The Court's Right to Bear Arms Decision

It's here, and it's long (135 pages for all the opinions put together); I'm still reading it, but I thought I'd post a link.

Comments

[SMP0328]

The right to keep and bear arms extended to include self-defense outside of the home. Government can still protect sensitive places. The Court rejected the standard the Courts of Appeals had been using, instead saying courts should look to history when reviewing firearms regulations.

[bernard11]

Government can still protect sensitive places.

"Sensitive places." Fucking joke.

IOW, no guns in the courtroom, but the subway, that's fine.

This is a runaway extremist right-wing court.

Courts should look to history? Then why didn't they. As Breyer said, they pick their friends out of history's crowd.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Pretty sorry sour grapes.

[Randal]

I think the result is probably right given Heller, but this is the beginning of the end for the "History & Tradition" approach to the second amendment. Alito's majority opinion is a mess, where he unpersuasively elevates some history and discounts other history in a way that can only be described as results-oriented and activist.

It's the main thrust of Breyer's takedown (which is more about the judicial process than the outcome). Even Barrett agrees in a concurrence that the historical approach leaves a lot to be desired.

The cherry is that Alito let his asshole flag fly with a very defensive concurrence to his own opinion that only serves to muddy the waters further. This will be the case that future historians look to as the one that began to discredit the historical approach to constitutional interpretation.

[ThomasReeves]

Well, since Thomas wrote for the majority and Alito had a concurrence, you’re incorrect on both the merits and the facts.

[Randal]

Haha whoops lol. That makes more sense.

If I were a justice, I would dread an Alito concurrence to one of my opinions. His defensiveness works to undermine his own points -- which Bryer takes excellent advantage of. Alito did more harm than good here.

[DJK]

So you'd be okay if we jettisoned the historical approach in favor of strict scrutiny? That's pretty much the only viable option given the current makeup of the Court. Sure you want to go down that path?

[California Dreamer]

Yes, it seems to me that strict scrutiny (or some other form of what the majority describes as "means-end scrutiny") makes the most sense, even if I wouldn't always like where that takes us. That's the test courts ordinarily apply to determine whether a law that impairs the exercise of a constitutional right is nonetheless permissible. I see no good reason to depart from that approach here. The historical approach offers little guidance in determining, for example, whether states may prohibit people from carrying guns in planes or subways. True, sometimes an examination of historical practice will assist in determining whether a law survives means-end scrutiny, but the latter seems like the preferable standard. The law at issue here may well be unconstitutional under that test as well, but I'm not sure I buy the majority's reasons for rejecting that test.

[Snorkle]

Certainly would improve on the current situation, in which there is "legal history", which is determined by the preferences, prejudices and competence with history of the judge, and then the history that actually happened, which was determined by reality.

But whatever, I for one, think there's an interesting charity to be formed now - arming minorities in the deep south. Who wants to donate?

[Randal]

Ha we should see how fast the Republicans move to make "license harvesting" illegal once we start helping black people get concealed-carry licenses.

[Social Justice is neither]

I know of no Republicans that shit themselves over the thought of armed, law abiding black people; Democrats are almost the inverse.

[bernard11]

Do you know what "sour grapes" refers to?

Why don't you check before you throw the term around?

[Bob from Ohio]

There are guns in the subway today, Sullivan Law notwithstanding.

Its just criminals with them though. This decision opens up the possibility that [after a lot of foot dragging] good people can defend themselves.

[James Trickington]

Exactly. Shall issue will not add to the number of criminals with guns on the subways or streets. It will only increase the number of law abiding people with them.

[bernard11]

True believers.

[WuzYoungOnceToo]

IOW, no guns in the courtroom, but the subway, that's fine.<i.

Which is perfectly rationale. Unfortunately you have the mind of a simple-minded emotion-driven child, which makes such things impossible for you to grasp.

[WuzYoungOnceToo]

Which is perfectly rationale.

Er..."rational".

[Gozer the Gozarian]

You clearly didn't read the ruling. Thomas EVISCERATES the dissenting judges.

Read this dissent too. The three judges dissenting were essentially legislating from the bench and justifying different ways the government can infringe on an enumerated right in the Bill of Rights.

