Today in Supreme Court History: December 3, 1996

12/3/1996: Printz v. U.S. argued.

Comments

[Brett Bellmore]

Non-paywall version.

This was the case where, if the Supreme court had been treating the RKBA as an actual right, all this background check nonsense could have been stopped at the beginning. The district courts had struck the background check down as unconstitutional, then the (9th) circuit reversed. The Supreme court found the check itself constitutional, but that mandating that state officers do it contrary to anti-commandeering principles.

Thomas would have struck the whole thing down as a violation of the 2nd amendment, among other constitutional provisions.

By the way, this case has relevance to the discussion of "Hendiadys"; "e) Contrary to the contention of JUSTICE STEVENS' dissent, the Brady Act's direction of the actions of state executive officials is not constitutionally valid under Art. I, § 8, as a law "necessary and proper" to the execution of Congress's Commerce Clause power to regulate handgun sales. Where, as here, a law violates the state sovereignty principle, it is not a law "proper for carrying into Execution" delegated."

The Court treated "necessary and proper" as not being a Hendiadys, the "necessary" and the "proper" requirements being independent.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

So much of what government does is an attempt to not offend somebody, instead of trying to do what's right. Once the non-offensive conduct is spilled on the rug, stare decisis prevents cleaning it up, and everybody stumbles around the stain as if it isn't there, a constant reminder of past drunken spills, until other circumstances force yet another detour.

Eventually the entire rug will be threadbare from so many devious detours.

[Sarcastr0]

This facile understanding of rights that some 2A folks have is not doing you any favors.

There are reams of jurisprudence on every other Amendment in the Bill of Rights (well...not the 3rd). Do you think that's because they have the easy bright lines you advocate for the 2nd to have? No - it's because rights are not pure theoretical ideals and have contours based on practical reality.
The 2nd is not and cannot be different.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

This facile understanding of "shall make no law" and "shall not be infringed" is not doing anybody favors except you totalitarians.

The day you statists admit you hanker for rule by (your) men instead of semi-objective laws will be the day your hypocrisy melts your brains.

[Sarcastr0]

Totalitarians that seem to include the entire judiciary throughout American history.

When your ideals require the condemnation of vast swaths of your countrymen past and present as totalitarians, maybe that says something about your ideals, eh?

Also a sign you've got the ideologues disease - when you need to tell those who disagree with you what they really think and also how bad and dumb it is.

You're not interfacing with reality or humans, but letting your worldview author both. Have some humility.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

When government defines its own limits, it is not limited. You statists are so far down the "Everything for the State, nothing but the State" path that life without the State in control is inconceivable. Anyone in favor of individual rights is simply a lunatic and not worth even listening to, let alone trying to understand.

[Sarcastr0]

Saying that all judges are statists is...a take.

When government defines its own limits, it is not limited
Clearly untrue. See, for instance the constitutional convention. Or any number of constitutional amendments. Internal controls are a thing that exists and exists successfully in countless institutions, government included.

I am in favor of individual rights; disagreeing with you doesn't mean I hate rights.
I recognize that a discussion about the contours of these rights must be nuanced. See: time place and manner restrictions on speech, or exceptions to the warrant requirement, or state establishment of religion.

[Brett Bellmore]

"Saying that all judges are statists is…a take."

Seems to me it's almost a tautology; You're not going to get many people who aren't statists looking for jobs with the state.

[Krychek_2]

Congress "shall make no law . . . prohibiting the free exercise" of religion, but that doesn't mean you can hijack a plane and fly it into a building just because your religion tells you to. Other people have rights too.

[Brett Bellmore]

But when was the last time you had to undergo any sort of background check, or licensing, in order to attend mass, or buy a printer and paper?

The key difference between regulation of gun ownership, and regulation of other activities that implicate civil rights, is that the normal approach is to assume that the exercise of the civil liberty will be towards lawful ends, and to just directly prohibit the harmful conduct.

Whereas, when it comes to guns, (Where all the harmful conduct has been illegal from the start!) suddenly this presumption of lawful intent goes away. And regulations are permitted to restrict lawful activities on the premise that they'll impede harmful uses.

