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10 Years After Heller, Does 'Normalizing' the Second Amendment Mean Ignoring It?

The Supreme Court has been almost completely silent on the subject of gun rights, leaving important issues unresolved.

American Enterprise InstituteAmerican Enterprise InstituteNext month it will be 10 years since District of Columbia v. Heller, the landmark case in which the Supreme Court acknowledged that the Second Amendment protects an individual right to armed self-defense. In that time the Court has done almost nothing to clarify the contours of that right.

The two exceptions are McDonald v. Chicago, the 2010 case in which the Court said the Second Amendment constrains states and cities as well as the federal government, and Caetano v. Massachusetts, a 2016 case involving a ban on stun guns in which the Court reiterated that weapons covered by the Second Amendment are not limited to those that are suitable for warfare or those that were in common use when the amendment was enacted. Critics, including Justices Clarence Thomas and Neil Gorsuch, frequently complain that the Court is neglecting the Second Amendment, letting judges who are hostile to gun rights flout Heller by upholding unconstitutional restrictions on firearms.

Duke law professor Joseph Blocher and Eric Ruben, a fellow at the Brennan Center for Justice, challenge that account, arguing that lower courts for the most part are simply applying the Second Amendment exceptions drawn by Heller. While there is some truth to that claim, it underestimates both the extent to which judges have ignored the implications of Heller and the extent to which that decision left important issues unresolved.

Blocher and Ruben analyzed every Second Amendment case decided by state and federal courts between June 26, 2008, when Heller was published, and February 1, 2016. Their broadest conclusion, consistent with what earlier studies have found, is that Second Amendment claims generally fail. They were successful in just 108 of the 1,153 cases in which they were raised, or 9 percent of the time. One reason for the high failure rate, Blocher and Ruben say, is that three-quarters of the claims were raised in criminal cases, where they were typically tacked on by "defendants facing serious charges," who "have every incentive to make whatever arguments they can get away with."

More generally, Blocher and Ruben argue, Second Amendment claims usually fail because they are usually weak. "The language of Heller makes it clear that some kinds of claims are flawed from the outset," they write. "Most fail precisely because of limitations that Heller itself places on the right to bear arms."

Justice Antonin Scalia, who wrote the majority opinion in Heller, seemed keen to assure readers that the decision would not sweep away widely accepted gun control laws that had been on the books for decades (citations omitted):

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

That passage, Blocher and Ruben found, was quoted, "at least in part," by 60 percent of the judicial decisions they examined. But it's quite a leap to conclude that all those decisions must have been consistent with Heller, let alone consistent with the Second Amendment.

"This language from Heller gives constitutional blessing to a potentially wide range of regulation," Blocher and Ruben write in Vox. "So it should be unsurprising that the vast majority of the cases citing it go on to reject the Second Amendment claim and uphold the challenged law. Even when courts do not explicitly cite this particular passage in upholding gun laws, they often rely on other precedents that do so. That explains why the percentage of cases citing it has been steadily declining, as courts start to cite their own prior decisions that incorporate Heller's list of exceptions."

Notably, Heller's list of exceptions does not include bans on so-called assault weapons. To the contrary, Heller says the Second Amendment encompasses weapons "in common use" for "lawful purposes," a description that plainly applies to the guns targeted by such laws, since Americans own more than 16 million of them and almost never use them to commit crimes. State and federal judges nevertheless have upheld "assault weapon" bans since Heller, arbitrarily deeming these guns to be outside the scope of the Second Amendment.

Scalia did note that "prohibitions on carrying concealed weapons" were upheld by most of the 19th-century courts that considered them. But since those laws allowed people to carry guns openly, Scalia's observation hardly qualifies as an endorsement of the highly implausible proposition that the right to keep and bear arms does not extend beyond the door of a gun owner's home. As Thomas observed when the Supreme Court declined to hear an appeal of a 9th Circuit decision upholding California's restrictive carry permit law, it is "extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen."

Although there are circuit splits on both of these issues, the Court has refused to resolve them. Nor has it clarified what level of scrutiny is appropriate in Second Amendment cases, another area where the courts are all over the map. As Blocher and Ruben note, "the justices have declined dozens of opportunities to expound on the right to keep and bear arms," a pattern that led Thomas to accuse his colleagues of treating the Second Amendment as a "constitutional orphan."

Where gun rights advocates see uncertainty, inconsistency, and disrespect for a constitutional guarantee, Blocher and Ruben see evidence that "courts are normalizing the post-Heller Second Amendment and treating it like other constitutional rights." By that they mean that the right to keep and bear arms is "subject to exceptions, some of which are derived from history, and to regulations that further certain important government interests."

These exceptions, which Blocher and Ruben say epitomize "'normal' constitutional law," are threatening to swallow the rule. The other part of normal constitutional law, the part that protects fundamental rights and overturns restrictions inconsistent with them, could use a boost from a Supreme Court that has been silent on this subject for too long.

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  • Steevie||

    Where the hell is Hihn to get this thing started. I really need Heller to be properly cited.

  • JesseAz||

    Don't you mean "some passages taken out of context and the other 97% ignored?"

