Kamala Harris on the Second Amendment

A 2008 brief that she signed (1) argued that a total handgun ban was constitutional, and (2) strongly suggested that the Second Amendment doesn't secure an individual right.

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In 2008, Kamala Harris signed on to a District Attorneys' friend-of-the-court brief in D.C. v. Heller, the Supreme Court's leading Second Amendment case. Of course, she may have changed her views on the Second Amendment since then (perhaps in light of precedents such as Heller); and she may have different personal views than the ones she expressed as a D.A. (though note that she signed on to the brief as a signatory, and not just as a lawyer for the signatories). But this brief likely tells us something about her views on the Second Amendment.

[1.] To begin with, the brief urged the Court to reverse the decision below, and thus to reinstate D.C.'s handgun ban. Thus, Harris's view in that case was that the Second Amendment doesn't preclude total bans on handgun possession.

[2.] The brief also came at a time when the great majority of federal courts (including the Ninth Circuit, which covered Harris's jurisdiction, San Francisco) viewed the Second Amendment as not securing any meaningful individual right of members of the public to personally keep and bear arms. Rather, those courts viewed the Second Amendment as endorsing (to quote the then-existing Ninth Circuit precedent, which the brief itself later cited),

the "collective rights" model, [which] asserts that the Second Amendment right to "bear arms" guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons.

Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like.

And the brief supported that majority view among federal courts: Affirming the D.C. Circuit decision, which rejected the collective rights model and recognized an individual right to own guns,

could inadvertently call into question the well settled Second Amendment principles under which countless state and local criminal firearms laws have been upheld by courts nationwide.

Thus, Harris's view in that case was thus that the "collective rights" view of the Second Amendment was correct, since that was the "settled Second Amendment principle[]" in lower federal courts at the time.

[3.] Now the brief also said that "The District Attorneys do not focus on the reasons for the reversal [that it was urging], however, leaving these arguments to Petitioners and other amici." Nonetheless, it argued that,

For nearly seventy years, courts have consistently sustained criminal firearms laws against Second Amendment challenges by holding that, [among other things], (i) the Second Amendment provides only a militia-related right to bear arms, (ii) the Second Amendment does not apply to legislation passed by state or local governments, and (iii) the restrictions bear a reasonable relationship to protecting public safety and thus do not violate a personal constitutional right. The lower court's decision, however, creates a broad private right to possess any firearm that is a "lineal descendant" of a founding era weapon and that is in "common use" with a "military application" today….

The federal and state courts have upheld state and local firearms laws, as well as criminal convictions thereunder, against Second Amendment challenges on three primary grounds. In holding the D.C. laws at issue to be unconstitutional, the decision below undermines each of these grounds, which also could be cast into doubt by an affirmance in this case.

First, courts nationwide have upheld criminal gun laws on the basis that the Second Amendment provides only a militia-related right to bear arms. See, e.g., Scott v. Goethals, No. 3-04-CV-0855, 2004 WL 1857156, at *2 (N.D. Tex. Aug. 18, 2004) (affirming conviction under Texas Penal Code § 46.02 for unlawfully carrying a handgun because Second Amendment does not provide a private right to keep and bear arms); Silveira v. Lockyer, 312 F.3d 1052,1087 (9th Cir. 2003) (holding that California residents challenging constitutionality of California's Assault Weapons Control Act lacked standing because Second Amendment provides militia-related right to keep and bear arms); State v. Brecunier, 564 N.W.2d 365, 370 (Iowa 1997) (upholding firearm sentence enhancement because defendant "had no constitutional right to be armed while interfering with lawful police activity")….

The lower court's sweeping reasoning undermines each of the principal reasons invoked by those courts that have upheld criminal firearms laws under the Second Amendment time and again. First, under the lower court's analysis, the Constitution protects a broad "individual" constitutional right, one that is not militia-related, to possess firearms….

This certainly seems to me like approval of the principle listed as (i) in the brief, which is the view that "the Second Amendment provides only a militia-related right to bear arms."

Now perhaps this passage could be read as simply describing what courts were doing, or as suggesting that the Supreme Court could either adopt principle (i) or perhaps some of the other principles instead. But it certainly sounds to me like an endorsement of the "only a militia-related right to bear arms" view, especially since that's the lower federal courts' "well settled Second Amendment principle[]" to which the brief had earlier alluded (see item 2 above).

Plus principle (ii) is an endorsement of the view (rejected by the Court two years later in McDonald v. City of Chicago) that states and localities can institute whatever gun bans they want (even total gun bans) without violating the Second Amendment. And even if we focus on principle (iii), under which gun laws are constitutional if they "bear a reasonable relationship to protecting public safety," the brief was supporting a total handgun ban—if that is permissible on the theory that it "bear[s] a reasonable relationship to protecting public safety," then I would think a total ban on all guns would be, too.

The brief closed with a suggestion that "the Court exercise judicial restraint and explicitly limit its decision to the three discrete provisions of the D.C. Code on which it granted certiorari" (the handgun ban, a licensing requirement, and the requirement that guns be stored disassembled or bound with a trigger lock), because "This would avoid needless confusion and uncertainty about the continued viability and stare decisis effect of this Court's—and other courts'—prior Second Amendment jurisprudence."

This passage doesn't expressly urge the Court to adopt a particular line of reasoning. But, again, the first principle that the brief mentioned, and the one most clearly consistent with lower federal courts' "prior Second Amendment jurisprudence," was that the Second Amendment didn't secure an individual right that ordinary citizens could exercise in their daily lives. It sounds like that is at least one approach that the brief is endorsing.

So, to summarize:

  1. Kamala Harris, as D.A., definitely endorsed the view that a total handgun ban didn't violate the Second Amendment.
  2. She also seemed to endorse the view that the Second Amendment secures only a "collective" or "militia-related" right, and not the individual right that the Court ultimately recognized in D.C. v. Heller.

An article by Cam Edwards (Bearing Arms) on Aug. 11 made a similar argument in concluding that"Kamala Harris Doesn't Think You Have the Right To Own a Gun" (to quote its original title), but an Agence-France Press "Fact Check" on Aug. 18 labeled that claim "false." I find the "Fact Check" quite unpersuasive, at least as to the specific question of Harris's views on the right to own a gun.

AFP writes, "Rather than outright opposition to gun ownership, Harris has supported legislation aimed at increasing safety." It may well be that Harris wouldn't promote a statute banning guns outright. But her brief states that she thinks governments have the constitutional power to ban at least all handguns, and likely guns more generally.

AFP writes, "Nor has she called for the destruction of the Second Amendment, which says: '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.'" But she has endorsed, as I read it, the view that the Second Amendment doesn't protect a normal individual right to own guns, rather protecting only a "collective right" under which states can limit gun ownership to members of a state-designated "militia."

AFP goes on to say, "Legal scholars, however, say that although Harris supported the amicus brief, it is false to conclude from it that she believes—as the article claims—'you don't have the right to own a gun'":

"The brief in question is not about whether there is an individual right under the Second Amendment. It is about the crime-related consequences of invalidating the DC handgun law at issue in Heller," Aziz Huq, of the University of Chicago Law School, told AFP by email. Huq studies how constitutional design interacts with individual rights and liberties.

Adam Winkler, a specialist in gun policy at the UCLA School of Law, made a similar argument.

"This statement is false," he said of the article's claim.

"The brief she supported argued that DC's gun laws should be upheld but not because there was no right to own a gun," Winkler said in an email to AFP.

"Rather, the brief argued that the laws should be upheld because there is a tradition of gun restrictions, and DC's were reasonable regulations," said Winkler, the author of "Gunfight: The Battle Over the Right to Bear Arms in America."

Again, for the reasons I gave above, I think Profs. Huq and Winkler are mistaken. The brief does seem to endorse the collective rights view of the Second Amendment, under which there really is no right to own a gun. And, again, at the very least the brief endorses the view that all handguns could be banned, consistently with the Second Amendment.

Finally, the brief turns to another scholar:

The amicus brief which Harris joined argued "that at least as far as the Second Amendment is concerned, it doesn't relate to private rights," said [Jake] Charles, of the Duke Center for Firearms Law.

But he added: "I'm not sure it's fair to claim that as her current position given that the Supreme Court decided in Heller that people do have that right, and I haven't seen her questioning the Heller decision."

Here, I agree that (1) the amicus brief does take the view that the Second Amendment doesn't protect any "private rights," and (2) we can't be certain that this remains her view today. But it is at least plausible that her views about the subject haven't changed, and that if she could participate in reshaping the Supreme Court, she would reshape it in favor of reversing the Heller decision, and moving the law back to a view under which "the Second Amendment … doesn't relate to private rights."

 

NEXT: Today in Supreme Court History: August 26, 1964

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  1. A democrat doesn’t respect the US Constitution?
    Say it ain’t so!

    1. Democrats respect it about as much as conservatives do. Each side chooses which sections of the Constitution it thinks are absolute and which are subject to interpretation. That the two sides choose different sections for special protection and others for wide open interpretation doesn’t change the fact that both sides do it.

      So please stop pretending your side is as pure as the driven snow and it’s the other side that’s the bad guys.

      1. No, I agree that the Republicans aren’t really good on the Constitution, on any absolute scale. They ARE, however, better on the 1st and 2nd amendments. And that matters. It matters a lot. The Republican party doesn’t fear an armed populace that’s free to disagree with them, the Democratic party does.

        It’s the difference between authoritarian and totalitarian.

        1. You basically agreed with what I said, that both sides pick and choose which parts are absolute. That you then articulated a rationale for why the picking and choosing your side does is preferable (with which I thoroughly disagree, by the way) doesn’t change that.

          1. Yes, I regard the Republicans as trending authoritarian, and the Democrats as trending totalitarian, and consider that an important difference. Historically that difference has proved to be a big deal.

            1. So it works out that the Republicans think you should have to just live with a bullet inside you, AND they think you should have to just live with a fetus inside you. Looking at Mr. Trump specifically, he’d love to give totalitarianism a try, so long as he gets to run it, but he’s scared witless of having Mr. Biden running a totalitarian regime.
              I get that. I myself am against anyone else having the authority to make decisions for me, but might be willing to give it a try if I can be the one with unlimited power. The difference is that I’m not seeking such a position, whereas Trump thinks he already has one.

              1. Don’t put the penis inside you and you won’t have a fetus inside you.

                1. Don’t put the penis inside you and you won’t have a fetus inside you.

                  You do know that this decision is not always hers to make, yes?

              2. The Republicans will tell you you have to live with your neighbor being allowed to own a gun, which isn’t the same thing as being told to live with being shot.

                They WILL tell you not to kill that baby. Were they as totalitarian as the Democrats, they’d also tell you that it wasn’t enough to obey that law, you had to publicly agree with it or STFU.

                That’s the fundamental difference between authoritarian and totalitarian: Authoritarian wants your obedience on a limited range of subjects. Totalitarian wants your heart and soul, or else.

                1. Right, because Republicans don’t want teachers fired for asking students to write about a cartoon that compares cops to the KKK. Nor do they want librarians fired for Drag Queen Story Time. And Trump certainly doesn’t want athletes fired for taking a knee.

                  1. Do you think someone should be held responsible for arranging to have child sex criminals show their penises to the children of woke parents and Democrat libraries?

                  2. We also don’t think teacher’s unions should have a monopoly on public education. Teacher’s unions are doing for education what police unions have done for policing.

                    1. Fair point, albeit irrelevant.

                  3. Nor do we want teachers advocating separate but equal, nor librarians reading children books about “Sam the Slavecatcher” (assuming such exist).

                2. “The Republicans will tell you you have to live with your neighbor being allowed to own a gun, which isn’t the same thing as being told to live with being shot.”

                  Depends on the neighbor. Safe? Responsible? No problem, then. “Hold my beer and watch this” instead? That might be a problem.

              3. “looking at Mr. Trump specifically, he’d love to give totalitarianism a try,”
                Another of your gross distortions and evidence that you don’t distinguish authoritarian tendencies from totalitarianism.

