Twelve Years After Heller

The Supreme Court will continue to ignore the Second Amendment until it receives a petition it has to grant.


D.C. v. Heller was decided on June 26, 2008. I remember the day well. I had just finished my second year of law school, and was working as a summer associate. My firm flew the summers to the home office in Los Angeles for some training. (Oh the heady days of big law! The legal market imploded by the end of that summer).

I remember waking up quite early, west cost time, so I could read the decisions before work started. I had worked as a research assistant for Professor Nelson Lund's amicus brief in Heller. At the time, George Mason School of Law was ground-zero for Second Amendment scholarship. I was ready.

Around 7:00 a.m. local time, Heller dropped. At first, I was ebullient. Finally, a decision that recognized a right to keep and bear arms! But then I started to read the decision. And I reached the dicta about "sensitive places" and "dangerous and unusual weapons." Where did that come, I thought? No matter. Scalia won! Over the ensuing months, the Second Amendment camp was conflicted. Many were enthused with a victory. Others, like Lund, warned that the limiting dicta could undermine any future legal challenges.

Immediately after Heller was decided, McDonald was filed. And two years later, the Court held that the Second Amendment was incorporated. Chicago residents like Otis McDonald could celebrate. But Justice Alito's plurality said nothing about the scope of the right. In July 2010, I lamented "the epic failure of Heller and McDonald." I wrote, "Without setting any tier of scrutiny, or noting which party bears the burden of proving a constitutional violation, the lower courts would be left uncertain." I was heavily criticized by members of the Second Amendment camp. They warned that my blog might undermine future legal challenges. If only.

Soon enough, it became clear that Justice Breyer's dissent was the shadow majority opinion. Lower-court judges of all stripes would defer to all manner of gun control laws. By that point, even conservative Judges like Frank Easterbrook began to review gun laws with deferential balancing tests. The future did not look promising.

Give it time, we were told. Wait a few years and the Court would eventually clarify the doctrine. The Second Amendment is now normal constitutional law, we were assured. And so time lapsed. 2011. 2012. 2013. 2014. Nothing.

Finally, in 2015, Justices Thomas and Scalia wrote two dissents from denial of cert. They called out their colleagues out for abdicating the Second Amendment. In December 2015, I wrote in National Review, "The lower courts continue to whittle away the Supreme Court's rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene."

Three months later, Justice Scalia passed away. It looked all but certain that Hillary Clinton would replace him. Academics on the left debated whether it was better to overrule Heller, or simply limit the rule to keeping guns at home. (The latter strategy would have been much more prudent). Yet, Donald Trump promised he would appoint judges who were strong on the Second Amendment. And, in large part on that promise, he won. And he appointed two more Justices to the Supreme Court.

In 2017, Justice Thomas dissented in Peruta v. California. That case involved public carry. Only Justice Gorsuch joined him. And in January 2019, the Court finally grants NYS Rifle & Pistol Association. The Court chose the most narrow and insignificant Second Amendment decision imaginable. A victory in that case would hardly make a dent in gun control laws.

But it was not meant to be. New York engineered a flawless effort to moot the case. And several Senators threatened to pack the Court if the case was not dismissed on mootness grounds. (Query which Senator has had more of an impact on the Roberts Court: Mitch McConnell or Sheldon Whitehouse). And the case was dismissed on April 27, 2020.

Justice Alito dissented, joined by Justices Gorusch and Thomas (in part). He too lamented how the lower courts have interpreted the Second Amendment: "We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern."

Justice Kavanaugh, the newest member, concurred in the dismissal. But he said the "The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court." Did Kavanaugh think there were four votes for a grant? If so, he was played.

After NYS Rifle & Pistol, I shared some optimism that the Court would soon grant a Second Amendment case. There were ten cases floating on the docket. By my count, there were four votes to grant: Thomas, Alito, Gorsuch, and Kavanaugh. Certainly, the Court could grant cert on one of them.

On Monday, June 15, 2020, the Court released its orders at 9:30 ET.  The bad news came quickly. The Court had denied certiorari in all ten cases. All of them. The Court also denied review in several qualified immunity cases that had been pending. Query if there was some sort of quid pro quo between the Court's actual and de facto Chief Justices, Roberts and Kagan: I'll vote to deny guns if you vote to deny QI. (See the WSJ's editorial about the Kagan Court).