  • Steevie||

    Potatoe/potaaato

  • Longtobefree||

    Potato gun?
    Legal or not?

  • Unicorn Abattoir||

    Black powder potato guns are because they could have been used when 2A was passed. Compressed air potato guns came later and thus not in common use under Heller.

    /Do I really need to say sarc?

  • LarryA||

    [sarc] acknowledged. However:

    Air guns represent the oldest pneumatic technology. The oldest existing mechanical air gun, a bellows air gun dating back to about 1580, is in the Livrustkammaren Museum in Stockholm. This is the time most historians recognize as the beginning of the modern air gun.

    Throughout 17th to 19th century, air guns in calibers .30–.51, were used to hunt big-game deer and wild boar. They were also used in warfare, the most recognized example being the Girandoni air rifle.

    France, Austria and other nations had special sniper detachments using air rifles. The Austrian 1770 model was named Windbüchse (literally "wind rifle" in German). The gun was developed in 1768 or 1769 by the Tyrolean watchmaker, mechanic and gunsmith Bartholomäus Girandoni (1744–1799) and is sometimes referred to as the Girandoni air rifle.

    Note that the Girandoni typically had a magazine holding 20 or more rounds.
    https://en.wikipedia.org/wiki/Air_gun#History

  • Sufi||

    Why does every gun nut ALWAYS forget to mention the second Amendment is framed upon the need of a "well regulated militia"?

  • Brett Bellmore||

    No, it proclaims the need for a well regulated militia.

    That a well regulated militia is necessary to the security of a free state is a proposition which is enacted into the Constitution. It may or may not be factually correct, but any legal reasoning is obligated to take it as true, because the highest law of the land proclaims it true. It's a legally mandated premise of reasoning about the Constitution.

    Now, why does every anti-gun nut always forget to mention that the right is secured to the people, not the militia?

  • Brett Bellmore||

    By the way, do you even have a clue what "well regulated" meant in the founding era?

  • Duelles||

    . . . , comma, it's the right of the people not the right of the militia to be armed. Doh!

  • Brett Bellmore||

    And it's perfectly logical: The right of the PEOPLE to be armed, and train with those arms, is guaranteed because it contributes to a well regulated militia, by assuring a large pool of people who are already armed and familiar with those arms, from which a militia can be raised in emergencies, even if the militia system had been neglected.

    It's like protecting the right of people to own firefighting equipment, so that you can whip together a volunteer fire fighting team in an emergency.

    The key point to remember, is that while a well regulated militia might be necessary to the security of a free state, those running said state might not always want it to be free. They might discontinue the militia system exactly because it WOULD secure a free state!

    So arming just the militia doesn't protect the free state from those running it.

    Constitutional rights are always premised on the idea that those running the government might want to do the wrong thing. You can't understand them if you don't start from that basis.

  • gimmedatribeye||

    haha you're beat

  • JesseAz||

    "The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.[1]" Link

    You're welcome.

  • The Metonymy||

    >>Why does every gun nut ALWAYS forget to mention the second Amendment is framed upon the need of a "well regulated militia"?

  • The Metonymy||

    Bacause you'd go apeshit if we gun nuts ran with the idea that defense spending cuts are unconstitutional.

  • BrianB||

    Mostly because that's what the Second Amendment says.

  • BigChiefWahoo||

    You Anti-gun Nuts like to TALK about that "well regulated militia" but how many of you actually support comprehensive Swiss-style militia training, either as an element of national defense, or as a counter-balance to federal power? It's just a mouth full of air to you anti-gunners, a semi-plausible justification for abridging individual liberty.

  • The Metonymy||

    His Obamaphone data cap renews at the beginning of the month.

  • HGW xx/7||

    The Court in this case reminds me of the whiny high schooler who barely makes it through his math classes, only to arrive at State U and declare, "What?!? I have to take math AGAIN?!"

    Like all rights, they need to be constantly protected with equal vigilance. Although Gorsuch appears to be doing his best, the rest of the court appears to hold 2A a lower level of importance. That's disturbing since that right helps ensure the others are kept in the hands of the People, not merely acknowledged at the whims of the State.

  • BigT||

    Just waiting for rbg to kick it so they can get some work done.

  • Billy Bones||

    "Like most rights, the right secured by the Second Amendment is not unlimited."

    I beg to differ.

    "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."--US Constitution

    "in·fringe

    act so as to limit or undermine (something); encroach on.
    "his legal rights were being infringed"
    synonyms: restrict, limit, curb, check, encroach on;"--Oxford Dictionary.

    "Shall not be infringed" sounds an awful lot like "Shall not be limited"

  • Bubba Jones||

    Yes but if the goal is to protect state militias then it is the state that has standing to challenge the NFA, not the individual.

  • ukinkle||

    Don't see "protect" anywhere in there.

  • Longtobefree||

    Can't have a state militia without armed citizens, can you?

    A militia is a temporary group of individual volunteers, providing their own weapons, willing to submit to state control (federal or state or 'other' government) for an agreed to time and/or place. They elect their own officers and are not required to respond to the "call out the militia' of any government.