                1. For all that has been said, Trump could have grabbed a lot more “emergency” powers this spring had he wanted to.

                  1. You’re suggesting he could have done something. This would require him to have an any natural ability to do anything.

                2. True enough, if objective reality is a “gross distortion”.

        2. ” They ARE, however, better on the 1st and 2nd amendments.”

          True as to the 2nd, but not the 1st. Unless Ed Meese no longer counts as a Republican.

      2. Maybe you’re responding to some of his previous comment history, but I don’t see what was wrong with this one.

        If a Democrat doesn’t respect the Constitution that’s a standalone fact, independent of whether Republicans do it. And vice versa.

        I hope you’re not a lawyer. You can’t defend your carjacking client by pulling out old newpaper clippings and pointing out other carjackings. Decent people aren’t carjackers, Democrats, or Republicans, and we’re the opposite of convinced by such arguments.

        1. Because the comment to which I was responding implied that Democrats are particularly inclined to disrespect the Constitution.

          1. They are “particularly inclined” to disrespect, as are Republicans. Your error is assuming that Republicans are the implied standard for comparison in every discussion.

            Maybe at RedState or DailyKos. A lot of us here are independents and the standard of comparison is decent respect for entire Bill of Rights.

            1. When did I say that Republicans are the implied standard for comparison in every discussion? If you’re going to say I’m wrong, at least get my position right first.

              1. You implied it, and you damned well know you implied it.
                Haven’t you yet learned not to bandy words around here?

          2. Nah. You *inferred* that. It wasn’t *implied*.

        2. “If a Democrat doesn’t respect the Constitution that’s a standalone fact, independent of whether Republicans do it.”

          True enough, but then also if a Democrat does or doesn’t respect the Constitution, that’s a standalone fact, independent of whether or not Republicans think she does.

          ” Decent people aren’t carjackers, Democrats, or Republicans”

          OK

      3. “So please stop pretending your side is as pure as the driven snow and it’s the other side that’s the bad guys.”

        Good advice. You should take it.

        Or don’t you recall multiple comments about how GOP is solely to blame for our debt?

        1. You’re not distinguishing being responsible for being big spenders from being responsible for the debt. It’s the difference between spending a million dollars and paying cash, versus spending a million dollars and maxing out your credit card to do it.

          Both sides spend; only one side refuses to raise the revenue to pay for it.

          1. GOP capped SALT, Dems want repeal it, even holding up virus relief. SALT deductions over 10K benefit upper middle class and above.

            Biden says no tax increase for people making up to 400K.

            Now let’s look at Dem spending plans…

            1. “GOP capped SALT, Dems want repeal it”

              How are the Strategic Arms Limitation Talks relevant to taxes?

              1. I am not sure you’re joking or not. But the SALT also means the State and Local Taxes deduction from your federal income tax.

                1. I was joking.

          2. The problem here is that the Democrats don’t raise taxes to pay for spending. They raise taxes to run a big deficit at a higher level of spending.

            You can point to one or two instances where the deficit declined under Democrats, (Modern Democrats, I mean, not pre/circa WWII.) but they’re cases where a bubble created a surge in revenue fast enough that extra spending couldn’t be raised fast enough to keep up. Like having your household budget look good the week after you won the lottery, and before you’ve had time to blow it.

            1. Obama was well on the way to deficit reduction; take a look at his numbers when he took office and when he left office. And that was with a Republican Congress refusing to raise taxes when they weren’t cutting them.

              1. Yeah, it’s easy to be “well on the way to deficit reduction” if your starting point was the largest one time increase in deficit spending in history up to that point.

                1. Why did the deficit jump so much early in Obama’s first term? Was it because Republicans broke the economy? Yes? Ok, let’s pin that on Obama, and give Trump credit for the economy he got from Obama still working well until Trump could break it.

                  1. Well, it wouldn’t be the first time Trump has taken credit for someone else’s accomplishments.

                  2. How exactly did “Republicans” break the economy? Especially when Democrats held the House….

                    1. The Bush deregulation of the financial markets paved the way for the 2008 recession. Those regulations were in place for a reason.

                      And by the way, if lower taxes and less regulation lead to good economies, we should have had a fantastic economy when Bush left office. Taxes and regulations were at their lowest point in decades.

                    2. Which “The Bush deregulation of the financial market” are you talking about?

                      Perhaps the Gramm Leach Bliley Act? Passed by strong bipartisan consensus in Congress, and signed by Clinton?

                    3. They passed the Gramm-Leach-Bliley Act. You know, Gramm(R), Leach(R) and Bliley(R), who were members of a Republican-controlled Congress.

                  3. The virus broke the economy in nearly every country on earth.
                    Get real.

                    1. The virus broke the economy during Obama’s first term?
                      That’s some top-grade revisionsim.

            2. Clinton raised taxes, to howls of forthcoming disaster from Republicans.

              That’s a simple fact, which I’m sure you have some BS spin for.

              1. He got lucky, as the promise of infinite wealth from that thar newfangled internet thingee cause the losening of trillions of investment dollars, overcoming the downside of the tax increase.

                Why the hell does everybody live in some alternate reality of this fact?

                Notice the fallout: Congress, and state governments were not going to take the black ink sitting down, and within two years were spending the unexpected tax largess and borrowing again on top of it.

                A couple of years after that, a 30% cutback proposal on those monstrous spending increases, leaving everything still well, and I mean well ahead of where it was just a few years earlier, was met with sophistry of “omg draconian cuts”.

                That’s when I truly understood what fraudulent, power-hungry criminals politicians were.

                1. “Notice the fallout: Congress, and state governments were not going to take the black ink sitting down, and within two years were spending the unexpected tax largess and borrowing again on top of it.”

                  Then, the W administration made the case that lowering the federal debt would be bad for the national economy, so they’d better cut taxes on the wealthy, and the surplus was a deficit again.

              2. Bernard,
                I have nothing but praise for Mr. Clinton on the financial front. He is the last president who will ever offer a balanced budget.
                He not only raised taxes but also went after entitlements

                1. “He not only raised taxes but also went after entitlements”

                  Well, that was Mr. Gingrich’s idea, really. It was working until we decided that lowering debt wasn’t a good idea, after all, and so we should cut taxes on people who already had a great deal of wealth.

    2. There’s no indication that she would act contrary to established Supreme Court precedent any more than a President would act contrary to Planned Parenthood v. Casey.

      1. The President doesn’t have much opportunity to act contrary to Planned Parenthood v. Casey… the offenders there are state legislators.

    3. It’s not unprecedented, as Dave Koppel points out Sotomayor either lied or purposely misled the Senate in her confirmation hearings:

      “Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. Ominously, Justice Sonia Sotomayor joined the Breyer dissent—contradicting what she told the U.S. Senate and the American people last summer….

      The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

      Contrast that with her Senate testimony: “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.”

      1. These statements are not contradictory.

  2. One more reason to vote Biden/Harris. Thanks, EV!

    1. Because gun confiscation worked so well for the Acadians.

      1. They only want to confiscate guns from idiot assholes.
        I’m sure you’ll hardly miss them.

  3. 1: She is a gun grabber.

    2: “Fact” checkers are inherently a contradiction of terms.

    3: Vote Trump/Pence!

    1. She is a gun grabber, as evidenced by the number of guns she grabbed back when she was a prosecutor.

      “2: ‘Fact’ checkers are inherently a contradiction of terms.”
      Sure, if “facts” are things you really, really WANT to believe, rather than things that are rooted in objective reality.

      “3: Vote Trump/Pence!”
      That’s what Mr. Putin said. Surely he has a strong interest in seeing a strong United States… right?

      1. How many mobsters pay off a politician (Clinton) and then want to see her defeated?

        1. In reality, or in your active imagination? I need to know which one in order to answer your question, because the two are different.

  4. When the next generation of lawyers and judges mature, the 2nd Amendment and 1st Amendment are goners.

    Just like our liberty and freedom.

    These future Leftists being groomed by today’s wacko’s don’t believe in the text of the Constitution, only that a tool exists to exert their beliefs onto others.

    1. Yep, apparently Harris (like most progressives) sincerely believes that the Constitution means what she wants it to mean.

      1. Whereas you have a clear and sober understanding of the Constitution that just happens to mean what you want it to mean.

          1. You are sadly mistaken. And welcome to take your stupidity with you to the grave.

        1. Kinda like words meaning whatever you want them to mean.

          I fear for the Republic.

          1. Yep, state means country and militia means everyone. Funny that when tyranny reared its ugly head in 1861 Jefferson Davis didn’t simply blow a shofar to get men with guns (the unorganized militia) to come out of the woodwork in order to fight for freedom…Davis for some reason organized an army and procured military weapons.

            1. “Militia” is supposed to mean basically everyone. That’s what distinguishes it from “army”.

              1. So why did Jefferson Davis feel compelled to organize an army and procure military weapons when he had a perfectly good armed unorganized militia to work with when the dastardly Lincoln threatened liberty in 1861?? Such a head scratcher. 😉

                1. Well, it’s a head scratcher if you don’t understand WHY a well regulated militia is to be preferred to an army, for purposed of having a free state.

                  Here’s a clue: The way the militia were no good for the war of 1812? That’s the militia working as intended.

                  1. Unorganized militia clearly refers to men with their own arms…even the events at Lexington and Concord involved militia arms stored at a central location. So Jefferson Davis organized a militia for the Mexican War on the condition the federal government would provide rifles because the men clearly did not have military grade weapons…those were the weapons of the organized militia stored at central locations for the state militia. So the unorganized militia would have had arms like knives and muskets but Davis was not about to get involved in an actual war with those arms.

                    1. Jesus you’re an idiot. It was primarily powder reserves and cannon stored at the powder house, not individual rifles. Powder because that shit is volatile as hell and cannon because they’re so large that it’s a pain for them to be moved everywhere. In any case most of the stores had been removed from the powder house in the weeks before.

                    2. ravenshrike, you are dumbass. By using the term “rifle” as a synonym for long gun when discussing the Revolutionary War means I will ignore you from here on out…you are an idiot. You want to sit at the adult table you have to be able to control your flatulence…stinky.

                  2. ” if you don’t understand WHY a well regulated militia is to be preferred to an army”

                    Keeps federal expenses down.

              2. “‘Militia’ is supposed to mean basically everyone.”

                Not in English.

                1. You’re right. It doesn’t include people under 17 or over 45, women, and the physically disabled. But it includes “basically everyone” else. See 10 U.S.C 246(a).

                2. No James, it meant “registered voters.”

                  1. Which you know from your expertise in “educational policy”, right?

                3. It is basically all adults as in Switzerland.

                  1. “It is basically all adults as in Switzerland.”

                    English is not the national language of Switzerland.

              3. Brett,
                I going to have to disagree w/ both you and Sebastian. There is a difference between a militia and a *standing* army, not a militia and an army per se. Yes, the militia is everyone but once it combines into a single fighting force it is an army.
                Neither Mr. Lincoln nor Mr. Davis relied upon an “army” as either of you apparently define it. Their various armies were combined of various militias sent by each of their States. Just to use one example from the Army of the Potomac, do you consider that the 2nd Wisconsin Infantry Regiment, 6th Wisconsin Infantry Regiment, 7th Wisconsin Infantry Regiment, 19th Indiana Infantry Regiment, and the 24th Michigan Infantry Regiment, viz, the Iron Brigade, were in bivouac in their respective State capitals on April 12, 1861? No, the soldiers mobilized and left their occupations to head to war. Likewise w/ those south of the Mason-Dixon Line.

                1. According to Heller the 2A is referring to the unorganized militia, if Davis called forth organized state sectioned militias armed with military weapons from central stores then that undermines the Heller reasoning…and in fact the CSA Army and militias were armed with military weapons confiscated from federal forts and state militia stores and whatever the CSA could purchase on the open market. Furthermore Jefferson Davis organized a militia during the Mexican War contingent on being supplied with military rifles paid for by the feds, i.e., not men fighting with their personal arms.