Justice Thomas wrote a dissent in one of the cases, Rogers v. Grewal. This case challenged New Jersey's public carry law. (I've posted an edited version of the case here.) He repeated a familiar refrain:

The text of the Second Amendment protects "the right of the people to keep and bear Arms." We have stated that this "fundamental righ[t]" is "necessary to our system of ordered liberty." McDonald v. Chicago (2010). Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a "justifiable need" or "good reason" for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court's review. This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens' Second Amendment rights, the Court simply looks the other way.

Justice Gorsuch did not join the dissent. Neither did Justice Alito. Justice Kavanaugh only joined Parts I and III of the dissent. Part II offered an excellent historical overview of the right of public carry. It isn't clear what Justice Kavanaugh found objectionable.

And so it continues. Twelve years after Heller, we are in the exact same place. The government cannot ban the possession of handguns in the home, but all other gun control laws are reasonable. Keep in mind that only D.C. and Chicago banned handguns outright. Those rulings effected only those two laws. That's it! I am sympathetic to Robby George's post, which analogized the judicial conservatives on the Court to the Washington Generals.

There have been a handful of favorable decisions in the lower courts, almost all of which were reversed. Justice Thomas praised these jurists:

Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to keep and bear arms. See, e.g., Mance v. Sessions (CA5 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from denial of reh'g en banc); Tyler v. Hillsdale Cty. Sheriff's Dept. (CA6 2016) (Batchelder, J., concurring in most of judgment); Gowder v. Chicago (ND Ill. 2012); Heller v. District of Columbia, (CADC 2011) (Heller II) (Kavanaugh, J., dissenting).

In Mance v. Sessions, seven judges on the en banc Fifth Circuit were willing to review federal gun control laws with meaningful scrutiny. Seven! But they were a vote short. The Mississippi seat remained empty for far too long, and that vote failed. Soon that seat will be filled.

I am convinced the only way to change the Second Amendment status quo is for the Fifth Circuit, now at full strength, to give the Chief Justices a petition they have to grant. I would much rather lose a 5-4 decision, or 6-3, and know where the Justices stand, than to keep showing up in a fixed match to the Globetrotters.

NEXT: Supreme Court Declines to Hear Trump Administration Appeal of the California "Sanctuary State" Case

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  1. If there were 5 known votes to overturn Heller, or even rule against the 2nd amendment in some more limited way, there would be 4 votes to grant cert. Likewise, were there 5 known votes to extend Heller, even in some limited way, there would be 4 votes to grant cert.

    The best theory I’ve seen is that one of the Heller majority, probably Roberts, has gone squishy, and neither side is confident which way he’d vote. So neither side is willing to risk creating a hostile precedent.

    Under such circumstances, there’s no such thing as a petition the Supreme court must grant. Either side would prefer a localized defeat to a nation-wide defeat, and the Court is already refusing to resolve circuit splits, and gun control laws that can be struck down without reference to the 2nd amendment, just FOPA alone.

    I think there’s no route to a decision except a change of personnel on the Court. One side or the other must become confident of the outcome.

    An additional factor militating against the Heller former majority taking a 2nd amendment case, even one they were confident to prevail in, is that under present circumstances of domestic unrest, they might genuinely fear for their lives if they issued a ruling the left would be outraged by.

    1. The funny thing is Roberts, seemingly being so concerned about his legacy, will leave behind two dismal compromises: the ObamaCare penaltax pulled out of thin air, and backstabbing the Second Amendment. Not a historic record for his grandkids to be proud of.

      1. And that’s the problem with people concerned about “legacy.” Legacy will ultimately be decided by moral truths, not the Washington Post.

        1. Or, the left figures, by whoever is (re)writing the history books. Which is probably why, among all academic disciplines, history is the most tilted left.

          1. Seriously, Brett, what ISN’T tilted left in your eyes? If we add up all the institutions you think are committed leftists, you’d get just about the entire population of the US minus you.

            1. Seriously, when somebody does a survey, and finds over 30 Democrats for every Republican, how can you say a field isn’t tilted?