    This is why the national guard (US Army) is not actually a state militia; it is a standing military unit subject to all lawful (and at least one unlawful https://en.wikipedia.org/wiki/Little_Rock_Nine) orders of the state of federal government.

  • Tionico||

    militia, defined, is simply THE PEOPLE of a local area, armed with their own weapons, and having spent time together drilin,g training, practicing, so as to become "well regulated", that is, working as a proper militia will work. So no, it is NOT up to the STATE, but to THE PEOPLE. Ever has been, always will be wheter the grubermint think that's right or not.

  • iowantwo||

    The 1st doesnt use the word "State" why do you? It's just militia. From your stand point, it is either lack of understanding, or you understand just fine, and insert the word to buttress your flawed logic.

  • Scarecrow Repair & Chippering||

    Some fucking retard of a legal beagle once argued that you must parse the language correctly. To wit, "Congress shall pass no law abridging the freedom of speech" does not mean there is any chance that libel and slander could be abridgements, because the restriction applies only to thesingleconcept "freedomofspeeach", and that concept was widely understood at the time to mean speech except for libel and slander and threats and all those other good exceptions.

    No doub it's the same thing here. Therighttokeepandbeararms was well understoof in 1789 to mean (the right to keep and bear arms) - (certain common exceptions).

    Such is the quality if legal reasoning, and why all questions of constitutionality should always be decided by ordinary people, not lawyers; if a jury of 12 random people does not unanimously agree that a law is constitutional, end of story, because any split, any appeal, is merely confirmation that it is unclear.

    5-4 Supreme Court decisions disgust me.

  • James Smith||

    Libel and slander are both civil issues. Not criminal. I take that back, there are some state criminal statutes, but most, if not all, are unenforced, and likely unconstitutional on their face, so you are not limited to not libel or slander. It's just that you can get sued by the injured party.

  • perlchpr||

    This is my own position on the second amendment.

  • Bubba Jones||

    Assault weapon bans are deemed constitutional to the extent they are cosmetic and ineffective.

  • Fist of Etiquette||

    You do realize that if the Supreme Court every took it on themselves to clarify Heller that there would be no Heller decision left standing.

  • Brett Bellmore||

    That's far from certain, or else they'd do just that. It only takes four votes to take a case, after all, and five to win. If your side knows you're going to win, you're always able to accept a case to win in.

    Rather, at this point, the anti-gunners are not certain that Heller would be overthrown, and the pro-gunners are not certain that Heller would be upheld, because somebody's in the middle, probably Kennedy.

    So neither faction is willing to risk taking a case.

    My bet is that if either Kennedy or Ginsberg is replaced by Trump, the Court will resume taking 2nd amendment cases.

  • BigT||

    Trump will appoint himself to the SC?

    Brilliant!!

  • Brett Bellmore||

    Only if he wants metaphorical exploding heads to be replaced by real ones.

  • ||

    Not if they did their job

  • josh||

    Another school shooting today, this time near me. If David Hogg comes to my state, then the USSC has some explaining to do about why I still have to put up with this crap.

  • Ken Shultz||

    "For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

    ----Scalia

    Two points:

    1) Interesting how the perception of what is dangerous changes in time.

    In the 19th-century, carrying concealed was considered dangerous. Walking into a business while open carrying might not have been considered a scary thing, but they wanted to see who was armed and who wasn't. When they were prohibiting concealed carry, they were probably talking about a Derringer with a barrel only an inch or two long--like the one John Wilkes Booth used to assassinate Lincoln. In a society where you could open carry, you might only need a Derringer for nefarious purposes--since they were inferior in every way to other firearms except the ability to conceal them.

    The Derringer may have been the AR-15 of the 19th-century--so scary!

    Nowadays, people are afraid of open carry. A hundred years from now, it'll be something else.

  • loveconstitution1789||

    Concealing a musket was difficult and dangerous since gunpowder residue could ignite and set off a shot into ones pants.

    Also until 1865, white elites ran the USA. The states that made concealed guns illegal tended to do so to prevent blacks from having firearms in any way they could. The gun control back then was just as unconstitutional as it is now. Its still done for racial reasons. Can't have those pesky blacks carrying concealed pistols walking up to Democrat politicians. No siree.

  • BigChiefWahoo||

    At common Law, open carry was considered unlawful as a form of "brandishing" weapons for purposes of intimidatiom. Concealed weapons were not being "brandished" and were therefore OK. The first concealed weapon statues enacted in the states were justified as supporting the institution of dueling. See Don Kates.

  • Ken Shultz||

    2) The bit about how they weren't striking down other laws was probably a prerequisite for affirming the right to own a firearm. It'll be like that if we ever get sane about the commerce clause, too. We will never be one decision away from pulling the rug out from under three-fourths of the regulatory state. We were lucky the camel's nose got into the tent. They probably wouldn't have let it in if it could have been interpreted to preempt gun control everywhere.

  • AustinRoth||

    Just rename guns "LGBT's". The courts will instantly find all kinds of protections for them.

  • Dillinger||

    marry my guns?

  • Ken Shultz||

    I think what you need to do is declare that your gender is a gun.

  • Dillinger||

    even better.

