war, the left will lose, badly, but the US will be a shadow of its former self for generations.

  • Tony||

    The people who control all the cities won't lose, same as last time.

    And people shouldn't be threatening mass violence to solve political differences at all, for any reason, I'm sure you agree.

  • Emotional Opposition Animal||

    You leftists don't actually control the cities, unless you want to take credit for Baltimore and Chicago's murder capital status.

    Even if you did, the Redcoats controlled all the cities in the American Revolution and that didn't work out too well.

  • Tony||

    You sound like a deranged child.

  • Red Rocks White Privilege||

    The people who control all the cities won't lose, same as last time

    Please. A few attacks on supply trucks along the roads, and the welfare class will be carving you up inside a month.

  • Brett Bellmore||

    Look, being based in the cities is exactly why you WOULD lose. There's not a Democrat controlled city in the country that isn't a week away from food riots. Cut the electricity and they'd be uninhabitable faster than that. What are you going to do when nothing comes out of the tap, your refrigerator stops humming, and trucks stop showing up to restock your grocery stores? March out into the countryside on empty stomachs, and conquer us?

    City based civilizations used to understand that, stockpile food and water in the cities so they could hold out in case of a siege. Modern society doesn't have the sense to do that. The truth is, the modern left has herded itself into giant death traps.

    And, you know, it really hilarious to hear gun controllers complain about MY side threatening violence. Passing laws IS threatening violence: Nobody would pay the slightest attention to laws if they weren't backed up by a credible threat of violence.

    Every gun control law is a threat to kill people who won't comply with it.

  • Emotional Opposition Animal||

    More like the US will be a colony of China and Russia.

    Sometimes I feel like just letting California, Oregon, and Washington secede and learn the faults of socialism the hard way, but reality is it wouldn't work. Once they got desperate, China would support them as satellite states in return for basing PRC troops there, and then we'd be in a world of pain.

  • Tony||

    What kind of moron looks at California vs. Mississippi and thinks California has chosen the wrong economic and political path?

  • loveconstitution1789||

    Taxifornia has massive underfunded liabilities that are a ticking time bomb.

  • Violent Sociopath||

    The millions of people who've left the state since the 1990s.

  • ||

    I'm commenting on Hit & Run in order to buy sex.

    Anybody got a problem with that? I'm asking you, FOSTA/SESTA!

  • peter007||

    A lot of nit picking here on semantics. What is clear is... The right of the people to keep and bear arms shall not be infringed. The words were not..."All arms shall be regulated and controlled by states and federal law."
    If the founding fathers wanted the Congress to make laws regulating arms, then they would have put that power into the constitution Art. 1 Section 8.
    It should be known that many people in 1785 didn't think we needed a Bill of Rights because the Constitution was a Limiting document that limited the powers of the Federal Government and there were no provisions in the constitution that would expand powers beyond those designated specifically. The Bill of Rights is almost an EXCLAMATION POINT. !!!
    We are also forgetting that in most places in the US, the right to BEAR arms is being violated. Bear arms means to carry arms.

  • Joe Strummer||

    At the end of the day, countless Millions of Americans are sick and tired of guns. Sick and tired of murders and mass murders of innocent adults, teenagers, and children with military rifles designed for one thing only: killing human beings. Sick and tired of guns being easy for just about anyone to own, trade, or sell. Sick and tired of gun owners spouting about their ill-perceived rights based on an unclear and antiquated 200 year old amendment to our constitution that doesn't relate to today's society, crime, or mental health issues. Sick and tired of schools not being safe for children because of guns and the gun culture that has infected this country like a plague. Sick and tired of America having the highest crime and mass shooting rates of any country on the planet. Sick and tired of the Millions of guns being manufactured in this country every year. Sick and tired of the puppet organization NRA, who represent rich gun companies and CEO's who pay them to pay off politicians in order to advance their agendas and blind the public to their businesses, operations, and sales. Sick and tired of the ridiculous slippery slope argument and fear mongering of "take one gun they'll take them all". Sick and tired of gun nuts and collectors that get their jollies out of shooting and bragging about their guns. Sick and tired that these gun nuts can't find something better to do with their free time. SICK AND TIRED OF GUNS.