              No, the institutions controlled by the left aren’t remotely most of the population, they picked the high ground to take over, not the plains.

              So, in a country where the voting population is about evenly split, almost all media outlets run Democratic. But you can accomplish that with a tiny fraction of the population.

              1. Makes you wonder what jobs all these non-leftists can find, if corporations, Silicon Valley, all government agencies, the military, all of academia, the media, and all of the judiciary are pure leftists.

                1. By keeping quiet. Nearly all corporations, government agencies, academia are busy sending out BLM emails, as an example.

                  1. I’ve gotten a lot of such e-mails! I am not fooled into thinking those gestures are about allegiance and not capitalism.

                    1. You realize you’ve just proved my point, don’t you?

                    2. If you point is that secret conservatives are everywhere, I’d ask that you deconflict with Brett, who thinks secret liberals are everywhere.

              2. Democrats != committed leftists, Brett. You continue to be unable to understand how one can do a job professionally if they have a political position.

                Makes me wonder how you do (or did) your job.

    2. Not to mention Impeachment. Don’t think that Pelosi wouldn’t do it.

      And it shows just how much of a Banana Republic we have become.

      1. I’m sure she’d impeach, but that really doesn’t mean anything but an “asterisk” without a conviction.

  2. I’ll add that I wouldn’t totally rule out the possibility that Roberts has gotten assurances through back channels from the Republican leadership such as McConnell, telling him that the pro-2nd contingent on the Court is not, come Hell or high water, getting any new members.

    McConnell has stopped confirming Trump judicial nominees, and instead is keeping the Senate in nominal session to prevent recess appointments. I believe he’s done with cooperating with Trump, and is now looking forward to a Trump free future, perhaps as minority leader.

    It’s not just the conservatives on the Court that enjoy playing the role of the Washington Generals, after all.

    1. The reason we haven’t seen any more cases is because the liberal textualism that Scalia creates in Heller need further development…so now we have Gorsuch taking the lead on developing liberal textualism so we might get another 2A case in which the Court tackles “bear”. Very exciting times.

      1. I took a look at a time line of judges being confirmed, and the rate has dropped to a crawl. There were more judges confirmed in December alone than this entire year.

        And, yeah, nominal sessions if you look at the Senate legislative calendar; They convene, hold a quick “vote” without the people actually present, and then adjourn, once a week or so. Basically nothing is getting done in the Senate except making sure Trump can’t do any recess appointments.

        1. What would be the GOP’s end game for that?

    2. You keep making this delusional argument that McConnell is trying to prevent Trump from making appointments. This is delusional. You should stop saying it.

  3. ” Finally, a decision that recognized a right to keep and bear arms! ”

    Judicial activism, clinger-style!

    1. Judicial activism is working around the constitution to authorize fuzzy to non-existent government powers, not supporting an enumerated right.

      They may be clingers-to-guns, the source of the phrase, so I encourage you and others to loudly exclaim how you wish the second amendment overruled without going through the amendment process.

      Be very clear and loud in your intents. No need to hide.

  4. The Supreme Court will continue to ignore the Second Amendment until it receives a petition it has to grant.

    I thought that “had to grant” case was one of the may-issue concealed carry cases, given that there is a bona fide circuit split on the matter (with the DC circuit finding that may-issue is unconstitutional)

    Keep in mind that only D.C. and Chicago banned handguns outright. Those rulings effected only those two laws. That’s it!

    This is not entirely true. A few suburbs of Chicago such as Oak Park also banned handguns, and the Heller/McDonald rulings were cited as precedent in Moore v. Madigan which overturned IL’s total ban on carrying firearms

  5. First it was the social conservatives lamenting that their gay-bashing days were over, despite all they had done for the Federalist Society.

    Now the gun absolutists are expressing fear that the Supreme Court of their dreams will not deliver Wild West jurisprudence . . . with unspoken dread at the prospect they may not have the Supreme Court of their dreams much longer.

    Bad couple of days for the clingers. And perhaps just the start of a miserable six months . . . followed by who knows how long in the hellscape that is a modern America.

    1. Wow I completely agree with you. Modern America is indeed a hellscape.

    2. I can’t wait till the civil war starts just so that I can watch the bodies of people like you end up in the guillotines.