  • Rat on a train||

    Already done. This is my rifle...

  • Longtobefree||

    Legal Gun Bearing Tribe?

  • Dillinger||

    >> In that time the Court has done almost nothing to clarify the contours of that right.

    consider the source?

  • Longtorso, Johnny||

    I only have this Glock in case I need to perform an abortion.

  • Juice||

    That's about all it's good for.

  • Telcontar the Wanderer||

    DEVGRU, SAS, and Sayeret concur.

  • Eidde||

    Many judges have these flattering self-images of themselves as courageously standing at the bridge like Horatius, fighting back the barbarian hordes who want to destroy the Constitution.

    Well, here's a time for them to live up to their own self-image.

    This anti-2nd Amendment campaign is ready-made for brave judges to step in and block unconstitutional firearms restrictions.

    So the question is whether the judges will "follow the election returns" or follow the Constitution.

    Its time for these judges to justify their life tenure, their salaries and their pensions by standing in the breach and defending the 2nd Amendment against the barbarians.

  • LarryA||

    "follow the election returns"

    Actually, the election returns haven't been anti-gun. Otherwise we wouldn't have 41 shall-issue states and 14 no-license states. (Some being double-counted.)

    Yes, we now have half-again more states, 14, that don't require a license to carry than we have states, 8, that limit carry with discretionary laws. Unfortunately, most of the Second Amendment cases arise in the restrictive states, like California, and that's where the judges who decide them live.

  • Quo Usque Tandem||

    If I had my way, a landmark case will be granted cert after Kennedy retires and Ginsberg departs, and Trump [hopes and prayers here] appoints another two like Gorsuch. THEN let's have the USSC weigh in.

  • Telcontar the Wanderer||

    So, OK City and Noblesville, Indiana.

    Am I correct that we have had not one, but two mass public shootings stopped by civilian bystanders, two armed and one unarmed, in a single day?

  • Longtobefree||

    That may be the single day record, but tens of thousand of crimes are stopped each day by the use, display, or threat of firearm use. It is just not reported because it does not fit the narrative.
    For instance, a lone woman (in a right to carry state), leaving a business at night approaches her isolated vehicle. A young man is approaching on a direct line, furtively looking about. There is no destination in the area that requires him to be on an approach path the the woman. The woman holds up her left hand, and places her right hand on her right hip, and says "stop". The young man immediately stops, and goes back they way he came.
    Would that ever get reported as a firearm preventing a crime?

  • Telcontar the Wanderer||

    If we were living in a logical society, that is the sort of DGU that would be the primary topic of discussion, yes. But then, if we were living in a logical society, we would be having a "national discussion" about literally every kind of violent gun use except mass shootings, given that they are the least common and most difficult to mitigate of all the various ways in which guns can be used to harm.

    Within the terms of the discussion we have, then, the Indiana and OKC events are more useful to the gun rights movement than any number of anecdotes about prevented rapes or aggravated assaults. If only because two low- or no-lethality events provide further evidence that guns are not, in fact, actually that different from vehicle rammings (which similarly consist of a broad sea of 0-3 casualty incidents punctuated by a tiny number of 4+ casualty events). The Temperance movement benefits when people wrongly perceive firearms to be significantly more lethal per-incident than alternative methods. These incidents prove that that perception is false.

  • bc15||

    I thought that we already had a framework for deciding which restrictions on fundamental rights could pass constitutional muster, namely the so-called strict scrutiny standard. Under that standard, gun restrictions would be constitutional only if they were the most narrowly tailored means available to achieve a compelling state interest. Clearly, Second Amendment rights are not "merely" economic rights --- the rights at stake are not limited to freedom of contract. Thus, Second Amendment rights are fundamental rights. So, unless the Supreme Court explicitly establishes a separate test for gun laws' constitutionality, why wouldn't lower courts apply the strict scrutiny standard by default? That would seem to be the approach most consistent with "normal constitutional law".

    Broad restrictions limiting the gun rights of law-abiding citizens whom we have no reason to believe will engage in violence would not seem to be particularly narrowly tailored.

  • SimonP||

    Maybe you should wait until you get to the next chapter of your casebook before you start spouting off on levels of scrutiny, kid.

  • ||

    I think the casebook should be thrown out if it doesn't agree with what he posted.

  • SimonP||

    We ought to throw out a casebook that describes the actual law, instead of some ends-oriented speculative version spouted by some amateur with a half-baked understanding of constitutional law?

    Sure, buddy.

  • Longtobefree||

    Let's see: " . . . shall not be infringed."
    I can certainly see where that is a complex and difficult concept.

  • Rev. Arthur L. Kirkland||

    Is that a Liberty or Regent law degree talking, or was your mother a particularly dumb homeschool teacher?

  • Red Rocks White Privilege||

    Not everyone has the prestige of a California Upstairs Liberal Arts College degree like you do, hicklib.

  • ||

    Actually, its only difficult for judges and those with law degrees it seems.

    Normal people understand.

  • BigChiefWahoo||

    So, the credentials win the debate,, eh, Reverend?

  • ImanAzol||

    Fascinating. Have we "normalized" protections on speech and religion the same way? Or are some rights more equal than others?