  • Red Rocks White Privilege||

    You're apparently not tired of the 2.5 times greater number of people killed by alcohol-related causes, though. Don't want a law to get in the way of your buzz?

  • Tony||

    Okay let's make gun regulations as strict as we make drunk driving regulations.

  • Red Rocks White Privilege||

    As soon as we have background checks to purchase alcohol, you might have a strategy there.

  • Get To Da Chippah||

    How about vice versa?

    'universal' background check before you can own a car. No cars allowed that can exceed 20mph. Nobody needs to go that fast. No private sales of cars at all. A one week waiting period between walking into a dealership to buy a car that's sitting on the lot and actually taking the car home. If you're a convicted felon, you can never buy a car again, let alone drive one. Certain scary cars are banned no matter what; we'll let you know which kinds as we discover them, and once they're banned you'd better turn yours in or else.

  • ||

    "Millions of Americans are sick and tired of guns"

    Oh fuck off you pompous, faux-woke, sanctimonious, arrogant shrill pansy.

    Millions of Americans living in 'woke' urban centres who don't give a shit about other people's rights. The same type of assholes who call for public housing and then scream NIMBY.

    Sick and tired of assholes who have no respect for other people's rights.

  • Ken Shultz||

    So we should let you flush our right down the toilet because you're sick of them?

    Fuck you!

  • gsteele531||

    We're sick and tired of wingnuts like you who think a fundamental right to self-defense and life is a bad reason not to deprive others of a Constitutional right. If you don't like the Constitution, go live somewhere without it!

    Sick and tired of LIARS like you spouting crap like "America having the highest crime and mass shooting rates of any country on the planet" when we are 94th on the UN's list of homicide rates (UNODC), well below countries with far stricter gun laws. Do facts matter to weasel liars? Sick and tired of schools being unsafe because pansies won't support hardening entrances - it would undermine your obsession with gun controls. Sick and tired of hearing NRA is a "Gun Lobby puppet" when the NRA was founded at military request to teach marksmanship to citizens for national defense. Citizens who don't crap in their pants when they see a gun like you do! Ask the military if they will trade in their M-16s for AR-15s, fool, if you don't see the difference between recreational rifles and military weapons.

    What we do with our free time is none of your business - just like your obsessive mental masturbation over gun control is none of ours. Guns are for two things, not one - offense AND defense - the latter of which they are used for successfully far more often than the former. If you knew anything other than the lefty talking points from your oblivious echo chamber, you'd be embarrassed at having written the above utter nonsense.

  • Ronof2||

    I'm wondering if the deciding judge has located a single instance of a sovereign nation-state military anywhere on the planet that has specified that its primary issued/used rifle must be semi-automatic with no full automatic selector or capability. Is there a military firearms expert on reason.com who knows of any? If this or any other semi-automatic rifle is not in regular use as a military weapon, how does the judge's "military weapon" reasoning make sense?

  • ||

    Alright. That's enough.

    Fuck you. Come get them.

    America has to draw the line because if the 2A falls, the 1A is next.

  • ||

    And make sure jerkoffs like Joe Strummer don't know where the guns are.

  • Ken Shultz||

    Yeah, anybody who's sick of guns and thinks that right only exists because of our interpretation of the Constitution, I hope they never have to see what it would be like if they ignored the Second Amendment and violate our gun rights.

    If they're sick of guns now, just wait 'til they see how sick of guns they'd be then.

    P.S. There's something to be said here about the perception vs. reality, too. Gun crimes are still historically low. Because the media fixates on something more often they used to doesn't mean it's more of a problem than it used to be.

  • Devastator||

    The judge is just flat out wrong. M16 is an automatic weapon, or easily modified to be one. An AR15 is not. Sure it can be modified to be an automatic, but so can a semi-automatic pistol.

  • IceTrey||

    Fuck the 2A. Gun ownership is part of our natural right to liberty.

  • 2aguy||

    Why doesn't anyone ever quote this part of Justice Scalia's opinion:

    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, and the Fourth Amendment applies to modern forms of search, 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.

  • 2aguy||

    And as to the Dangerous and Unusual portion....from Miller......Justice Alito Addresses that in Caetano v. Massachusetts as he confirms that Heller protects these weapons....

    .

    As to "dangerous," the court below held that a weapon is "dangerous per se" if it is " 'designed and constructed to produce death or great bodily harm' and 'for the purpose of bodily assault or defense.'" 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)).