      1. You’ll be waiting until you are replaced, by your betters, after a bitter, inconsequential lifetime of watching America stomp on your bigoted, backward, conservative preferences.

  6. I’m losing the thread here. Just what is it about gun rights that you want the courts to do? I don’t have any criminal record, so as far as I know I can acquire my own private arsenal limited only by my source of funds. What is it you think you are restrained from doing that you want to do?

    1. The court needs to clarify what the “bear” in bear arms means. If a state, like Hawaii, has no “bearing of arms” through a restrictive law, does that violate the 2nd Amendment.

      The Court needs to examine what “arms in common use” from the Heller decision means. Arms in common use include so called “assault weapons” with magazines that hold more than ten rounds. They are certainly not dangerous an unusual weapons.

      These are just the two most pressing and important issues.

      1. And the Court needs to underscore that the exercise of rights simply cannot be made subject to discretionary licensing; “Rights” and “licenses” are logically incompatible.

      2. Kavanaugh goes by text and tradition so outside the home the RKBA means we have a right to open carry that can be heavily regulated. So historically Americans that held themselves out as being pro-2A supported regulating handguns and concealed weapons outside the home.

        1. Neither “text” nor “tradition” says any such thing.

          1. Then why did Texas heavily regulate handguns outside the home for decades while holding itself out as a pro-2A state? And why did the Texan George HW Bush sign the gun control school zone legislation while holding himself up as pro-2A?? And why did pro-2A Reagan outlaw open carry as governor of California?? Such a head scratcher.

            1. Firstly, neither Bush nor Reagan were conservatives in any sense, and certainly not on gun rights. Second, Texas’ law was based on the 2nd Amendment not being incorporated, as were all of the other state laws.

              1. Nope, Texas and the leaders in the state were pro-2A irrespective of incorporation. Reagan and Bush held themselves out as supporters of the 2A.

                1. Virtually every Republican President, and most of the Democratic ones, “hold themselves out” as supporters of the 2nd amendment. Mostly they’re lying.

                  1. Unfortunately that is what “tradition” is…people behaving a certain way over decades.

    2. Depending on your state, you may no be able to acquire anything. New Jersey, for example, requires a showing of “need” which can be arbitrarily withheld by the local bureaucracy.

      What we want to courts to do is to protect the Second Amendment to the same standards that they protect the First.

      1. If abortions or voting, both unenumerated, had the same restrictions as the enumerated right to keep and bear arms, there’d be riots. Picture ID to vote? YOU ARE A NEONAZI. Picture ID to buy a gun? Not restrictive enough.

        1. That’s because to liberals, killing babies and having buttsex are the highest order of human freedom.

    3. In California alone:
      A. 10 day waiting period, allegedly to prevent hot-tempered mass killers and suicides, but it applies whether or not you own any guns already, and whether or not you have a CCW which requires a background check.
      B. Need a background check to buy ammo.
      C. Impossible to get a CCW in some counties, and open carry is forbidden at the state level: so no “bear” at all.
      D. Illegal to have any magazine holding more than 10 rounds.
      E. Most modern handguns are not on the “known to not be unsafe” list, and illegal to buy.
      F. All sorts of rifles are illegal strictly because they look scary. Rifles which are identical except for wood or plastic furniture will be one ok, one illegal.

      and a zillion other infringements.

      Several states require permits just to own a firearm,

      Hawaii has issued no CCWs. Zero, zip, zilch. And no open carry. So no “bear” at all.

    4. “What is it you think you are restrained from doing that you want to do?

      Well… let’s see just off the top of my head. In some states you can’t purchase a gun without the approval of the local law authority. The sheriff doesn’t like you… or think that people shouldn’t have guns? Too bad, eh. Perfectly legal.

      In many cities such as Los Angeles and New York there exists a license to carry… however, only the politically affluent seem to ever get one. Too bad, eh. Perfectly legal.

      In many states it costs several hundred to almost a thousand dollars more in addition to the cost for a gun in order to jump thru the legal hoops necessary to buy the gun.

      In California they have an technologically impossible requirement for new guns (approved by the courts) which means that no one can buy a new, improved and safer firearm.

      There are thousands of people across the states who had a conviction for non-violent crimes from decades ago who are forbidden from buying a firearm… even though they have lived a law abiding and good life since then.