  • CMurph||

    Normalized is doublespeak for "infringed" and, yes, all rights are being "normalized" to varying degrees these days! Liberty is dead. Tyranny is the new "normal!"

  • Red Rocks White Privilege||

    Checked out the state of the 4th Amendment recently?

  • ranrod||

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

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

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

  • loveconstitution1789||

    The path to ruin has many stones.

    Taking away state legislature's ability to be represented by Senators was one. The massive growth of the federal government was another.

    The SCOTUS should only be reviewing a few cases each year if the federal government was tiny and there were few federal and state laws for them to review.

  • CMurph||

    >By that they (Blocher and Ruben) mean that the right to keep and bear arms is "subject to exceptions, some of >which are derived from history, and to regulations that further certain important government interests."

    Yes--it's been a very long time since most of our rulers and masters have had the stomach to honor their oath to uphold and protect the U.S. Constitution and Bill of Rights! The original founders' idea of a federal government with very limited powers became eroded nearly from the start, and the erosion has been accelerating overall ever since! Almost everyone in the U.S. reports that "something is very wrong with the nation" but they but they are too stupid (or selfish, having become addicted to their .gov "free lunch") to roll back fed.gov!

  • ManBearPig||

    The Supremes will not weigh in on the nonsense coming out of the lower courts until either Kennedy or Ginsburg or both have been replaced. Can't take a chance on Kennedy reversing himself.

  • loveconstitution1789||

    Very astute observation.

  • SimonP||

    You make it sound like it's so easy.

    No, look. From a jurisprudential perspective, the Court really stepped into it when it issued Heller. You can gussy it up as a major "win" for gun nuts everywhere, but the fact of the matter is that no one sitting on that Court has the guts to follow its reasoning to where it logically leads. So they waved their hands at some just-so exceptions and are letting the lower courts develop a theory.

    Do they specifically endorse weapon-based bans? No, but I'm not sure why that matters. The Heller decision specifies the underlying basis of the right to bear arms - as being predicated in a general right to use force in our self-defense - and names various exceptions that are designed to balance that basic right with interests in protecting public safety. So if felons aren't allowed to own guns, if various restrictions and conditions can be placed on their sale, and if you can ban them from so-called "sensitive places," then it's certainly no stretch to suggest that weapons that are wildly more powerful than necessary to defend oneself from harm might be proscribable post-Heller.

  • Telcontar the Wanderer||

    Which is exactly why it should never have opened the door to all of those self-neutralizing-at-best, self-defeating-at-worst half-prohibitions.

    And the fact that self-certain ignoramuses like you are arrogant enough to think they have the knowledge and wisdom necessary to sit in judgment of what is or is not "necessary to defend oneself from harm" is why the state should have no role whatsoever in a person's selection of weapon. A medium-caliber semi-auto rifle with a 30-rd mag is in no way overkill against a gang of 4 or 5 armed robbers or gangbangers, a herd of feral pigs or pack of feral dogs plundering your livelihood, or, first and foremost, the corrupted National Guard and Army columns that the 2A was primarily established to defend against.

    To say nothing of the pointlessness of even adjudicating "necessity to self-defense" when smuggled military rifles, clandestinely manufactured triacetone triperoxide, and commandeered vans and trucks have humiliated state controls in all of the nations you mistakenly hold up for us as role models.

  • SimonP||

    Which is exactly why it should never have opened the door to all of those self-neutralizing-at-best, self-defeating-at-worst half-prohibitions.

    The alternative would have been no Heller majority, so...

    And the fact that self-certain ignoramuses...

    Look, I can imagine exceedingly-unlikely scenarios in which one might need weapons like grenades, missiles, and nuclear weapons to "defend" myself, but the fact of the matter is that the common-law background that forms the basis of the reasoning in Heller isn't quite so fantastical. Most of us do not need weapons to defend ourselves. And most of those of us who nonetheless insist on owning guns and carrying them around will never be faced with 4 or 5 armed robbers or roving packs of feral pigs (or school-attacking grizzlies, for that matter). You're just coming off as a nut job here.

    ...the corrupted National Guard and Army columns that the 2A was primarily established to defend against.

    I know that libertarians love this "final check" argument, but it's just nonsensical to assert this was why the Second Amendment was adopted. The idea is incoherent and not even reconcilable with the actual text. It's like the Second Amendment, for you, is just this vague idea that serves some paranoid delusion you're nurturing, and not, like, an actual legal principle.

  • Red Rocks White Privilege||

    Most of us do not need weapons to defend ourselves.

    Rights aren't utilitarian, shitlib.

  • SimonP||

    Rights aren't utilitarian, shitlib.

    I'm not sure why you think this is a relevant point to make. The "utility" of the right to bear arms is not in question. The question, rather, is whether the limited right articulated by Heller might be defined in a kind of balancing of what's reasonably necessary to protect oneself from harm against public safety concerns.

  • Red Rocks White Privilege||

    I'm not sure why you think this is a relevant point to make. The "utility" of the right to bear arms is not in question.

    You're the one who brought up the issue of need, don't try to passive-aggressively beg off of it now.