                  1. You raise an interesting point, one in which I am not fully prepared to concur or to rebut. For proper analysis it requires study of the Militia Acts of 1792, 1862 and 1903. While I have downloaded each I have not yet had time to review them.

                    Nevertheless, I am uncertain that there was any distinction between the organized and unorganized militias until 1903. For this reason I raised the question of whether the bulk of the units during the Civil War, on either side, could be deemed organized militias. I question whether the fact that some units may have mustered and trained prior to Fort Sumpter deems those units distinguished as to either organized or unorganized if the distinction between them was unknown. After 1903, clearly it was. But before?

                    I’ll have to reread Heller to determine if the history researched for and set forth in it provides a different story. However, to me presently, using the distinction in it does not necessarily undermine the reasoning. As the 2A is applicable to “a well-organized militia”, it necessarily includes both what we now characterize as both the organized militia and unorganized militia. Any attribution to the organized militia, within the context of Heller’s factual circumstances, would have been meaningless and irrelevant as Heller and those like situated would only have been within the unorganized class.

                    After I review the Acts, I ought to be able to provide a more exhaustive response. Perhaps there will be a future opportunity to do so.

      2. It’s a “living Constitution”, remember?

        That’s their premise to claim it says whatever they want it say.

        1. That’s not what that means either. Otherwise non-originalist judicial opinions would be a lot shorter than they are.

          1. “In United States constitutional interpretation, the living Constitution or loose constructionism is the claim that the Constitution and other constitutions, holds a dynamic meaning, evolving and adapting to new circumstances, without being formally amended.”

            Sure sounds like that to me.

            1. Yep, “sex” includes dudes that dress up like women and tuck their junk between their thighs and dance like no one is watching! You go girl!!

              1. If sex for you includes dudes who, in the parlance of Aerosmith, looks like a lady, that’s your business. At least it’s your business according to the Supreme Court.

                1. What’s the point of Title IV if the definition of sex is meaningless? Do you know?

                  1. My definition of sex isn’t meaningless, not that this has anything to do with your sex habits.

        2. “That’s their premise to claim it says whatever they want it say.”

          What’s YOUR premise to claim it says whatever YOU want it to say?

          1. It doesn’t say what I want it to say. It says what it says.

            1. Which gives us the question of why you think it says what it doesn’t say.

  5. She is about as likely to change her opinions on the Second Amendment, as RBG is to change her views on abortion.

  6. Popcorn for breakfast? Hey, why not?

    1. Pursuant liberal constructionist judicial philosophy of Gorsuch and Scalia dinner can include breakfast foods but breakfast can only include breakfast foods. So one can have an omelette for dinner but one can’t have surf and turf with a baked potato for breakfast. So dinner can mean breakfast but breakfast can’t mean dinner…or is it the other way around?? I guess the key is what result you want.

      1. How does the Hobbit practice of Second Breakfast factor in?

      2. Hey, it’s five o’clock somewhere!

  7. I have always wondered why the Bill of Rights, which otherwise limits what the federal government can do to citizens, in the Second Amendment gives the government the right to draft citizens into the militia.
    As Alice told the Red Queen, if you close your eyes, hold your breath, and try real hard, you can believe anything.

    1. Because one of the concerns the Bill of Rights addresses was that the federal government would trample on the rights of the states. So even though most of the Bill of Rights applies to individuals, the Second and Tenth specifically protect the states.

      1. “Because one of the concerns the Bill of Rights addresses was that the federal government would trample on the rights of the states. So even though most of the Bill of Rights applies to individuals, the Second and Tenth specifically protect the states.”

        Because the founders didn’t know how to say “Right of the State” and thought that “Right of the people” (used several other places and always in terms of an *individual’s* right) meant the same thing? Your own example gives that statement the lie–the 10th Amendment specifically mentions the right of the people *separate and apart from* the *powers* of the state.

        Even grammar doesn’t support this “collective right” theory. As illustration, consider this sentence: “A well-educated population, being necessary to the security of a Free State, the right of the people to keep and read books shall not be infringed.” It cannot (without willful obtuseness) be read as restricting the right to keep and read books only to the well-educated.

        1. Good point –
          “Even grammar doesn’t support this “collective right” theory. As illustration, consider this sentence: “A well-educated population, being necessary to the security of a Free State, the right of the people to keep and read books shall not be infringed.” It cannot (without willful obtuseness) be read as restricting the right to keep and read books only to the well-educated.”

          Additionally – It is the antithesis of the Bill of Rights to argue 2A only gives the individual a right to keep and bear arms when the government gives you permission. ie when serving in a militia. Why even include a provision that limits a right to the government’s discretion in the BoR?

          1. The 2A limits the federal government and has nothing to do with individual rights. Btw, if the 2A creates an individual right why was McDonald necessary?? So the very fact Scalia believed incorporation was necessary reveals how absurd his Heller majority is…it’s an individual right that initially only applied to Americans in DC and federal territories and not the several states.

            1. Mcdonald was necessary due to the need to incorporate under state law

              1. Nope, 1A specifically refers to Congress…2A doesn’t…such a head scratcher. 😉

            2. So the entire BoR is about individual rights, except the 2A?

              Seems to me that your argument requires one to be a moron to accept it.

              1. Nope, Establishment Clause and 10A and 2A are federalism provisions. 14A and Incorporation, and not the actual BoR, makes the others individual rights which makes the 2A an anomaly if you believe Heller…which is why McDonald is necessary.

                1. Try again. Incorporation has literally nothing to do with whether those rights are individual or not.

                  The 1A contains clear language regarding the rights of the people.

                  The 10th is the ONLY ONE among the Bill of Rights (which stops at 10, btw…) that speaks to general divisions of who gets to control what rights that had not been mentioned.

                  The fact that you include the 14th Amendment in the “Bill of Rights” indicates an ignorance that cannot be corrected, and your opinion should be considered in that light.

                  Try reading the 3rd Amendment and claiming it isn’t individual. Try the 4th. Try attending a goddamn civics class once in a while perhaps.

                  1. Wow, I hope you are new to the very fulfilling hobby Constitutional law analysis because if it has been a long time hobby it has been a huuuuuuuge waste of time. The 14A is what makes the BoR amendments “individual rights” via the process of “incorporation”. Once again, if you can’t control your flatulence you have to stay at the kiddie table…smelly.

                    1. The BoR, as commonly understood, means only the first 10 amendments to the USC. The balance are just known as “amendments to the USC”.

                      Stop being a child with the name calling.

                    2. Omg PeckerRR, u r a dumbass too…the BoR only grants individual rights via the 14A—implicit in that statement is that the 14A is not in the BoR!!! You guys are stinky…learn to control your farts.

                    3. Sadly, you are again incorrect.

                      The rights were individual to begin with. They cannot be interpreted to be exercised any other way. As expected, you failed to respond to my request regarding the 3rd or 4th Amendments, because doing so would clearly demonstrate how absurd your position is.

                      The 14th Amendment instructed the States that they had to abide by those same restrictions as the Federal government. Nothing in the 14th changed any text of any previous Amendment, and the text (of the BoR Amendments) clearly indicates the rights in question can only be exercised if they are individual rights we all possess.

                      Your theory would indicate that the 3rd Amendment didn’t mean anything at all until the 14th, because soldiers COULD be forcibly housed in someone’s home without objection, because it would’ve been just one individual’s home, and no individual possessed a 3A right to not quarter soldiers.

                      That isn’t just wrong – it’s asinine.

                    4. “The rights were individual to begin with.”

                      Indeed. The critical question is who, exactly, is bound to honor them. At ratification, the answer was “the federal government”. Nobody who isn’t the federal government is limited by the Second Amendment.
                      Later on, the 14th amendment came along, and current legal interpretation is that most of the first ten amendments are also limits on the states. The historical trend has been to extend the list of “who is limited” by the Bill of Rights and the list of Rights so protected.
                      This is accompanied by people who wish the extension had not occurred, who entertain themselves by noting that the limitations are not explicitly in the text. So the 1A explicitly limits Congress, and the 14th doesn’t come out and say “all the rights guaranteed in the Bill of Rights cannot be invaded by the various States”. All you need is a cabal of highly-placed judges to make some changes.

                  2. “The 1A contains clear language regarding the rights of the people.”

                    You seem to be reading a different document than the one that was ratified here in the United States. The one we have here says “Congress shall make no law” which obviously means that Congress can make laws child porn.

                  3. “The 10th is the ONLY ONE among the Bill of Rights (which stops at 10, btw…) that speaks to general divisions of who gets to control what rights that had not been mentioned.”

                    Unless you count the 4th.
                    Which allows for the issuance of warrants to overcome the right against having one’s person or papers searched by government. Who can issue warrants? The government.

          2. ““Even grammar doesn’t support this “collective right” theory. As illustration, consider this sentence: “A well-educated population, being necessary to the security of a Free State, the right of the people to keep and read books shall not be infringed.”” It cannot (without willful obtuseness) be read as restricting the right to keep and read books only to the well-educated.””

            Try again. Your construction has a premise paraphrased as “a well-educated population is necessary to the security of a free state” and a conclusion that doesn’t follow from the premise, paraphrased as “the right to keep and bear books belongs only to the well-educated” That’s a non-sequitur.
            Rephrasing your premise to fit the conclusion you want to reach, you get “books are necessary to the public to create a well-educated citizenry” now you get the conclusion you wanted “the right to keep and bear books cannot be denied to any citizen”.

            The problem is that if the premise is false, then so is the conclusion. So, if books aren’t necessary to the public to create a well-educated citizenry, then they can be restricted, even to citizens.

            1. The problem is that if the premise is false, then so is the conclusion. So, if books aren’t necessary to the public to create a well-educated citizenry, then they can be restricted, even to citizens.

              No, that’s wrong as a matter of both grammar and logic. It’s not a premise and a conclusion. It’s a fact and a rule.

              1. How did you get into a law school without being able to read for content? The LSAT tests pretty thoroughly for that.

        2. Better yet, try considering Religion a collective right. Or abortion.

          1. Religion would work better as a collective right.
            As it stands, a person’s religion is whatever they say it is. God told me to cut the beating heart out of my enemies at sunrise with a knife made of obsidian. therefore, laws against kidnapping and murder are infringements on my religious liberty.

        3. susancol

          Thanks for your grammar example, nails it!

        4. More likely that it didn’t occur to the founders that some day it would seriously be argued that private citizens have a fundamental right to own a weapon that can blow away 50 schoolchildren in less than a minute.

          And your books example would be on point if education, like the militia, was under the exclusive control of state government.

          1. Actually we have effectively outlawed machine guns…which begs the question why can’t we outlaw handguns??

            1. I think you mean “raises the question,” not “begs the question.” Except that it doesn’t do that, either.

              1. I couldn’t be more with you, Don Quixote, but that battle is lost.

              2. Machine gun is a type of gun just like handguns are a type of gun…and historically handguns have been regulated to such a degree as to make them almost illegal outside the home unlike hunting rifles and shotguns. So treating handguns like machine guns would pass constitutional muster pursuant Kavanaugh’s “text and tradition” analysis…so sadz. 🙁

                1. “Historically” speaking you wrong. Specific curbs on handgun ownership are very much a middle 20th century idea.

                  1. Try second half of the 19th century for Texas and Wyatt Earp PeckerRR. Keep in mind the Colt revolver is what made men equal…which is why to this day whites freak out when Blacks carry a gun.

                    1. Your cite fell off. I would also like to add your casual and yet completely ineffective insults are not helping your credibility.

                    2. PeckerRR, I have discussed these things numerous times and the Wyatt Earp cites are in the Heller dissent and everyone in this comment section knows about Texas’ history of strict handgun regulations.

            2. Machine guns were effectively outlawed by a poison pill amendment to FOPA meant to kill the bill entirely deemed passed in the dead of night by that utter fuckwit Rangel. Proponents of the bill decided that rectifying the insane abuses of the 1968 GCA were more important than keeping newly minted machineguns legal.