      That’s only scratching the surface.

    5. What is it you think you are restrained from doing that you want to do?

      Example: In California you can’t buy and possess common magazines with capacities of more than 10 rounds.

  7. Keep an eye on Duncan v Becerra. Based on the oral arguments, there’s a very good chance that this will generate a circuit split on a widespread hot button gun control topic, instead of something obscure like the New York case. The 9th is no longer the progressive policy rubber-stamp it used to be.

    1. What scares me are the AK-47s at CHAZ.

      That should be illegal — things like “extortion” and “terrorizing with a firearm” come to mind.

      1. It is illegal, but going back to its Jim Crow origins, gun control has never been intended to apply to those the government favors.

        1. Why go back to Jim Crow?? Just go back to Governor Reagan outlawing open carry after he saw a scary black dude open carrying a gun and pee peed his panties!

          NO JUSTICE
          NO PEACE!

          1. How is that not going back to Jim Crow? Took a lot longer for Jim Crow to die than just Brown v, some parts of it are still in place.

      2. Extortion and terrorizing with a firearm are already illegal. Or are you implying that anyone open carrying a firearm should be considered guilty of terrorizing?

    2. What the heck was obscure about the New York case? NYC was literally treating residents like serfs, telling them they couldn’t leave the city with their own lawfully owned property. You couldn’t get away with that for stamp collections, the idea that you could issue an order like that concerning something related to a civil liberty was absurd.

      Then they tried to moot the case by replacing the law after certiori was granted, with a new law that allowed you to transport firearms to a limited range of destinations outside the city, but only so long as you never stopped along the way! I say “tried to moot”, because the only reason a tactic like that works is that the Court wanted the case to be moot. They didn’t have to accept that it was moot.

  8. “Dicta” is the part of the holding of the court you don’t like. For example, the court held that Open Carry is the right guaranteed by the Constitution and the court held that the 19th-century prohibitions on concealed carry are constitutional.

    Pan Face Amy Swearer of the Heritage Foundation said that the Heller decision was not about carrying weapons, even though the Heller decision opened by pointing out the challenged D.C., ordinances prohibited the carrying of loaded firearms in one’s home.

    The Supreme Court, of course, struck down that law in addition to the ban on handgun possession.

    19th-century case law upheld convictions for concealed carry in the home.

    I will amend my definition of “Dicta.” “Dicta” is the part of the decision you don’t like that is supported by the text, history and tradition of the law, and in the case of District of Columbia v. Heller, it is the central holding of the decision.

    No other part of the decision says a case (Nunn, likewise Chandler) perfectly captures the meaning of the right to keep and bear arms.

    My website contains a plethora of links to historical American and English case law and statutes. And yet lawyers and the great unwashed who have never studied the law, are the most vocal about what the law.

  9. Just what we need now: more morons with military-grade rifles guarding statues of slavers and traitors. Someone please remind me: why are we pretending that the words “A well regulated Militia, being necessary to the security of a free State” have been scratched out of the Second Amendment?

    1. Why are you pretending they’re followed by “the right of the militia”?

      1. Why are you pretending that everything we all learned in school about grammar and English usage should be disregarded when it comes to reading the Second Amendment?

        1. With whatever respect you think you deserve, the right is clearly granted to the people.

          You are the last person on the planet to criticize someone’s understanding of English if you can’t interpret those five words correctly. “…the right of the People…” is not ambiguous.

          As if it isn’t bad enough that you so amazingly fail as the grammatical argument, you also feel it’s necessary to pretend that anyone who supports the 2A also supports treason and the celebration of such.

          I’m not even going to touch your ‘military-grade rifles’ nonsense, though it’s yet another blurb you deserve to be hit over the head with repeatedly.

          You don’t have to try so hard to be a dipshit. One of your arguments on its own is plenty to prove that.

          I pity peons such as you.

          1. Correcting your correction

            2A doesn’t grant us anything.
            Its the People telling the Government to keep its hands off.
            Not the government graciously granting the peasants a privilege.

            1. Thank you for the pedantic input.

              Did you also notice the typo where I wrote “as” instead of “at?”