    The question, rather, is whether the limited right articulated by Heller might be defined in a kind of balancing of what's reasonably necessary to protect oneself from harm against public safety concerns.

    That's a utilitarian argument, moron.

  • SimonP||

    That's a utilitarian argument, moron.

    Actually, it's not. Look up the meaning of "utilitarian."

    Regardless of whether it is a "utilitarian" argument, it's an absolutely typical way for the courts evaluate permissible constraints on so-called "fundamental" rights. Even the most exacting constitutional standard known under constitutional law - "strict scrutiny" - involves a "utilitarian" balancing of interests, albeit one that is seldom satisfied.

    So just go choke on a dick. Seems to be all you're good for.

  • Red Rocks White Privilege||

    So just go choke on a dick. Seems to be all you're good for.

    The shitlib argues that it's not a utilitarian argument before making a utilitarian argument.

    Go jump in front of a subway, twerp. The fact that you can't do shit about my firearms brings me no end of happiness.

  • BigT||

    "And most of those of us who nonetheless insist on owning guns and carrying them around will never be faced with 4 or 5 armed robbers or roving packs of feral pigs (or school-attacking grizzlies, for that matter)"

    Those circumstances are thousands of times more likely than a mass shooting. So you must agree that mass shootings should be ignored when considering gun rights.

  • SimonP||

    Those circumstances are thousands of times more likely than a mass shooting.

    Which is a flat-out lie, evidently based on not even a superficial inquiry into the question. I was able to easily rebut this assertion with a quick, basic google search. What a fucking waste of space you are.

  • Red Rocks White Privilege||

    When you have to resort to hyperbole and well-poisoning, as is the progressives' want, don't be surprised when someone responds in kind.

    If you want to go off statistics, Hispanics and African-Americans are far more likely to commit gun homicides than whites. In fact, it's not even close; without those populations, our gun homicide rate is the same as most gun-restricting nations.

  • Telcontar the Wanderer||

    @ Red Rocks

    without those populations, our gun homicide rate is the same as most gun-restricting nations

    Not true, by any definition or redefinition, and not helpful.

  • Red Rocks White Privilege||

    Not true, by any definition or redefinition, and not helpful.

    True, by any definition. Whether it's "helpful" or not is irrelevant.

  • Telcontar the Wanderer||

    Not true, as your own link proves quite neatly.

    As was clear from my italicized quote, I was responding exclusively to this line:

    without those populations, our gun homicide rate is the same as most gun-restricting nations

    The US white (/Asian etc.) homicide rate is 2/2.5 per 100k, whereas the average murder rate in the EU, Anglosphere and East Asia is .5/1.5. The % of murders committed with guns in the latter is usually 10% to 33%, eg .05 to .5 per 100k. Thus, in order for the US non-black/Hispanic gun rate to be the same as theirs, it would need to be 0.5 or lower... and your link states that the black, Hispanic and white %s of the gun rate are the same as their %s of the overall rate, which means that all 3 must have roughly the same share of their overall rate committed with guns as gen pop: 70%. And 70% of 2/2.5 is 1.4 to 1.75, not .05 to .5; even 50% still results in 1/1.25, twice the non-US rate.

    The only way your comment could be true is if you included 3rd-world gun control countries in Africa/South America... and that would mean you were comparing the global gun-control-nation gun rate including poor urban black/Hispanic pops to the US gun rate minus them. Which seems just a bit... unhelpful.

  • Red Rocks White Privilege||

    The US white (/Asian etc.) homicide rate is 2/2.5 per 100k, whereas the average murder rate in the EU, Anglosphere and East Asia is .5/1.5.

    Appendix 1 puts the white firearm homicide rate at 1.4%. So your differentiation is statistically meaningless.

    Thus, in order for the US non-black/Hispanic gun rate

    The Hispanic gun rate is 3.6, more than twice as high as the white rate.

  • Telcontar the Wanderer||

    Appendix 1 puts the white firearm homicide rate at 1.4%. So your differentiation is statistically meaningless

    Do you mean "1.4 per 100k"? Because if you actually read my comment past the first 2 sentences, you'd know that 1.4 gun murders per 100k US white people is A, within the range I predicted and B, proves my point.

    The non-Hispanic white (aka white-white) murder rate was 2.6 per 100,000 in 2015 and it has only risen since then. Unless you can prove that significantly less than 50% of said murders were committed without guns, you have no choice to concede that your argument is false.

    ...Unless you're comparing the US white rate by gun to the non-US rate by all weapons, which is supremely disingenuous.

    The Hispanic gun rate is 3.6, more than twice as high as the white rate

    So what? We're comparing the US non-Hispanic(/black) gun murder rate to EU/Anglosphere/Asian gun murder rate.