          2. During the Founders’ era, private ownership of cannon and even of entire warships was allowed and common. Either of those weapons can “blow away 50 schoolchildren in less than a minute”. Your premise is demonstrably false.

            1. So we should be allowed to own Tommy Guns like Al Capone??

              1. Assuming you’re not a felon or other kind of prohibited person, you are allowed to own “Tommy Guns”.

                1. So you would support a federal registration program for all handguns along with a tax every time a handgun changes hands?? That would cut down on criminals using handguns just as it has cut down on criminals using machine guns.

                  1. Criminals would simply steal or buy guns on the black market as they do now. How may felons are arrested every year for possession of a gun? They either owned the gun before their conviction or acquired it illegally.

                    1. I guess that is why so many Tommy guns are used in crimes these days…oh wait, they aren’t.

                    2. They weren’t being used that often before the NFA, either. Such use of machine guns as was happening in crime was mostly a product of Prohibition inspired gang warfare, and ending Prohibition made that largely go away.

                    3. Bellmore, so if the feds wanted to reduce crime they should allow Tommy guns to be sold again because dum dum criminals will buy them to be like Tony Montana and then while committing a crime the gun will prove less capable than guns currently on the market and the cops can arrest them! But we have to keep this plan a secret…shhhhhh.

                    4. Criminals rarely used full auto firearms even when they were easily available. They’re not really that useful in most criminal circumstances.

                    5. “They’re not really that useful in most criminal circumstances.”

                      Depending on how you define your terms, this is undeniably true. A fully-automatic weapon is no use at all for shoplifting, or forgery, or reckless driving. Of course, no gun is useful across all criminal circumstances.
                      In the ones where guns are useful, a fully-automatic weapon is about as useful as any other gun. Where you want to intimidate a victim, it’s quite effective.

                  2. ” That would cut down on criminals using handguns just as it has cut down on criminals using machine guns”

                    NO. It’s the “on and after” sentence enhancements that did that.

                2. “Assuming you’re not a felon or other kind of prohibited person, you are allowed to own ‘Tommy Guns’.”

                  I can’t afford one, when will one be appointed to me?
                  I’d prefer a GAU-8, mounted in an A-10.

            2. If I want to shoot up a school, I’m going to have a hard time getting a cannon or warship over there, and an even harder time doing so without detection.

              1. Yet you can crash 8000 gallons of gasoline right through the front door.

                1. Right, unless a solution fixes every possible problem it can’t be considered.

              2. Not really. Most people in the Founders era lived in towns and villages along the coasts or near rivers. Water was the primary means of transportation and essential to commerce. Floating a warship within range of the school, church, houses and everything else of the local town was both trivially easy and common. It was also largely taken for granted.

                Cannons were made to be pulled by horses or mules and could be set up for firing by Napoleonic era crews in less than a minute. You might notice it (but maybe not since lots of horse-based noises also happened outside the school) but not in time to do anything about it.

                A cannon or warship might be noticeable today but that’s not relevant to the point. You said “it didn’t occur to the founders that some day it would seriously be argued that private citizens have a fundamental right to own a weapon that can blow away 50 schoolchildren in less than a minute”. You are ignoring that in the Founder’s own time such a right already existed and was commonly exercised. (In case it’s not obvious, the right being ownership, not shooting up schoolchildren.)

                1. But the question is not what conditions were like in 1789; the question is what they are like now. Today, I doubt I could get a cannon within a mile of a school without someone saying something.

                  1. Do you pay any attention to what you write?

                    First, the conditions in 1789 are exactly relevant to what the Founders would or would not have considered normal in 1789.

                    Second, you could easily get a cannon within a mile of pretty much anything you wanted today. A mile is a big distance with lots of intervening fields and buildings. But you don’t need to since modern cannons can shoot for tens of miles – which is even easier to get within range of, again, pretty much anything.

                    Third and I know you’ve been told this before, even today you can privately own a cannon. Very few do but it’s because they are really, really expensive, not because it’s forbidden. And yes, you can tow it wherever you like.

                  2. A cannon will fit in the bed of a pickup truck, and I routinely drive mine to school parking lots. A camper would conceal it until you wanted to fire it, and a competent engineer ought to be able to figure out how to mount it for firing in the bed.

                  3. “Today, I doubt I could get a cannon within a mile of a school without someone saying something.”

                    McVeigh drove his bomb right up to the building and parked next to the daycare center.

                2. ” Most people in the Founders era lived in towns and villages along the coasts or near rivers. Water was the primary means of transportation and essential to commerce. Floating a warship within range of the school, church, houses and everything else of the local town was both trivially easy and common. It was also largely taken for granted.”

                  And a modern battleship can throw shells dozens of miles inland, and a guided missile cruiser has even longer range, Plus, unless I’m misunderstanding the premise, a ballistic-missile submarine can launch a missile that can land anywhere on the planet. Yay! We have better warships nowadays.

          3. Pretty sure the founders would have been supportive of weaponry that could blow away 50 redcoats in a minute. The fact that technology could also be used for evil surely did not escape them.

            Then there’s the fact that it has never happened. The closest was the Bath School disaster, but that was primarily caused by a bomb.

            1. And a second bomb that fortunately didn’t go off. Don’t forget that.

            2. “Pretty sure the founders would have been supportive of weaponry that could blow away 50 redcoats in a minute.”

              Meh. Depends on whether or not they expected to be mistaken for Redcoats.

              Recall that after the Revolution, the new US government had to put down many rebellions. Say, did the Founders say to those people “of course you have a right to rebel against your government”, or did they put down the rebellions with force?

          4. “More likely that it didn’t occur to the founders that some day it would seriously be argued that private citizens have a fundamental right to own a weapon that can blow away 50 schoolchildren in less than a minute.”

            Or maybe they did, and that’s why the Second Amendment doesn’t just read “The right of the people to keep and bear arms shall not be infringed.”

        5. But “population” isn’t a limiting term; everyone is a member of the population. “Militia” is a limited class of people not everyone is or can be a part of.

          So your example would be more accurate if it was “Well-educated landowners, being necessary to the security of a Free State, the right of the people to keep and read books shall not be infringed.” Now the question is if the right is conferred just on the identified landowners, or if everyone has a right to books whether or not they own land? And if it’s the latter, then what is the purpose of the introductory phrase identifying landowners?

      2. “Because one of the concerns the Bill of Rights addresses was that the federal government would trample on the rights of the states. So even though most of the Bill of Rights applies to individuals, the Second and Tenth specifically protect the states.”

        So, if Arizona decides that the way it want to run its militia is to allow, say, any able bodied person to purchase hand grenades, M2 brownings, RPGs and what have you over the counter, cash and carry, federal law has no footing to interfere with that?

        1. I think the Second Amendment specifies “well regulated” militia.

          1. Sure. But who is doing the regulating? When you say “Because one of the concerns the Bill of Rights addresses was that the federal government would trample on the rights of the states”, is it your view that the feds can dictate to the states the details of how the states can run their militias? That doesn’t seem to provide the states much protection from the federal government.

            I think you have to pick one of:
            1)The 2nd means the people have the right, and neither the states nor feds can interfere
            2)The 2nd means the states have the right, and the feds can’t interfere
            3)Neither the states nor the people have the right, and the amendment is a nullity

            1. I don’t think the feds can micro manage it, but I don’t think the complete charade you suggested would cut it either.

              And my view is that there probably is a common law right to private gun ownership, whether or not the Second Amendment provides one. At the same time, all rights are subject to reasonable regulation. You have the right to free speech, but that doesn’t mean you get to shout under my bedroom window through a bullhorn at 3 AM. You have the right to free religion but that doesn’t mean you get to hijack a plane and fly it into the World Trade Center, even if you’re acting out of religious belief. You have the right to trial by jury but that doesn’t mean the state can’t have procedural rules regulating how juries are selected and seated. Etc.

              Likewise with guns, I’m not trying to grab your guns, but I do reject the absolutist notion that any regulation whatsoever violates the Second Amendment. But there are some in your camp who see any regulation whatsoever, be it ever so reasonable, as an intolerable violation.

              1. “I don’t think the feds can micro manage”

                OK, let’s define micromanage. Can the feds forbid possession of the common weapons of the infantry by state militia members?

                1. It depends on what you mean by possession. If those weapons are being used by the militia while training or engaging in military activity, then no. I think the feds probably could forbid the state militia from allowing individual militia members to bring them home at night; whether the feds ought to impose such a regulation is a different question, but if they did, I don’t think it would be unconstitutional.

                  1. “I think the feds probably could forbid the state militia from allowing individual militia members to bring them home at night”

                    Taking as a given your conjecture that the 2A is all about protecting the state militias from a tyrannical fed, why can the feds impose such a restriction?

                    The Swiss, for example, have their militia keep them at home; they don’t intend to be Quislinged by finding their armories seized. If you want to protect the states against the feds, how can you let the feds mandate things like exactly how and where the *state* militia stores their weapons?

                    1. “Taking as a given your conjecture that the 2A is all about protecting the state militias from a tyrannical fed, why can the feds impose such a restriction?”

                      The Constitution expressly grants supremacy to federal law over state.

                2. ” Can the feds forbid possession of the common weapons of the infantry by state militia members?”

                  Sure, by virtue of the fact that the commander-in-chief is a federal officer and can give orders to the subordinate military officers to turn in their issued weapons.

          2. At the time, and even ow, meaning well trained; as in able to buy lots and lots of ammunition for target practice without burdensome taxes.

            1. Sorry, what does being able to buy lots of ammunition have to do with whether someone is well trained?

              1. Well, start with this: How does one train in the use of a gun?

                1. Right but if the purchase is taxed that implies it’s a private sale. Which would have nothing to do with the militia unless militia members are now being expected to provide their own ammunition.

                  1. “…unless militia members are now being expected to provide their own ammunition.”

                    In colonial times that was the usual practice.

                2. “Well, start with this: How does one train in the use of a gun?”

                  I did Air Force Basic Military Training in the summer of 1985. We had a four-hour-long lecture class in the afternoon of, as I recall, around the 20th day of training, followed by 4 hours at the rifle range the next morning. Each of the recruits deployed a total of 50 .22 rounds downrange. 40 rounds were scored.
                  Later, in tech school I was taught the care and feeding of the M61A1 in the nose of an F-4E. Zero live rounds were expended. Later still, after tech school, I did a correspondence course to upgrade my skill level from 3 to 5. This involved training on aircraft I never touched or even saw. According to my personnel records, I’m qualified to maintain the GAU-80 main gun of an A-10 aircraft and to load 2000 pound bombs on the main bomb bay of a B-52. I’ve never been within 100 miles of a BUFF. I walked past a partially-disassembled A-10 in tech school, but never touched it because the weapons shop I was assigned to after training was an interceptor group which was then using F-4 fighters, so I was trained on F-4’s in tech school. Other trainees trained on the A-10 and never touched the F-4 because they were going to units that had A-10’s.

            2. The taxes were requested by hunters and go to wildlife management & preservation. Don’t forget that.

          3. I think the Second Amendment specifies “well regulated” militia.

            It has that in the preamble, not in the grant of authority.

      3. So, why doesn’t the Second Amendment read something like

        Congress shall make no laws restricting state controlled militias.

        Why would the Founders have taken such a simple concept and, in this ONE instance, obfuscated it in word soup?

        Is it also your position that the term “people” in the First Amendment refers to a collective group of people organized, managed, regulated, and directed by state governments rather than each individual? Or, similarly, how do you interpret “people” in the Fourth Amendment – is it your position that “persons” in that context perhaps refers to state and local politicians and “houses” refers to state and local government buildings?

        Those drafting the Bill of Rights seem to have understood the difference between “state” and “people”. The Tenth Amendment makes this clear when it clearly distinguishes between “state” and “people”:

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

        Is the last use of “states” in the Tenth Amendment merely surplusage and should have instead read as

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the people.