              1. Its not pedantic at all.

                Grant vs recognize is a rather huge difference in the way to think about it.

                1. When the argument is whether the 2A right is a “militia” right versus a right of the People, it most certainly is pedantic, because the distinction you wish to make is immaterial to the issue.

                  You’re not wrong, but your remark isn’t relevant to the ignorance MoreCurious displays.

          2. After you’re done pitying me, look for videos of the vigilantes guarding the statue of that great slaver, Christopher Columbus, in South Philadelphia. If they’re not brandishing military grade weapons, then I’m sure you’ll have a brilliant explanation along the lines of “well, those weapons aren’t capable of killing nearly as many people per minute as an actual military grade rifle.

            1. If you don’t know anything about firearms, which you clearly fucking don’t, then you shouldn’t be bitching about them in the first place.

              No military uses AR-15s in combat. Period.

              Furthermore, if you really want to bitch about how the 2A only applies to militias, despite the obvious stupidity of that argument, then one has to wonder WTF you think a militia is supposed to be for, and whether they should in fact possess weapons SUITABLE FOR MILITARY USE.

              You’re so stupid that you argue against your own arguments. You can’t even decide which idiotic argument you want to put forth.

              Do yourself a favor and keep quiet. Nobody needs any further evidence of how ignorant you are.

              1. Not to continue the pedantry of another commenter, but the “military-grade” is moot from the beginning. It doesn’t matter if an AR-15 is “military-grade” or not because nothing in the 2nd amendment can be construed to exempt military-grade weapons from the arms that the people have a right to keep and bear. Quite the opposite in fact

                1. I agree completely, thus the smackdown about whether a militia should have weapons suitable for military use if he’s going to insist the 2A only applies to them and not the individual.

    2. Don’t you pieces of shit ever get tired of lying?

      1. And don’t you and Jason Cavanaugh ever get tired of relying on crude, adolescent name-calling instead of engaging in adult debate?

        1. Someone who can read “..the right of the PEOPLE” and walk away claiming it really means the right of the MILITIA does not deserve, or qualify for, ‘adult debate.’

          Particularly someone who pretends they’re an authority on grammar and English language.

          I might also remind you, that your original post called people morons. So fuck off with your victim complex.

          1. Right, because they’re not trying to debate. They’re gaslighting us.

          2. What could make for a better Tuesday night than to get a couple of foul-mouthed clingers riled up?

            1. They’re trying to make each other feel better the only way they know how. Why they gotta do it on a public forum I don’t know.

              Regardless, were I in their shoes I’d feel a bit rotten. Give them a bit of time.

              1. But they make it almost too easy! When there’s no challenge to it, it takes away some of the fun. Remember when this blog — in the Washington Post days — attracted a slightly different following?

                1. Funny how you’ve run away from the argument and instead are now just socializing as though you didn’t make ignorant and inflammatory remarks from the get-go.

                  I’ve news for you kid, I read this blog when it was WaPo too.

                  1. It’s hard to have an argument with someone who would rather use middle-school naughty words than debate.

                    1. Again, you started the argument by calling people morons. You have absolutely no standing to bitch about language.

                      You’ve been proven both ignorant and wrong, and now insist on pretending you’re a victim.

                      Laughable, if not pathetic.

                  2. Mommy! He’s being mean! I didn’t want to use nasty words, but he started it!

                    1. Aren’t you tired of acting like a whiny bitch yet? Still have no capacity to refute the arguments put forth because your delicate ears have been offended?

                      Take note that Krychek_2 and I have had a reasonable discussion. Take note that he didn’t start off with insults like you did.

                      Learn to take some fucking responsibility for yourself. Maybe your mommy should have taught you that.

                2. I do. Part of it is the platform. But the regulars have also become substantially more angry and bitter and living in their own world.

                  Getting positively like Free Republic in here.

          3. Jason, if someone named John Smith gets indicted in New York, the caption will read “The People of the State of New York vs. John Smith.” But nobody seriously thinks that means any individual New Yorker; everyone understands that means the people collectively, acting collectively through the district attorney, to enforce a law that the people collectively passed via their legislature.

            Given both the Militia Clause, plus the fact that in law “the people” usually does refer to the people collectively, I don’t think your reading of it to mean individuals is nearly as clear as you do.