So, it's proposed to cap the legal magazine capacity of guns, on the theory that this will inconvenience mass murderers, and never mind that almost everybody buying the large magazines are using them to put holes in paper targets.

While nobody caps the gas tank capacity of cars on the theory that police chases would be more effective if the people being chased had to stop to gas up every 50 miles.

If all gun control laws did was prohibit the commission of crimes using guns, who'd object to them? They'd already be redundant. All the things you can do with guns to harm other people are already crimes!

[Dilan Esper]

But when was the last time you had to undergo any sort of background check, or licensing, in order to attend mass, or buy a printer and paper?

Well the First Amendment doesn't say that the purpose of free speech is to ensure the defense of the government through the means of a well regulated press or a well regulated church.

[Sarcastr0]

Brett, different rights have different contours. This is not a plot against guns. You don't need a warrant to speak either.

the normal approach is to assume that the exercise of the civil liberty will be towards lawful ends, and to just directly prohibit the harmful conduct....it’s proposed to cap the legal magazine capacity of guns, on the theory that this will inconvenience mass murderers, and never mind that almost everybody buying the large magazines are using them to put holes in paper targets
This isn't correct. Time place and manner restrictions are a ban on the loud and respectful alike. So, too forum-based restrictions. And the 4A applies to the innocent and criminal.

[Brett Bellmore]

There's not only a plot against guns, it's not even a secret plot, any more than the temperance movement was secretive about wanting to stop people from drinking.

Sure, you can point to laws concerning guns that are reasonable, such as my not being able to have a target range in my suburban backyard. And I will frankly say there are a lot of reasonable gun laws, I've given examples of them in the past myself. These are laws that ameliorate harms directly related to the regulated conduct, such as noise pollution, or require that guns not be unusually subject to malfunction, such as firing if dropped.

And I can point to laws concerning guns that are starkly unreasonable, such as restrictions on protective features such as suppressors ,muzzle guards, or limiting magazine capacity to far below normal capacities.

Can you admit that there are a fair number of unreasonable gun laws, thanks to people who think gun ownership shouldn't be a right?

[Dilan Esper]

There are definitely unreasonable gun laws (I always point back to the Clinton era assault weapons ban, which, rather than targeting guns that ARE dangerous, targeted guns that LOOK dangerous). And there are definitely people who think gun ownership shouldn't be right. So what? There are also people who don't think sex discrimination should be in the 14th Amendment. That doesn't mean we should respond to them by being absolutists and declaring separate bathrooms unconstitutional.

You need to understand that there are tens of thousands of gun deaths every year. This makes guns a public policy issue. (And don't bring up abortion- people don't agree with you about whether embryos have a right to life.) If tens of thousands of people were being killed every year because the Fourth Amendment was making it difficult to catch criminals, you bet there would be people calling for limitations on Fourth Amendment rights. And yes, there are people on the extremes who think the correct approach is to curtail your Second Amendment rights.

But that's not an excuse for you to adopt dangerous, dishonest, ahistorical, extremist positions. You are responsible for the positions you take- not your opponents. And "background checks are an unconstitutional abridgment of Second Amendment rights" is a dangerous, dishonest, ahistorical, extremist position.

[Bob from Ohio]

"targeting guns that ARE dangerous"

Interesting. Which guns are not dangerous?

[Dilan Esper]

That takes a line out of context. The point is, some guns are more dangerous than others for particular reasons, and the 1994 AWB purported to regulate them, but used a terrible definition of an "assault weapon".

[Sarcastr0]

You've completely switched your goalposts from how the 2A jurisprudential paradigm is completely different from all other rights to some people don't like the 2A as currently applied.

Again, 2A is not special in terms of laws being passed that disagree with the current jurisprudence. That's literally every right, from speech restrictions to abortion restrictions to all sorts of stuff.

[Brett Bellmore]

The 2nd amendment judicial paradigm is largely different from other rights, because so many people, especially judges, don't like the 2nd amendment, and would prefer to 'interpret' it in a manner designed to render it moot.

It is quite common for localities to enact laws that violate enumerated rights. What's unusual is their being upheld anyway. And for the Supreme court to be indifferent to this, even when there are sustained circuit splits.