        Or perhaps it your position that the use of the term “people” in the Second Amendment is correctly viewed as a scrivener’s error in a little reviewed document that was so long and complex that states felt it necessary to “ratify so you can find out what is in it”?

        1. OK, back up a minute. If the Second Amendment is about private ownership of guns, why mention the militia at all?

          1. It provides context on why it is important for individuals to keep and bear arms. The Constitution also has a preamble which provides context for the content of the rest of the document.

            1. But how does the existence of a militia provide context? Your position would be that even if there were no militias, individuals would still have the right to own guns, right?

              What does the existence of the militia add to the analysis? And what would be lost had the militia clause not been included?

              1. Well, for one thing, it clarifies that the firearms in question are “arms”, not “guns”. “Arms” has a specifically military context, it refers to the equipment carried by a soldier.

                So what the people were guaranteed the right to own and carry were not “firearms”, specifically, but military equipment, generally. As Tench Coxe put it, “every terrible implement of the soldier”. It was a right to own and practice with the equipment you’d have been expected to use in militia service. ALL of it.

                Sporting and self defense arms are more a 9th amendment right. The 2nd amendment is about military arms and other equipment.

                1. Thanks for covering.

                2. So you’re seriously proposing private ownership of anti-aircraft weaponry? If so, you’re nuts, period, full stop. Al Quaeda wouldn’t even need to get hijackers onto planes; they could just stand a mile away from the airport and take out every plane taking off and landing. Who could possibly object to that?

                  1. Brett is essentially correct in his distinction. And it doesn’t lead to your extrapolation.
                    I think the drafters were being careful when they used the language “keep and bear”. Certain arms weren’t capable of the soldiers “bearing” them. A cannon was one example, and they and like semi-immobile equipment were normally stored in armories. These arms then were usually owned and regulated by the respective States.
                    An arm that an individual could “bear” though is arguably protected. This is why Mr. Justice Scalia, in a well-known report which scandalized some, said he would not prejudge whether a Stinger missile was unprotected.

                  2. Assuming some patriotic American didn’t take them out first.

                    A observes B pointing a Stinger at an airplane and shoots him dead.
                    Did A lawfully exercise his right of 3rd person self defense?

                    Oh, and Krychek_2, last I heard, Heroin was illegal.

                    Doesn’t mean it’s scarce…

                3. So why didn’t the unorganized militia come out of the woodwork in 1861 when tyranny reared its loooong face?? Jefferson Davis for some reason organized an army with arms supplied from federal forts, state militia stores, and whatever weapons could be bought on the open market.

        2. You have to remember that to a substantial portion of the American population, the 2A reads, in full, “the right of the people to keep and bear arms shall not be infringed”.

          If you start with that assumption, then it is of course obvious that the right applies directly to individuals and does not allow any sort of regulation.

          Maybe THIS is the year we can finally get rid of the ridiculous assertion that felons can be prevented from owning or using the weapon(s) of their choice. Once that’s done, we can work on getting it defined as essential as the right to counsel when charged with crimes, and start appointing firearms to people who cannot afford them.

      4. ” even though most of the Bill of Rights applies to individuals, the Second and Tenth specifically protect the states”

        You got that 50% correct.

    2. To answer your question, the 2nd amendment doesn’t give the government the right to draft citizens into the militia. That would be the militia clauses in the main body of the Constitution.

      1. I wonder why the Framers used “militia” to refer to something different in 2A than in the body of the Constitution?? And why in the 2A the word “state” refers to the country of USA and not to individual states that make up the United STATES of America…but then “sex” does include a dude that tucks his junk between his thighs so I guess it all makes sense. 😉

        1. “I wonder why the Framers used “militia” to refer to something different in 2A than in the body of the Constitution??”

          The answer is that they didn’t. Remember, it’s a right of the people, not the militia.

          1. Heller clearly states the militia in the 2A is referring to the unorganized militia which is different than the organized militia referred to in the body of the Constitution.

          2. ” it’s a right of the people, not the militia.”

            The 2A, alone out of the Bill of Rights, has a Preamble to explain why it is needed. In other words, the right exists if and only if the need for it exists. If the need for a well-regulated militia exists, then the people need firearms. However, if the need for a well-regulated militia is nil, then the people don’t need firearms and the right to keep them can be infringed.

            1. In other words, the right exists if and only if the need for it exists.

              Those are indeed “other words.” Other words with very different meanings.

              Your analysis requires the insertion of an implied “if” in the prefacing clause of the 2A. But it doesn’t say that. It declares that the need exists; it doesn’t condition something on the need existing.

              1. Every law that is passed with those long “Where As” justification clauses becomes void if their conditions aren’t met?

                1. Every law with “Where as” clauses constrains the judiciary to operate on the assumption the condition IS met, regardless of what their opinion of the matter might be. The condition is a matter of law, not judicial opinion.

              2. “Your analysis requires the insertion of an implied “if” in the prefacing clause of the 2A.”

                Indeed it does. It’s the first premise of a syllogism. If the first premise of a syllogism is false, then the conclusion is, too.

            2. So the need to serve as a check against a tyrannical government is up to the tyrannical government to establish? Okay, got it.

              1. The militias were in existence before America gained its independence. The Framers sought to strengthen the militias so a standing army would not be necessary…so that is why the Constitution includes the Militia Clauses and why the 2A reiterates their importance because under the AoC the militias were suboptimal and the Framers didn’t want a standing army for fear of tyranny.

                1. Other than the issue of whether “under the AoC the militias were suboptimal” – of which I am ignorant and on which you could be correct – on the above we agree.

                2. ” the Framers didn’t want a standing army for fear of tyranny.”

                  We have a standing army, but the tyrant is able to use other forces to oppose criticism. Homeland Security, apparently, has a high enough budget to allow deployment of agents in unmarked (rental) cars to seize citizens on the streets of an American city. the authors and ratifiers of the Bill or Rights thought they’d said that seizing people sans warrant was a no-no, but that only works if you restrict your hiring to people who have ever heard of the 4th amendment.

              2. “So the need to serve as a check against a tyrannical government is up to the tyrannical government to establish?”

                the 2A has nothing to do with serving as a check against government, tyrannical or otherwise, and never has. This is romantic fantasy.

                1. Except the 2A was drafted in response to the events at Lexington and Concord similar to how the 3A was drafted in response to abuses during that period. Did you miss the year the American Revolution was taught in school??

    3. The 10th Amendment explicitly refers to both state powers and individual rights.

      The 2nd amendment similarly refers to both a state’s security and a right.

      In light of the 10th Amendment’s structure, why would it be so Alice-in-Wonderland to interpret the phrase “A well-regulated Militia being necessary to thr security of a free State” as guaranteeing a state power to organize and regulate a militia? It doesn’t seem especially out of alignment with the text to interpret it that way. The phrase has to mean something. And guaranteeing both a state power and an individual right in one amendment is something that the 10th amendment also does.

      1. Bingo! But we do have a RKBA which emanates from the right to privacy and could have easily been developed by incorporating Cruikshank. Heller and McDonald are simply asinine but at least the outcome is correct—we have a RKBA for self defense in our homes. So as asinine as Heller is…Stevens’ strict constructionist Heller dissent is equally asinine. Stevens’ analysis in McDonald is outstanding but his transparent partisanship undermines the opinion in the end.

        1. Stevens analysis in McDonald is BS. He basically said the government can pick and choose which laws to enforce.

          Does anyone see any language in 14A which says the government can pick and choose?

          14A – No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

          1. He applies liberty interest analysis which isn’t that different than Kavanaugh’s “text and tradition” analysis. So pursuant Kavanaugh’s analysis handgun restrictions outside the home mostly pass constitutional muster pursuant the long and robust tradition of regulating handguns outside the home in even the most pro-2A states such as Texas.

            1. He applied the “liberty interest”
              then his dissent said that the right should not be incorporated under 14A – When you cut through the elegant wording, he basically said, the government can pick and choose which rights are ‘worthy” of incorporation.

              Note that Thomas’s concurring opinion on P&I cuts through the mangling of substantive due process in prior precedents.

              1. Stevens let us partisanship get the best of him…he should have found a liberty interest in RKBA in order to protect one’s home.

          2. ” the government can pick and choose which laws to enforce.

            Does anyone see any language in 14A which says the government can pick and choose? ”

            This is implied by sovereignty. However, the President is impelled by oath or affirmation to see that the laws are enforced.

            1. Under what theory is 4A or 5A incorporated / applied to the states under 14a but not 2A – Stevens logic was that the government can pick an choose which rights are “fundemental” and therefore pick and choose which rights are incorporated.

              1. Nope, Justice Thomas believes the Establishment Clause shouldn’t apply to the states.

      2. “well regulated” means the opposite of what you think it does — do not forget the Regulator movements in NC & SC. It was an individual right to regulate ones own affairs.

        1. So why was McDonald necessary??? Such a head scratcher. 😉

          1. Not sure of your point. Heller essentially limits the federal government, while McDonald limits state governments similarly. Prior to the adoption of the 14th Amdt, the Bill of Rights applied only to the federal govt. The 14th effectively “incorporated” much of the Bill of Rights, making them applicable to the states too. The key is that much but not all of the Bill of Rights were incorporated by the 14th. After Heller, the argument was that the individual right to keep and bear arms wasn’t applicable to the states, because it wasn’t incorporated by the 14th. McDonald said “nope”. The individual right to keep and bear arms was incorporated by the 14th, and does apply to the states.

            1. So precious…and so handsome.

              “Free state” = America and “militia” = pretty much everyone.

              So for America to be a free country then everyone must have the RKBA…so how can the 2A be limited to Americans in DC and federal territories?? Does that mean people in the states did not live in free polities?? Such a head scratcher. 😉

        2. Why would it be such an unnatural interpretation to think that “right of the people” refers to rights of the people, and “necessary to a free State” refers to the necessary powers, and hence the rights, of states?

          When the framers wanted to talk about the people, they used “the people.” When they wanted to talk about states, they used “state.” Seems pretty straightforward.

          It seems to twist the meaning of “well-regulated militia” to think of it as having some sort of philosophical meaning in terms of individual self-regulation, rather than interpeting “militia” in its ordinary plain meaning.

          1. So, let’s say for the purpose of argument it’s a state’s right rather than an individual right. And let’s assume it’s a good faith interpretation, i.e. not just intended to render the amendment meaningless. An interpretation that means there is something Congress may not do.

            What are your examples of federal laws or actions that would violate the collective right? Could you draw some bright line rules on what states are entitled to do, even if Congress doesn’t like it?

            1. The 2A is a federalism provision—so if Missouri has a law that says members of the state militia can keep machine guns in their home then the ATF can doing nothing about it and in fact Missouri state police could arrest ATF officers that attempted to confiscate machine guns in homes of MO militia members.

        3. “‘well regulated’ means the opposite of what you think it does”

          Or the opposite of what you think it does. It means (eek!) that the men in it follow the (lawful) orders of the officers appointed over them. a “well-regulated militia” is the opposite of a “mob”

          1. Bingo—anarchy is equally as bad as tyranny.

          2. One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge.

            “Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined,” says Rakove. “It didn’t mean ‘regulation’ in the sense that we use it now, in that it’s not about the regulatory state. There’s been nuance there. It means the militia was in an effective shape to fight.”

            In other words, it didn’t mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.
            https://constitutioncenter.org/images/uploads/news/CNN_Aug_11.pdf

            1. And I bet you also believe Jerry Falwell believed that the pool boy needed to get cleaning supplies stored in their hotel room to properly clean the pool.

              A pool pipe goes through your bedroom…give me 15 minutes to clean it. I’m a baaaaaad boy. 😉

              1. You’re deflecting because you don’t know what you’re talking about and can’t answer the responses in a serious way.

                You’re just a troll and a fool.

                1. Did you just learn that big word PeckerRR??

      3. why would it be so Alice-in-Wonderland to interpret the phrase “A well-regulated Militia being necessary to thr security of a free State” as guaranteeing a state power to organize and regulate a militia? It doesn’t seem especially out of alignment with the text to interpret it that way.