  • Telcontar the Wanderer||

    Correction

    Unless you can prove that significantly less than 50% of said murders were committed with guns
  • Red Rocks White Privilege||

    So what? We're comparing the US non-Hispanic(/black) gun murder rate to EU/Anglosphere/Asian gun murder rate

    You missed this part from my original comment, dumbass:

    If you want to go off statistics, Hispanics and African-Americans are far more likely to commit gun homicides than whites
  • Telcontar the Wanderer||

    And you missed not only that my first comment was obviously, intentionally and exclusively in response to this part:

    without those populations, our gun homicide rate is the same as most gun-restricting nations

    ...but then also missed that I then specifically re-clarified in terms a toddler could understand that I was responding exclusively to that line:

    Telcontar the Wanderer | 5.28.18 @ 5:11PM | #

    As was clear from my italicized quote, I was responding exclusively to this line:

    without those populations, our gun homicide rate is the same as most gun-restricting nations

    I am given to understand by the learned that "the third time is the charm", so I'll give you one more:

    I WAS RESPONDING EXCLUSIVELY TO THE LINE ABOUT THE US GUN MURDER RATE BEING EQUAL TO THE NON-US GUN MURDER RATE IF THE BLACK AND HISPANIC POPULATIONS ARE SUBTRACTED, AND THIS HAS BEEN THE CASE SINCE MY FIRST REPLY TO YOU

    You evasive, disingenuous twat.

  • Red Rocks White Privilege||

    It's not my fault the country's black and Hispanic populations are empirically the cause of more firearm deaths than the white population.

  • Telcontar the Wanderer||

    But it is your fault that you don't seem to understand that America's gun murder rate does not magically become Eurotopian if you subtract the poorest and most urban (aka "brown") populations from our rate and compare only the wealthiest and most rural (aka "white") US populations to the EU/AS/EA/etc. populations of all classes and regions.

    Incidentally, if you want an argument against Eurotopianism that can actually stand up to 15 seconds' scrutiny, you might note that even with gun murders subtracted, the white US murder rate is still as high per capita as the non-US 1st-world rate, and the US Chocolate & Caramel Peril's are still much higher. Add to that the fact that even if all guns in the US were to magically disappear a good number of gun murders would displace at some lower level of lethality to completed knife and unarmed murders, and it's inescapable that America just has more people attempting murder, across all demographics, than the rest of the developed world.

    IOW, your argument is perfectly wrongheaded; the 2A is not absolved because our white murder rate is the same as others', and so guns don't matter; it is absolved because ours is not the same, but it can be proven that whatever the reason for the high number of US white murders is, guns are clearly not (at least primarily) it.

  • Telcontar the Wanderer||

    I was able to easily rebut this assertion with a quick, basic google search

    Insofar as the "roving packs of feral pigs" you seem to think I was saying attack humans (when what I actually, quite clearly, said was that they do economic harm to rural communities) and the "school-attacking grizzlies" you brought up as a strawman are concerned, I have no doubt you found more instances of mass shootings than porco-ursine assaults. Which is why I never said or meant either of those things, and I doubt BigT did either.

    But I know you didn't find any stats on the number of times animals of all species attacked human agriculture because such a stat cannot exist, and as far as measuring damage is concerned, pigs alone do 0.5 billion $ in crop damage every year, and are only one of dozens of large to medium size animals that do so. Not to mention subsistence hunting, which SARs render at least modestly more effective.

    And as to armed robbery... (continued below)

  • Telcontar the Wanderer||

    ...my "quick, basic google search" found no stats on "number of robbers per robbery", but the FBI UCR states that there were 332,000 robberies in 2016, of which 41% took place in a house or store. My calculator says that's 136,000. So, let's say that only 5% of armed robberies (which are notably not the only kind of home invasion) in locations an AR-15 might be present have more than 3 assailants a year. That's 6,800 a year. Moreover, the NCVS says there are 500,000 robberies every year (they ask victims directly and anonymously, thus discovering events not reported to law enforcement), so assuming the FBI percentages still apply, that's 10,000 a year.

    And I'm pretty sure BigT, for his part, was referring to mass public killings, eg random attacks on bystanders, using the strict definition of "event in which at least 4 people are killed, which probably is a thousand times less likely than 10,000 + other home invasions with 4+ assailants + crop/livestock protection incidents.

    And please note I (and I think he) was talking about incidents in which an AR-15 could be used, including incidents where they aren't but ought to be and hopefully some day will.

  • BigChiefWahoo||

    If it's on google, it has to be true, right?

  • Telcontar the Wanderer||

    The alternative would have been no Heller majority, so...

    No, the alternative is a world in which 5+ justices agreed that "shall not be infringed" is not secret code for "shall be infringed, lots".

    Most of us do not need weapons to defend ourselves

    And most of us never get attacked by armed criminals, so by your "logic", we don't need state controls for public safety. Regardless, the "fewer" of us that do get attacked, and need defending, still number in the millions every year, so this is a pointless digression.

    And most of those of us who nonetheless insist on owning guns and carrying them around will never be faced with 4 or 5 armed robbers

    And the vast majority of gun criminals do not use SARs, much less kill with them. Again, irrelevant.

    or roving packs of feral pigs

    Did you not get I was talking about crop and livestock protection? It's hard to measure economic benefits against saved lives, but pigs, dogs, coyotes, and dozens of other animals do hundreds of millions of $ in damage every year.

    You're just coming off as a nut job here

    So did those arguing for pot legalization and gay marriage 50 years ago. Appeal to Normalcy is just a kind of Appeal to Authority, with no legitimacy.