    That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.

    Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court's test sweeps far too broadly.

    Heller defined the "Arms" covered by the Second Amendment to include "'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.'" 554 U. S., at 581.

    Under the decision below, however, virtually every covered arm would qualify as "dangerous." Were there any doubt on this point, one need only look at the court's first example of "dangerous per se" weapons: "firearms." 470 Mass., at 779, 26 N. E. 3d, at 692.

  • TxJack 112||

    This judges ruling is the exact problem with the misinformation pushed by anti gun groups in defining "assault rifles". First, if the rifle is not capable of automatic fire, it cannot be an assault rifle because it is not a military rifle. How it looks is irrelevant but to these groups and judges like this idiot, that is not important. The definition of an "assault rifle" is as fluid as the term "reasonable gun legislation" because neither is ever actually defined by those using the terms. As pointed out in another article, under the common characteristics of what anti gun groups call
    "assault rifles" any 22LR is an assault rifle because most have tube magazines holding 14 rds. We need to fight for terms limits for Federal judges as well as Congress if we ever wish to reverse our march toward the all-powerful centralized government the progressive left seeks to create.

  • gsteele531||

    So it does not require a functioning brain to be a judge. The Second Amendment's purpose was to establish parity between citizen and military arms to make it possible for citizens to successfully overthrow oppressive government by force, if peaceful petition for redress proved inadequate. Its non-infringement stricture SHOULD extend to "guns most useful in military service."

    But this mockery of a justice inverts that, such that even guns that LOOK like those most useful in military service do NOT benefit from the extension. Is Young utterly untrainable? Can he not be educated to differentiate between civilian AR-15s and M-16s? Wouldn't simply asking the military: "Would you take an AR-15 into battle?" with the obvious response being: "No, they are only for civilian use - no automatic fire" clearly make the point once and for all? And if not, shouldn't we force our military to use AR-15s, if they are "guns most useful in military service?"

    If the issue is that LEOs should not be "outgunned" by civilians, does he then say, on the other hand, civilians SHOULD be outgunned by criminals? On what grounds does he preempt a founding principle in the Declaration of Independence - the Right to Life - to secure which, governments are instituted? This MUST be overturned - and frankly, his insipid misreading and misinterpretation of Scalia should be cause to remove him from the bench as incompetent. Ban judges who assault the Constitution! Ban Assault Judges!

  • Robert Crim||

    Judge Young's analysis of the Amendment is goofy, based upon the plain text of the Amendment.

    First, the right to own a gun really is a right to DO SOMETHING with a gun. It is absurd to claim a Second Amendment right to own a gun to rob a bank, for example.

    The Second Amendment CLEARLY concerns "the right of the people to keep and bear arms" appropriate to service in the militia. Judge Young's argument that militia rifles protected by a militia amendment can be banned because the militia is a "military" occupation and the rifles are "military" arms makes absolutely no sense.

    Furthermore, the interpretation flies in the face of the Constitution's plain language. Amendments AMEND something, in this case, Art. I, sec. 8, which grants Congress BOTH the power to raise its own troops AND to "arm, equip, and discipline the militia."

    The objection raised by opponents of the Constitution in 1787-89 was that a corrupt Congress could use its military powers corruptly, by giving its own forces modern weapons while limiting the militias to slings and arrows. The Second Amendment specifically makes this illegal....

  • Robert Crim||

    More importantly, as Hamilton argued in The Federalist #28, the very purpose of placing military power in the hands of private citizens was to make them the ultimate fulcrum of constitutional interpretation, should the federal and a state government get into a spat. And, it is this foundation upon which Hamilton later erected the power of judicial review -- the very power Judge Young now invokes to eviscerate what underlies his power.

    By ruling as he has, Judge Young has ruled that he doesn't have the power to rule for the very defendants who seek his summary rule.

    And that also is idiotic.

  • adamadman||

    How about "well regulated"? Is what we have already "well regulated"? In what way are gun-control advocates' calls for a ban on certain more effectively violent firearms NOT "well regulated"? Does it only mean "trained," or does it imply a subset of the population who are organized and ready to fight? In what way is Fred Jones in Indiana with three AK-15s and a host of other guns "well regulated"?

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