        But it does, because the phrase you’re referring to doesn’t establish/grant/recognize a right at all. It asserts the existence of a fact.

        It’s the second half of the 2A that declares the existence of a right. And what right does it declare? The right to keep and bear arms — not the right to organize a militia. And whose right does it recognize? The right of the people — not states.

        1. See above first……and then see below,

          deeez nuts!!

        2. The key attribute of a militia is that it is not subject to the orders of a governmental body until it agrees to submit to that body. The authorities may “call out the militia”, but the militia can respond “no”. A militia unit is distinguished by being composed of volunteers which have elected their own leaders, and authorized those leaders to submit the unit to a state’s military authority under a negotiated set of conditions. Thus you have militia units restricting themselves to a specific county, or to a time period like “until the harvest”, or “until the end of the year”.
          This is how the founders wanted the US military to exist; a small core of professional soldiers and commanders, augmented as required for larger conflicts. It assured popular support for any future conflicts.
          The ultimate “suppose they gave a war and nobody came?”

          1. Why do you think the unorganized militia failed in 1861 when tyranny reared its very ugly horse face??

            1. How so? Virtually all the regiments, on both sides, were in effect composed of what we now would call the unorganized militia. The Union Regular Army had a complement of less than 20,000 on April 12, 1861, even including those who departed for the Southern States. The Confederacy of course had _no_ Regular Army when it was formed.

              1. With respect to the CSA what differentiates the unorganized militia from the organized militia is the organized militia is state sanctioned and supplied with arms from either state militia stores or confiscated federal military weapons or whatever idiot would accept CSA Greybacks.

                1. I concur that the organized militia and unorganized militia, as _presently understood_, is differentiated as you describe.

                  The question is, as I mentioned in my reply to one of your above comments, whether the differentiation applies to the historical period of 160 years ago. Obviously this is also relevant to 70 years earlier when the 2A was adopted.

                  At both times the citizen-soldiers kept their own arms. While I was an in-depth student of the Civil War, you perhaps have been even more of one than me. Nevertheless, considering the decentralized nature of the Confederacy, I am highly-doubtful of its central government being the source of most of those arms; I understand it did confiscate Federal stores within its States, but the proportion thereof to the total used need not have been large.

      4. It’s a preamble, put in place to list WHY the rest of the amendment, including the right to keep firearms, is needed.

  8. The bottom line here, and it hasn’t changed since I took a long hard look at the major parties when jumping ship from the LP in the late 90’s, is that the Democratic party rejects both the 1st and 2nd amendments as meaningful limits on government. In fact, I’d be hard pressed to identify any right secured by the Bill of Rights that the Democratic party treats as genuinely binding.

    Should Kamala be elected, we can expect the Heller and McDonald decisions to be reversed, if not explicitly, by being qualified to the point where they don’t matter. I doubt with Roberts on the Court it would even require replacing anyone who was in the original majority. He’d simply decide that they weren’t worth defending.

    1. Funny how that never happend when Roberts was CJ and Biden’s boss was Obama, who hated not only guns and the constitution, but America and white people.

      1. One word: Scalia…

        1. How come you have no problem pronouncing Scalia but you can’t pronounce Kamala properly??? Such a head scratcher. 😉

          1. I’m impressed at your ability to determine whether people are pronouncing a name correctly by reading printed words. It’s almost supernatural.

            1. KA ma la, not ka MA la. I will use it in a sentence: KA ma la is trying to take my guns and force me to drive an electric car…I should have supported Republican senators forcing Trump to drop out of the 2020 race so Republicans could have had a better candidate. You know the only way Trump can win—start advocating for reparations for slavery. I guarantee you Trump would win if he started promoting reparations…otherwise he’s toast.

              1. ” You know the only way Trump can win”

                Shutting down the Post Offices?

                1. Grow up with such lame snarks. At least be clever.

                  1. If you have answer, just call it lame.

                    1. D’oh. If you have NO answer…

          2. I checked the spelling…

            1. You looking for a prize?

  9. Professor Volokh….Thank you for the informative post on Senator Harris. It is helpful for voters to understand what her positions are wrt gun rights and restrictions. As you say, SCOTUS decided that the legal positions she espoused were completely wrong.

    It is another helpful data point to guide voters decisions.

    1. ” As you say, SCOTUS decided that the legal positions she espoused were completely wrong.”

      Replace “espoused” with “supported” and you get to a statement which is correct.

  10. If the 2nd Amendment was written solely to protect the right to have another branch of the military, technically classified as a militia but generally indistinguishable from the regular army to exist as leftists bizarrely claim, I think they could have simply written ‘the right to have multiple armies’ or ‘the right for states to have their own armies shall not be infringed.’

    1. The body of the Constitution gives the states the power to appoint officers of their respective militias and we know in 1861 many federal military officers remained loyal to their respective state and not the federal military. So RE Lee’s actions show why the militia was necessary for a “free state” like Virginia when tyranny reared its ugly head in 1861.

      1. No, it gives the people the ability to BE the militia, over the objection of state officials — outside of any authority structure.

        1. Wow, that would have come in handy in 1861…I wonder why Davis organized an army when he had the unorganized militia to work with…such a head scratcher. 😉

        2. It definitely *didn’t* do that. Before the 14th amendment, there was no doubt that states were fully entitled to regulate the possession and use of arms.

    2. See above about the Regulator movement.

      1. See below—deez nuts.

    3. The difficulty here is that the Framers made a clear distinnction between a militia and an army. A militia is a group of ordinary citizens mustered and regulated by states to address emergencies. An army is a military body created and controlled by the federal government.

      You may think the Framers a group of crazy lefties for making this distinction. But they made it.

      1. Actually the militias were regulated by the federal government because they were suboptimal under the AoC. The key is the militia was loyal to the state even under federal control because the states appointed officers…so see RE Lee’s behavior in 1861 to see how important states appointing officers would have been in 1789.

        1. Keep making the stuff up.

          1. Lol, the Constitution contains Militia Clauses because the militias were suboptimal under the AoC…don’t quit your day job to become a Constitutional scholar. 😉

    4. The text of the Constitution contains provisions that attempt to limit the ability of the Congress to keep a standing army.

      1. Army appropriations can’t exceed two years. The Navy doesn’t have a limit. The Air Force is considered an army.

    5. I may be incorrect, but I thought at the time of the writing of the constitution there was no “regular” or standing army. Please correct me if that’s in error.

  11. Prof. Volokh, thanks for this handy data point. Perhaps you have seen the memes circulated on social media from Occupy Democrats and the like, along the lines of “not a single democrat wants open borders, to take your guns, etc. This brief from Kamala makes it easy to refute the point about guns.

    1. It’s pronounced ka ma la.

        1. No, ka ma la

            1. ka ma la…kamala. And her last name is pronounced harryass.

              1. Or was that hairyass?

                1. Great, I mispronounced her last name which must mean I’m a racist. KA ma la Hairyass…now I will just refer to her as Veep.

                  1. She should be cool with that.

      1. Why are you spamming the same goofy shit every time they include her name in a post?

        1. See below:

          deez nuts!!

    2. You know it’s totally possible to simultaneously think that the 2nd Amendment doesn’t provide for an individual right to bear arms, and still not desire to go and take away everyone’s guns, right?

      1. Sure. Rather like it’s possible to simultaneously think that segregated drinking fountains are permissible, and not want the black ones to be shitty. Not everything that’s possible is likely.

        1. But there’s an easy way to tell if someone wants to generally take guns out of the hands of private citizens–they’d make a policy proposal to do so.

          Extrapolating from “no individual right” to “gun confiscation” is basically the same as people on the left saying that it’s equivalent for a conservative being opposed to Bostock as wanting all LGBT people to be put in jail.

          1. It’s not that complicated: When you want to do something unpopular, you won’t be honest about what you’re doing, and you’ll make the first steps small.

            1. So you do want to put LGBT people in jail?

          2. Your distinction is correct. But except for isolated Democrats, confiscation is exactly what the bulk of the Democrat Party leadership is specifically proposing. They don’t have to use the specific word “confiscation” to mean and accomplish the same thing by their proposals.
            You are aware of what most of the candidates were saying during the debates and primaries, aren’t you?

            1. They keep saying they want to take guns away from bad people.

              Why do you assume they want YOURS? Are you a “bad people”?

              Meanwhile, the Republicans have been actively trying to take people’s votes away from them.

              1. We apparently have been reading different transcripts and reports.

      2. Yes, you are right. But it appears that Heels Up Harris is not one of those people.

        1. 2 Pump Trump supported Giuliani’s gun grabbing.

        2. How do you get that inference? The only thing that Professor Volokh establishes here is that: (a) she didn’t think that the second amendment provided an individual right to bear arms and (b) that was the legal consensus at the time. There’s no evidence at all that she’s interested in widespread gun confiscation.

          1. Maybe you should look at the Team D platform she is running on, jb.

            1. Okay, here’s the policy proposals from the section on gun violence:

              “Democrats will enact universal background checks, end online sales of guns and ammunition, close dangerous loopholes that currently allow stalkers, abusive partners, and some individuals
              convicted of assault or battery to buy and possess firearms, and adequately fund the federal background check system. We will close the “Charleston loophole” and prevent individuals who have been convicted of hate crimes from possessing firearms. Democrats will ban the manufacture and sale of assault weapons and high capacity magazines. We will incentivize states to enact licensing requirements for owning firearms and extreme risk protection order laws that allow courts to temporarily remove guns from the possession of those who are a danger to themselves or others. We will pass legislation requiring that guns be safely stored in homes. And Democrats believe that gun companies should be held responsible for their products, just like any other business, and will prioritize repealing the law that shields gun manufacturers from civil
              liability.”

              The only portion of that could be construed to confiscate guns is the part about incentivizing states to pass red flag laws. I’ve heard lots of Republicans in both Congress and at the sate/local levels support red flag laws. Would you characterize John Thune as wanting to take your guns away?

              1. Most Americans — especially educated, decent, modern Americans — support reasonable regulation of guns. It’s going to occur. Gun nuts — like anti-abortion zealots — are going to be one of the groups that pays a high price for hitching its political wagon to the current iteration of the right-wing electoral coalition. Younger Americans are increasingly hostile to Republican bigotry and backwardness. As those new voters replaced cranky old conservatives in our electorate, the consequences for gun and abortion absolutists will be dire — and, for American society, very nice!

                1. This purported hostility is why a disproportionate number of recent gun purchasers were women and people of color …

                  1. They want to be able to return fire.

          2. Keep making the stuff up. Not the legal consensus – the left wing legal consensus. Scholars, such as EV, believed differently, which is why his work is cited in Heller with approval, and the work of these other legal scholars is not. By the time Heller was decided, there was far from a consensus – at least because the grammatical argument for a communal right is strained, if not nonsensical. The individual right was always the logical construction, based on the wording of the amendment. These leftist legal scholars just didn’t want it to be an individual right, so stood on their heads coming up with an interpretation, that fit their preferred result.

            Apparently, EV got into the area of 2A jurisprudence, assuming a community right, but the more he dug through the historical documents, the more obvious it became to him that it was intended to be an individual right. That historical work has never been effectively challenged, and was very much in evidence before it was picked up by the Heller Court.

            1. I’m just going to quote from EV’s post:

              ‘Thus, Harris’s view in that case was thus that the “collective rights” view of the Second Amendment was correct, since that was the “settled Second Amendment principle[]” in lower federal courts at the time.’

              I guess your quibble is with the words “legal consensus”? My point was that Harris’s view was pretty mainstream and entirely in line with legal precedent at that time. We can call it “settled principle in the lower federal” courts like EV did if that makes you happy; it doesn’t really change either the intent or meaning of what I wrote above in any way.