  • Telcontar the Wanderer||

    it's just nonsensical to assert this was why the {2A} was adopted. The idea is incoherent and not even reconcilable with the actual text

    What an utterly absurd pair of assertions. The idea is not in the least incoherent: the US government is capable of becoming autocratic, and foreign support is not guaranteed (and certainly won't be timely), ergo the people retain the ability to form an insurgency or the nucleus of a new standing army to free themselves. If you think that idea is "incoherent", you either never read or have forgotten the history of the Revolution, during which those precise circumstances unfolded.

    Moreover, it is perfectly reconcilable with the text of the 2A, which clearly states that private armament is necessary to keeping the country free. That in no way specifies that it's only to be used against external invaders; especially since it goes to such lengths to prevent the internal regime from meddling with it.

    Our founders said in the DoI that whenever any form of government becomes tyrannical, the people have the right to alter or to abolish it. In the context of the attempt by the British- the legal government of Lexington and Concord at the time- to disarm the colonial militia, it is obvious that the 2A, like the 1A, 3A, 4A, 5A, 6A, 7A, 8A, 9A and 10A, was at least partially meant as a check on the state the founders themselves created.

  • 10mm||

    "And most of those of us who nonetheless insist on owning guns and carrying them around will never be faced with 4 or 5 armed robbers or roving packs of feral pigs (or school-attacking grizzlies, for that matter). You're just coming off as a nut job here."

    Most of use will insist on stocking our house with fire extinguishers, although in my many decades I have not had a house fire.

    I also wear seatbelts while driving and a helmet while on my bike, even though I've never even come close to a serious crash in either method of travel.

    ...I guess I'm just paranoid?

  • BrianB||

    Immensely greater chance of being in an auto accident or having a house fire than being robbed at gunpoint. I'm only 60 years old, but other than those in the military, no one I know personally has ever come close to being in any situation where they needed a firearm. Myself and many people I know have been involved in auto accidents and fires.

  • BigChiefWahoo||

    You've never "needed" a firearm, so, necessarily, no one else has/does either. I hate to come across as supporting debate by statistics, but your anecdote proves nothing.

  • 2aguy||

    You forgot to mention Scalia's dissent in Friedman v Highland Park where he specifically mentions the AR-15 as being protected...he states it. Though it was a dissent, it was not a dissent in a ruling, it was a dissent against not hearing the Assault weapon ban from the 7th circuit.....he states in Friedman v Highland Park....

    The City's ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F. 3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U. S., at 767–768; Heller, supra, at 628–629.

  • Lord_at_War||

    "I doan need no steenking badges permits..."

  • BrianB||

    I don't know why the courts have such a hard time reading English. The Second Amendment seems to be pretty clearly written to specifically provide for an organized ("well-regulated") militia to repel invasions and so forth. The First Amendment says Congress shall make *no law* to abridge freedom of speech...yet the FCC can fine broadcasters for cussing. None of the judges seem to be able to read and comprehend plain English. This is, of course, assuming that the wording of the Constitution was carefully and deliberately considered, not just casually tossed off without much thought.

  • TxJack 112||

    Prior to 1934, there were no federal gun laws. Every gun law was a state law. After the two year crime wave across the US during the great depression, in which, police often found themselves outgunned by criminals, the new Federal police agency, the FBI pushed for federal laws restricting access to true military weapons. Prior to 1934, you could walk into your local hardware store and purchase a Thompson submachine gun or Browning Automatic Rifle (BAR) both of which were used by infantry squads on patrol in WWII. I have no problem with the SCOTUS ignoring gun cases because if the citizens of a state want to willing leave themselves defenseless, that is their right. IF they wish to rely only on the government to protect them, regardless of the situation, that is their right. My concern is when people such as these push for national laws that restrict my ability to decide how I will defend myself and my family. The 2nd amendment limits the ability of the Federal government to restrict the individual right to bear arms, not the states. The Constitution covers the rights and limitations of the Federal government, not the states and the Feds are SUPPOSED to defer to the states. If we want courts to stop acting as super legislators, then we follow this in all cases

  • Hank Phillips||

    The correct synonym is nullifying.
    The voters came down 49% against the Bill of Rights and 49% for. The Court is but child of its time and will waffle and straddle like always until it imagines a political consensus exists that will preserve at least one of the nominating parties.

  • TxJack 112||

    The intent of the Constitution and especially the Bill of Rights is to limit the power of the Federal government. To do this, we cannot keep looking to the SCOTUS to mandate what is and is not allowed. Gun control v gun rights is a state issue and was always as state issue until 1934 when the NFA of 1934 was passed. It is not a coincidence this law was passed during the first term of the President who did more to expand the power of the Federal government in US history. The only thing the SCOTUS should rule on is when Federal judges get involved in these disputes. They should overturn the decision and immediately send it back to a STATE court for review and adjudication. I would much rather have the Texas state courts decide any limitations on my rights than some pinhead legislator or judge in NY or CA. If people in a state decide to be complete idiots and ban guns so they are totally defenseless, that is their right. They just do not have the right to decide for me as well.

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