[Krychek_2]

My point is that there is no such thing as an absolute right, because sooner or later it bumps up against somebody else's right. And my primary dispute with what I call the Second Amendment absolutists is their assumption that gun owners are the *only* people with any rights; that no matter how much damage is done, the only important thing is that nobody stand in the way of them being able to own enough firepower to kill 20 school kids.

So as a thought experiment, suppose I actually wanted to kill 20 school kids. So let's draw a timeline for what happens next. In more or less the following order, the following events will occur:

I decide to shoot up a school.
I go on line and do basic research on which school I should shoot up
I go on line and do basic research on what would be the best kind of weapons to use.
I drive past the school a few times to scope the place out.
I buy up the necessary military grade weapons and ammunition.
I do a practice run somewhere in the wilderness.
I drive to the school.
I find a parking place.
I enter the school.
I start shooting.

Now, here's the question: At which point on that time line does the state have the right to intervene? Reasonable minds may differ, but that's our real quibble. I'm willing to allow intervention at an earlier step than Brett is. And I really don't see it as a threat to mom, freedom and apple pie to allow an earlier intervention than Brett would.

[Brett Bellmore]

"My point is that there is no such thing as an absolute right, because sooner or later it bumps up against somebody else’s right"

And my point is that civil liberties, except the 2nd amendment, are typically not significantly regulated short of where that bump happens.

[Dilan Esper]

Sure they are. For instance, public employees lose their First Amendment rights far short of the point where it actually interferes with someone else's legal rights. Draconian punishments are upheld under the Eighth Amendment even though nobody else's rights are implicated. Etc.

[Sarcastr0]

That has more to do with your extraordinarily broad understanding of the 2A's permissible regulations versus the other Amendments.

[Bob from Ohio]

"military grade weapons"

You can't buy those. No army in the world uses any weapon commonly for sale in the US.

Even the older automatics you can buy after paying a hefty tax haven't been "military grade" for 50 years.

[Brett Bellmore]

All this word salad of yours doesn't advance the cause of requiring a background check to exercise a civil liberty one inch.

Nor does it erase Thomas' point that the sales in question were intra-state, and so beyond the legitimate reach of the interstate commerce clause.

We don't want the 2nd amendment to get special treatment, we want it to get NORMAL treatment. Normal rights don't get treated as privileges you need the government's permission to exercise.

[Rev. Arthur L. Kirkland]

Clingers continue to ladle their curious insights concerning constitutional law, scant thimbleful by scant thimbleful, in the devoted service of gun nuttery.

[Sarcastr0]

It's not a word salad, Brett. You want the 2A to be some kind of super-right that doesn't look like the others.

Your argument that the 2A is actually a sub-right that is given short shrift turns out to be a false premise.

the sales in question were intra-state, and so beyond the legitimate reach of the interstate commerce clause
No new goalposts.

[Sarcastr0]

Whar is open thread?

[Brett Bellmore]

No, open thread is whar.

[Dilan Esper]

Of course a background check is constitutional. It's constitutional to bar violent offenders and the mentally ill, so it is necessary and proper to check their backgrounds.

And remember, the point of the Second Amendment is to create an effective fighting force to defend the government. It is right there in the text. Checking backgrounds bears a strong relationship to that purpose.

[Brett Bellmore]

One does not follow from the other, you know. It would be constitutional to bar convicted counterfeiters from buying high end color printers, but would it be constitutional to require a background check before you could buy a printer? Let alone a discretionary license before you took it home?

[Dilan Esper]

Brett, I think it would be entirely constitutional for the government to require a background check and/or license before purchasing a printer WHOSE CAPABILITY OF COPYING CURRENCY WAS NOT DISABLED OR IMPAIRED, and I'm rather shocked that you don't understand that this is correct.

Indeed, the government HAS mandated copy protection in other media, and First Amendment challenges have failed (although there is, perhaps, a First Amendment right to share circumvention strategies).

[Bob from Ohio]

"defend the government"

No, defend a "free State" which is not necessarily the same as "government".

[Dilan Esper]

Yes it is, Bob. The framers thought they were creating a free state, which they expected gun owners to defend. And another clause, the Treason clause, permitted criminal punishment if those guns were ever turned against the government.

The Second Amendment is absolutely about the defense of the government. That's right there in the text.