            1. Then parts of the 1st, 4th, and 9th Amendments also aren’t individual in your view?

              How precisely can the collective people exercise a right that none of them possess individually? I can’t petition the Government for redress, but if I get enough signatures from other people who also can’t do it, then it’s suddenly ok?

              SCOTUS covered the grammatical aspect of the 2nd Amendment 12 years ago in their decision.

              1. And it’s not the first time I’ve disagreed with the Supreme Court on the meaning of language, and I suspect you have too.

                The argument is that the states were worried that federal power would increase, to the detriment of state power, and it was state governments themselves which needed to be protected against federal incursion. Hence, state militias, which unlike our modern idiotic militia movements actually are well organized and might be able to mount a military challenge to federal authority if need be. If the Texas legislature decides a federal law is tyrannical and refuses to allow its enforcement within Texas, Texas has a state militia that can provide muscle to enforce the state’s decision.

                I think that issue was later resolved by the Civil War, but that would have been in line with thinking at the time of the ratification of the Bill of Rights.

                As for the other amendments, the meaning of a word, including the word “people”, is frequently determined by context. The Second Amendment’s militia clause provides context that your side ignores.

                1. And yet if the Founders had intended for the 2A to apply only to militias, it would have literally said so. They clearly knew the word ‘militia,’ as it’s written into the prefatory clause, so the obvious step if your interpretation was correct was to write “…the right of the militias…”

                  They did not, because it doesn’t apply to just the militias. They intentionally used a different word, which in law clearly means that the two are not synonymous.

                  1. I’m not aware of any rule of law that says that because different words are used, they can’t be synonymous. And part of my objection to your post is your continued use of the word “clear” to describe your position; even if you’re right, it’s far from clear, and my interpretation is at least plausible.

                    But I think the better question is this: If the Second Amendment is about individuals, then why include the militia clause at all since it just muddies things? It would have been far cleaner to just say that individuals have the right to private gun ownership. And, if they also wanted to protect state militias, to make that a separate amendment just so there would be no question.

                    1. Using logic in this thread? You’re asking for trouble.

                    2. If the two words can be synonymous then perhaps they are synonymous in the other direction. IE the people, all of the people, ARE the militia. Indeed many state constitutions define the militia as all able-bodied persons residing in the state

                      Also, the states’ rights to keep their own militias falls under the 10th amendment. All other amendments in the Bill of Rights address matters of individual rights

                    3. Speaking of justification clauses that muddy the waters:

                      That retrospective laws, punishing acts committed before the existence of such laws, and by them only declared penal or criminal, are oppressive, unjust, and incompatible with liberty; wherefore, no ex post facto law shall ever be made.

                      Florida Const. art. I, � 18 (1838) Source: The Commonplace Second Amendment

                      Question: In Florida, can ex post facto laws be passed? And if not, how does this illuminate the justification clause of the Second Amendment?

                    4. I’m fairly certain the idea that using different words are specifically meant to imply they are not synonymous was brought up by this blog, possibly relating to the ACA. I’m not sure how to provide evidence of it that would convince you.

                      I do think it is clear, because the right is clearly linked to the people – not the militia. It literally says ‘of the people.’ I see no rational justification to pretend that it really meant ‘only the militia,’ as no other enumerated right is treated that way.

                      I understand your argument and thoroughly disagree with it for the reasons I’ve stated, as well as the grammatical lesson provided in the Heller decision itself. It indeed would have been more clear to write it a different way, but I don’t believe that it is unclear as written.

                2. You got 3 choices. 1) Start your own country and make your own laws. 2) Pass a Constitutional amendment that eliminates the Second Amendment. 3) bitch and whine.
                  Now Krychex, either do 1 or 2 or STFU. The Supreme Court has invalidated your “argument” and recognized an INDIVIDUAL RIGHT with no connection to “militia”. Silly argument over “militia rights” OVER.

            2. Speaking of justification clauses:

              In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

              New Hampshire Const. pt. I, art. XVII (1784). Source: The Commonplace Second Amendment

              Question: In New Hampshire, can a crime be tried in a county other than which it was committed? Even when it might actually move the trial closer to the scene of the crime, depending on the location of the county courthouse?

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