              1. I have known pro-gun people that have moved to cities like NYC and SF and DC and those people always kept a gun their respective apartments and didn’t register them. They had concealed weapons permits but they never carried a concealed weapon outside the home in those cities. The vast majority of Americans believed Americans had a right to keep a gun in the home for self defense prior to Heller. Btw, Stevens dissent was so asinine because generally liberals are expanding liberties but with self defense and guns liberals finally found a liberty they wanted to restrict. The only thing similar might be cigarettes…but cigarettes are so stupid that I would bet Republicans feel pretty dumb about defending them all those years.

                1. ” Stevens dissent was so asinine because generally liberals are expanding liberties but with self defense and guns liberals finally found a liberty they wanted to restrict.”

                  Every right is or can be an infringement of somebody else’s rights. This is usually illustrated by pointing out that the right to swing your arms freely ends at the tip of my nose. The liberals who choose gun control are choosing the right to go about one’s business without having to worry about some idiot who can’t or won’t handle his weapon(s) safely over the right to BE some idiot who can’t or won’t handle his weapon(s) safely.

            2. ” The individual right was always the logical construction, based on the wording of the amendment.”

              If you ignore everything before the comma, and read the amendment as if it reads “The right of the people to keep and bear arms shall not be infringed.”
              But the other half of the amendment WAS ratified.

          3. She supported gun confiscation when she was running for the nomination.

    3. Of course, this is a problem because the Vice President can take action to seize your weapons. It’s a little-known provision of the XXVth amendment.

      1. Ah., we’ll finally get to see the 25th in use next year to rid up of a demented POTUS

        1. He passed the cognitive tests.

  12. Where you stand depends on where you sit. It makes sense that District Attorneys would sign on to an amicus brief that supports the constitutionality of measures that combat crime.

    1. Racial Profiling combated crime.

      1. But Trump says Giuliani and the 1994 Crime Bill led to black men being unfairly imprisoned…I’m so confused.

        1. Yes, it’s very obvious that you are confused.

          1. 2 Pump Trump supported Giuliani’s gun grabbing in the 1990s…my head hurts.

      2. To the extent that that is true, I would expect DAs to defend the constitutionality of racial profiling too.

        1. Racial profiling IS crime.

    2. Could you cite evidence that gun control laws in the USA have lowered crime rates? Shouldn’t there be proof that a law is effective before an enumerated right is infringed?

      1. How? It’s never been tried.

        More generally, I don’t think you can necessarily always ask for evidence that shows a law will be effective before it can be introduced, because in some circumstances that will get you some kind of weird legal chicken & egg problem. In some circumstances, you’re going to have to settle for some kind of plausible speculation/prediction.

  13. The Left is lying when they say they don’t want your guns. They do. They want you unarmed. They want you unable to protect yourself, your property, and your family. They want the mob to be able to do whatever they want to you and your home. Just look at what is going on in WI or any other BLM mob owned city. That is their end game.

    1. Luv to be a mustache-twirling villain on the left who wants to kill you all.

      *bwahahaha*

      1. I think of you more like Wiley Coyote trying to deploy the most recent Acme solution (argument)…….Somehow it always falls flat and never works out for you.

        1. The Republican Party has been playing the role of Wile E. Coyote throughout our lifetimes, Jimmy. The liberal-libertarian mainstream shapes American progress, and does so against the preferences and efforts of conservatives. The next 20 years of American improvement is likely to be even more pleasant for the mainstream, and unpleasant for the right-wingers, than the most recent batch of progress.

          Clingers get to whine about all of this damned progress as much as they wish, though!

          1. Do you just copy and paste this stuff…?

            1. Just like you copy and paste your complaints about them.

  14. Before the Heller decision, I thought it most likely that the 2nd amendment did protect an individual right. But Justice Stevens dissent to the contrary was so much better reasoned from a grammatical, legal, and historical context than Justice Scalia’s opinion for the Court that it changed my mind.

    I respect folks who think otherwise, recognizing the issue is close. I have a difficult time, however, with people who accuse folks like me of disrespecting the Constitution. That’s simply wrong.

    1. But Stevens isn’t a strict constructionist. Read Stevens’ McDonald dissent and I guarantee you will believe we have a right to keep guns in the home for self defense that is fundamental to LIBERTY, i.e., the right to privacy.

      1. “I guarantee you will believe we have a right to keep guns in the home for self defense that is fundamental to LIBERTY, i.e., the right to privacy.”

        How did that work out for Breonna Taylor?

        1. Actually Al Sharpton advocated and got a pardon for a black man found guilty on gun charges while defending his home in a two idiots cross paths incident in which a black adult killed a white teen…I would bet 90% of Americans support the outcome of Heller which is keeping a gun at home for self defense.

          1. this American has full support for people who handle their weapons safely and responsibly having whatever the hell they want. I favor restricting the people who can’t and regulating the ones who won’t. Before responding, which category are YOU in?

            1. I support more guns in the hands of law abiding citizens. That said Giuliani believes gun control regulations were a major factor in reducing violent crime in NYC so I do support some cities attempting gun control…but it generally fails.

    2. Back in the day I did read both decisions in Heller and even chased many of the footnotes. My conclusion was based upon what I considered to be a fair read of the 2nd Amendment was that the individual rights argument, in context of the 21st century, was probably the most conducive with modern textual interpretation of the Constitution.

      That said, I don’t think it was understood at the adoption of the Bill of Rights to ever protect a right for a citizen in a state to own a firearm. But you can’t ignore that more than 100 years of case law has made that an outdated interpretation of the federal Bill of Rights and siloing that argument into just one right is pretty disingenuous just to win that particular “battle.”

      But, the Supreme Court doesn’t really seem interested in telling the States what to do with firearm regulation so the impact of Heller is probably going to be similar to many other “rights” the court has declared and then never really enforced.

      1. The thing is, the Constitution describes the required procedures needed to impinge your individual rights. Due process is required before, in most cases a warrant must be obtained, and compensation afterwards for taking your property.

      2. Perhaps you should check the Militia Act of 1792. Written while most of the same legislators were still in Congress, it advocated that militia members would bring their personally owned firearms & equipment. It also dictated all citizens between 17-45 were considered to be part of the militia with some exceptions.

        1. They hadn’t gotten around to extending citizenship to everybody yet.

  15. Camel Toe Harris was a defendant along with the California Governor, in his official capacity, in my California Open Carry lawsuit from November 30, 2011, until she resigned from the office of California Attorney General in 2017.

    One cannot seriously claim that in all of the documents filed by her attorney in those years, in which her name appeared on the cover sheet, that she did not know what those documents said.

    Kamala Harris said that the Heller decision was wrongly decided. As California Attorney General, it was her position that there is no individual right to keep or bear arms (any arms, not just handguns) in the curtilage of our homes, on our private residential property (the Heller decision struck down laws that applied to the home and to private property), in or on or motor vehicles regardless of whether or not the motor vehicle is being used as a temporary or permanent residence, and, of course, it was her position that there is no right to keep or bear arms in non-sensitive public places.

    Her “defense” of the racial motiviation for California enacting its 1967 ban on carrying loaded firearms outside of the interior of one’s home (a ban that applies to the curtilage of our homes) is that it did not violate the Second Amendment because the Second Amendment does not apply to Blacks because Blacks did not have a right to keep and bear arms when the Second Amendment was enacted in 1791. Indeed, her argument was that the Second Amendment was enacted at the behest of runaway slave hunters.

    Of course, anyone who has ever read the government’s filings in my California Open Carry lawsuit would know this.

    But lawyers and reporters are lazy, and pathological liars, they see no need to trouble themselves with facts, let alone trouble themselves with the truth.

    My website https://CaliforniaOpenCarry.com

    1. I wouldn’t be so dismissive of Harris’ knowledge of the positions which were taken in a major constitutional rights lawsuit. It is doubtful that she read the individual filings, but I guarantee you that as part of her office’s official operating duties she was briefed on their positions, probably read and signed off on internal policy memos and litigation strategies, and probably at least had to approve certain aspects of litigation like petitions for en banc hearings or cert.

      These political appointments are not completely oblivious to the documents coming out of the career sections of their offices. If their position was the Second Amendment is a collective right and there is no constitutional right to own a firearm even in one’s house (even though the Supreme Court has said owning porn in your house is OK) that position was approved by her at some level and she was very aware it was being made.

      1. ” there is no constitutional right to own a firearm even in one’s house (even though the Supreme Court has said owning porn in your house is OK)”

        How the hell are these two things related? You figure a right to have porn in your house means they’ve endorsed the notion that shooting off in one’s house is all bueno?

        1. Both were made illegal to own in ones home. In one case the Supreme Court ruled that you have a right to privacy to own the one thing (despite legislative findings to the very negative effects of pornography) so it is not a far grasp to suggest that the right to privacy extends to other things which the government wants to regulate that can also live in your house.

          1. Correct me if I’m wrong, but I had thought that Stanley v. Georgia, which said one has a right to possess porn in your own home, was based on First Amendment concerns, and not the right of privacy. The First Amendment has nothing to do with the right to possess firearms in ones home. Thus, the fact that you can possess porn in your home would seem to have no bearing on whether you can possess a gun in your home.

            1. Where exactly is the “right of privacy” explicitly in the BofR.
              Please quote the clause, before you hang all your hope on it.

              While you are at it please explain what a “resonable expectation of privacy” will mean in the age of AI.

              1. “Where exactly is the “right of privacy” explicitly in the BofR.
                Please quote the clause, before you hang all your hope on it.”

                Somebody didn’t notice that they were responding to a post attacking the right of privacy. Oops.

                Anyways you can find the right of privacy described in the Fourth amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

    2. “Camel Toe Harris”

      How is the civility project coming along, Prof. Volokh?

      Do you still try to claim you did not engage in viewpoint-driven discrimination when you repeatedly censored liberals and libertarians while disregarding the comments of your fellow conservatives?

      Or perhaps you wish to try to explain why you censored “sl@ack-j@w” and “c*p succ*r” but not “Camel Toe Harris.” Good luck with that.

      1. AK if Volokh cared so much about civility he would have banned you years ago. All you do is denigrate conservatives (“clingers”) and religious people (“believing in superstition”.)

        1. Truth is an absolute defense to libel. why not to name-calling, as well?

        2. He banned Artie Ray years ago, for making fun of conservatives.

          He censored me more recently, repeatedly, for claimed affronts to the Volokh Conspiracy’s civility standards.

          Since then, this blog has repeatedly featured comments describing placing liberals face-down in landfills, shooting liberals in the face as they opened front doors, putting liberals in Zyklon showers, and the like. Comments involving vile racial slurs, misogynistic comments, and the like are routinely enabled to remain.

          The plain inference is that conservatives may comment without censorship while those who are not conservatives are censored, assertedly for ‘incivility’ and ‘low signal to noise content.”

          This is the Conspirators’ playground and they set the rules. Comments on the viewpoint-driven censorship, however, seem reasonable, particularly in the context of the proprietor’s relatively common claim to be a champion of free speech and an opponent of censorship.

          1. No, the plain inference is that, offensive as those conservative commenters are, you somehow manage to be worse.

            It’s remarkable how consistently you manage it, too. You are far and away the most bigoted, least tolerant commenter in these threads.

            1. Bigots tend not to like my comments.

              I am content.

    3. “Her “defense” of the racial motiviation for California enacting its 1967 ban on carrying loaded firearms outside of the interior of one’s home (a ban that applies to the curtilage of our homes) is that it did not violate the Second Amendment because the Second Amendment does not apply to Blacks because Blacks did not have a right to keep and bear arms when the Second Amendment was enacted in 1791.”

      Uhh. Gonna need a cite for that one, buddy.

      1. jb – It is in one of her memoranda of points and authorities. You are going to have to get off your lazy ass and read them. Her briefs are a matter of public record that everyone is free to access. Your laziness or incomptence in knowing where to find her briefs, does not constitute a problem on my part.

        1. ” a problem on my part.”

          The fact that YOU have an obsessive compulsion to read all her papers does not imply that anyone else does.

          1. James Pollock – I am the plaintiff who sued her. Of course I read everything she filed in my lawsuit.

            Any other dumb questions?

            1. Can you read?

        2. I’m pretty sure that she never wrote anything even vaguely suggesting what you wrote, so I’m not going to dig through documents to try to prove a negative.

          That’s not really how arguments work, anyway: if you’re going to try to make a claim, you should be able to substantiate it, especially when your claim is well outside the Overton Window.

          1. jb – My claims are substantiated where it counts, in my legal filings. Your laziness/incompetence does not erase what appeared in her filings in my California Open Carry lawsuit.

            Neither does your belief erase anything.

            1. You sound like a sore loser.

              1. Another moronic reply signifying nothing. Try for some substance next time.

              2. Rev. Arthur L. Kirkland – And yet the State of California conceded 3 of my 7 issues raised in my appeal, and unless my three-judge panel wants to create intra-circuit splits, I win 3 more of my 7 issues because those issues have already been decided by the 9th circuit court of appeals in binding, published opinions.

                That leaves one issue, whether or not I have a right to keep and bear arms under the Second or Fourteenth Amendments, for my three-judge panel to decide.

                In Peruta v. San Diego en banc, the State of California conceded that the right to keep and bear arms (openly) extends beyond the curtilage of my home. As the prevailing party, in that case, Judicial Estoppel prohibits the State of California from now claiming it doesn’t. I suspect that the State’s current position in my appeal, that the Heller decision was wrongly decided, falls within the same doctrine, but none of the judges on my panel are going to say the Heller decision was wrongly decided so it really doesn’t matter.

                In any event, my three-judge panel is going to be bound by whatever the en banc panel in Young v. Hawaii decides, and I have no say in that decision.

                You really should stop projecting your inadequacies, it makes you look like the loser.

  16. And yet Reason continues to mostly support the Democrats.

    1. Perhaps they’ve been more Reasonable, of late.

  17. You’ve often given slanted histories of Second Amendment jurisprudence but I don’t think you’ve actually lied about it until now.

    1. captcrisis – Everything I had ever written about Second Amendment jurisprudence in my lawsuit had a citation attached to it. If my histories were “slanted” then the State of California was free to straighten them out. Instead, the State of California has taken the position that the Heller decision was wrongly decided and that the court of appeals must conduct an historical analysis, as per the McDonald decision, and come to the conclusion that the Heller decision was wrongly decided.

      Not only is that in the state’s appellate brief, that is what the state’s attorney said in oral argument.

      Your looking at Second Amendment jurisprudence with two left eyes does not make my citations slanted. It means you don’t like what the jurisprudence says.

      1. It is simply not correct to say that the collective rights view was the “settled view of the lower federal courts”. You surely know about U.S. v. Miller (1939) and Lewis v. United States (1980), not only as decisions in themselves but as the support for the many times the “lower” federal courts held as they did. The Court rarely touched on the 2A because the collective rights view was so clearly the law that no one bother to litigate it, that is until the gun industry started funding legal “scholarship” in the 1970’s.

        It is no answer to say that Miller didn’t really attach the Second Amendment to militias. You can play that game with all kinds of supposedly precedential S.Ct. decisions. (For example — did you know that Marbury v. Madison did not really establish the power of judicial review because everything Marshall said about it was dicta? He ended up holding that the Court didn’t have jurisdiction.) And then there is the plain meaning of the 2A, of course.

        1. Cruikshank is clear that all Americans have the RKBA but it doesn’t come from the 2A and wow the Supreme Court can’t do anything about the violations of the rights of the parties involved. So in Heller the only thing necessary was a discussion of the right to privacy and incorporation and Cruikshank could have incorporated the RKBA to individual Americans. Scalia’s Heller opinion is an unnecessary Rube Goldberg contraption because Scalia and the conservative justices didn’t want to strengthen the right to privacy by including the RKBA under that right. So Stevens realized his mistake in his Heller dissent and attempted a little clean up in his much superior McDonald dissent.

        2. captcrisis – You are replying to the wrong person. I never said that the collective rights view was the settled view of the lower federal courts. The collective rights view, if you define the “collective right” as being limited to militia’s, was a minority view in the 19th-century.

          The late 19th-century SCOTUS view was that the 2nd Amendment (like the 4th Amendment) did not apply to the states.

          Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER joined, said in the very first paragraph of his dissent, “Surely it (the Second Amendment) protects a right that can be enforced by individuals.”

          I don’t know of any collective right in the Federal Constitution, but if there is one then how would have individual have standing to enforce a collective right.

          Miller held that only weapons of war are protected by the Second Amendment, a view favored by some 19th-century cases but not the ones cited in the Heller decision. According to the Heller decision, the Miller decision only means that there are some (unspecified) arms that are not protected by the Second Amendment.

          Justice Scalia was of the opinion that only arms that could be carried by a person are arms that are protected by the Second Amendment.

          You aren’t going to find that opinion shared by any 19th-century court decision. You will find that some 19th-century cases held that, like Miller, the only arms protected by the Second Amendment are weapons of war. These arms included cannons, which are not bearable arms in the sense of capable of being carried by an individual but excluded firearms that are easily and ordinarily carried concealed because such weapons are not born as arms.

          1. Sure it is a right that can be enforced by individuals — to be a member of a militia.

            1. All citizens are automatically members of the unorganized militia. See the Militia act of 1903 as well as most state’s individual militia acts.

          2. Justice Scalia was of the opinion that only arms that could be carried by a person are arms that are protected by the Second Amendment.
            Was the distinction between arms and ordnance significant at the time of ratification?

            1. Rat on a train – Early in the history of the United States Navy, it created a catalog of ships based on the number of cannons the ship bore. Merchant ships, for example, were expected to provide for their own cannons. Nobody would say that a ship armed with cannon wasn’t bearing arms because that is exactly how they were cataloged. Nor would anybody claim that cannons are arms that an individual would carry on his person into battle.

              I do not know where Justice Scalia got the notion that the Second Amendment protects only arms that can be carried by an individual. It would have been nice if he had provided a citation or two in Heller, but he didn’t.

              There is an unattributed allusion in Heller to an early 20th-century state supreme court decision (“It may be objected that if weapons that are most useful in military service…”) but that decision held, as did earlier 19th-century case law, that firearms that are easily and ordinarily carried concealed may be banned.

              Scalia considered himself more of a textualist than he did an originalist. Perhaps his textualist interpretation of “bear” excluded arms that could not be carried by an individual because of Justice Ginsburg’s definition from her dissent that was cited in Heller. I don’t know.

              Likewise, the Heller decision says that the Second Amendment, which is a codification of a pre-existing right, does not protect dangerous and unusual weapons. If 1689 is the year from which the analysis starts then body armor was considered by the English to be “dangerous and unusual” but those with a right to bear arms (protestants) were allowed to keep body armor in their homes and to wear body armor in public in order to stop street fights and to quash riots.

              The ban on carrying certain types of weapons in public in the 19th-century, such as brass knuckles (a vestigial part of body armor) or handguns that were easily concealed, did not extend to a ban on possessing them in the home, so long as they were not concealed.

              The closest thing to ordnance at the time would have been weapons, like Trebuchet and siege towers. Leonardo DaVinci promoted himself as a designer of “dangerous and unusual” weapons and cited both as an example.

              But that was medieval, continental Europe. To the English, body armor (but not privy coats of mail), crossbows, and lancegays (pointy sticks with a ribbon attached) were “dangerous and unusual” weapons. Why? I don’t know. To Chaucer, a lancegay was a comedic, literary device. To Richard II, a lancegay was a dangerous and unusual weapon. Why? I don’t know.

              There were a couple of 19th-century cases which upheld convictions for concealed carry (or even just concealment of a pistol) in the home. That makes one thing Justice Scalia got right in Heller is that concealed carry is not protected by the Second Amendment.

              Concealed carry was not protected by the English Bill of Rights, and the prohibitions on concealed carry under English law extend back as far as the year ca 1260.

              And yet to this day, the lawyers for the so-called gun-rights groups (e.g., NRA, and SAF) and so-called Conservative organizations (e.g., Federalist Society and Heritage Foundation) claim that the Heller decision said that Open Carry (the right Heller said was guaranteed by the Constitution and perfectly captures the meaning of the right to keep and bear arms) can be banned in favor of concealed carry.

              The Heller decision did not say that and for that to be true then there can be no right to bear rifles, shotguns, or handguns except for those handguns which are carried concealed and carried with a government-issued permission slip, that is according to these lawyers (e.g., Clement and Gura). Only a lawyer, or someone tripping on LSD, could read the Heller decision to say that.

              There are many things that law professors and legal reporters could, and should, ask the surviving justices about the Heller decision.

              But they won’t.

              All we have is me on one side in a lawsuit whose Second Amendment argument is, and always has been, that the Heller and McDonald decisions mean exactly what they say, and not the opposite, as all of the concealed carry lawsuits claimed. And on the other side, we have the State of California that argues the Heller decision was wrongly decided and argues that the McDonald decision compels the 9th circuit court of appeals to conduct its own historical analysis and conclude that the Heller decision was wrongly decided.

              Why was the Heller decision wrongly decided you might ask. Because, according to the State of California, nobody carried weapons in public in 1791 (for any reason) because the mere sight of a weapon was in and of itself terrifying to the American people, and prohibited by the 1328 English Statute of Northampton.

              My tenth year of litigation begins on November 30th.

  18. Kamala Harris has nothing but contempt for the very concept of civil rights.

  19. Where I get really confused is that any originalist interpretation of the first amendment runs into the fact that a distinction between a ‘collective right’ (which could be exercised and regulated by the states) and an ‘individual right’ was entirely meaningless when the first amendment was drafted. The first amendment only applied to the federal government and so the distinction had no bearing on the amendment’s operation.

    1. That’s what is so strange about the 2A—it was drafted as an individual right and yet the Framers apparently forgot to tell everyone that it applied to everyone in America…or at least every adult white male…shhhhh, our Founding Fathers (or alternatively “limp dick slave masters“) were white supremacists laser focused on perpetuating slavery. And the white man passed gun control measures to disarm the Black man and empower the DemoKKKrats!

      NO JUSTICE
      NO PEACE!

      1. Of course your premise is easily dismissed due to the strong ‘right to keep & bear arms’ provisions included in the constitutions of most northern states, which had almost no slavery.

        1. Wow, you disagree with Justice Thomas…that makes you RAAAAAAAAAACIST!!!!!!!!

      2. Never before have I seen anyone so clueless on the BoR and incorporation under 14A

      3. “and yet the Framers apparently forgot to tell everyone that it applied to everyone in America”

        More like, you’re counting on people here not actually being acquainted with what the Framers actually had told people.

        Now, I’ll grant you that, when Jefferson wrote this:

        “The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”

        he didn’t really have his slaves in mind. Which is why his draft for the Virginia constitution read, “No free man shall ever be debarred the use of arms.”

        But, of course, some of the Framers were abolitionists, not slave owners.

        But there’s no question at all it was an individual right: They never used the term “right” to describe anything else.

        It’s no accident that Taney, when writing on why blacks couldn’t be citizens, (Even though they had been!) included this parade of horribles:

        “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

        It has never been anything but an individual right.

        1. So why was McDonald necessary?? And why did the justices write in Cruikshank that the BoR didn’t apply to state governments?? Such a head scratcher. 😉

  20. Hello all, first time long time.

    If I am reading this right, Harris was acting as a lawyer, and she urged the Supreme Court to continue to adopt the view that this article says was the view of the “great majority of federal courts (including the Ninth Circuit, which covered Harris’s jurisdiction, San Francisco)”. In other words – the view that appeared to be the correct one as a matter of law, based on the weight of precedent at the time.

    Is that not right? If it is right, I am skeptical that one can draw much from her signature on the brief, or why there is so much criticism of her personally for signing it. Whether she thinks Heller was decided wrongly is a different matter (maybe she does).

    1. It is impolite to disillusion people of their chosen narratives. Kamala Harris civil rights hater, Kamala Harris gun grabber.

  21. Kamala Chameleon? Which way is the political wind blowing and how can I make the most of it?

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