This ruling made clear that the three dissenting justices are highly politicized, not the 6 others. Just read the opinions, it's clear as day.

[WuzYoungOnceToo]

You clearly didn't read the ruling.

Having even the faintest clue what he's talking about before commenting just isn't bernard11's MO.

[James Trickington]

If subways are "sensitive" areas, like courtrooms, they should have armed security officers in every subway car, like they do in courtrooms.

[bernard11]

Yeah. Right.

Fucking idiocy.

[Snorkle]

So you only support armed deployments in schools, then?

[bernard11]

Do you know a damn thing about subways?

[Sebastian Cremmington]

Just as TRAP laws have effectively outlawed abortion over large swaths of America shall issue laws have legalized concealed carry of handguns in 43 states…so the states are ahead of the Supreme Court and this decision is for a few stragglers. The issue now is how many yards can school zones extend.

[bernard11]

this decision is for a few stragglers

No. About 25% of the population lives in those "straggler" states.

[WuzYoungOnceToo]

No. About 25% of the population lives in those "straggler" states.

So, by far the minority.

[Flight-ER-Doc]

We could reduce gun violence by at least 90% if we quit selling guns to democrats....

[Snorkle]

"See, it is funny, cuz they don't like guns, see, and anyway dumocrats are all black and black people shoot each other, see? I made a funny."

[Kazinski]

Sure they should look to history, but I only if the text isn't clear. The text in the second amendment is crystal clear.

Thomas is right, that's not how you treat constitutional rights, looking for excuses to infringe them.

[Randal]

What are you talking about? Thomas doesn't look at the text at all, he spends over 60 pages looking to history.

Were you being sarcastic?

[BadLib]

IOW, no guns in the courtroom, but the subway, that's fine.

Does everyone entering a subway station in your city have to go through a metal detector?

Does everyone entering a subway station in your city have their bags x-rayed?

Does every car and station in your city's subway have one or more armed LEOs providing protection at all times?

How many passengers on the subway in your city are in custody and required to remain on the subway for the rest of their lives and would use whatever force necessary, including deadly force, to escape and have friends and family on the subway who would also use such force to effect such an escape?

Do you really not see a stark difference between the two situations?

[bernard11]

Of course I see a difference.

But the question is, what is the probability of someone getting shot?

Subways are crowded. One lunatic with a gun can do a lot of damage. And there are going to be lunatics on the subway.

So I'd argue that the expected damage in the two cases is not that different, that both risks are above a reasonable threshold.

Oh. And how many prisoners serving life terms show up at SCOTUS hearings?

[Jason Cavanaugh]

Lots of places are crowded.

The overwhelming majority of those places are not 'sensitive.'

Quit crying. The people who apply for a permit and thus will now actually be allowed to exercise their rights are not the ones you should be trembling over.

[WuzYoungOnceToo]

Subways are crowded. One lunatic with a gun can do a lot of damage. And there are going to be lunatics on the subway.

And if there's one thing we know it's that lunatics intent on murder are nothing if not respectful of the law and fearful of breaking it.

Just how often were you dropped on your head as a child?

[BadLib]

How many illegal homicides each year are committed by a person having a CCW permit and using a concealed weapon in the murder?

I think you will find that number is tiny.

Given that 43 states are "shall issue" or "no permit required" and many have been so for many years, surely we would have seen the long predicted carnage by now.

Or is there something about residents of California, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island that makes them particularly dangerous if they are permitted the means to defend themselves? Perhaps there is -- I noticed that Biden won in each of these states by a wide margin. Perhaps there is a genetic defect that causes people to both vote for Biden and be untrustworthy to carry a firearm in public even after going through the effort of obtaining a CCW permit?

[Brett Bellmore]

"Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry."

Fist pump! The 2nd amendment doesn't just apply in the home!

Gonna be a long read, though.

[DJK]

Damn, it feels good to be a bitter clinger.

[Mr. Bumble]

...meanwhile Senate Republicans are working with Dems to muddy the waters.

[Brett Bellmore]

The midterms looked like a blowout, so they figured the could spend some of the excess, do what they felt like and screw over their voters, and still win. The only thing that keeps them on the straight and narrow is the belief that they have to, in order to remain in office.

[Brett Bellmore]

Checking, I see that 12 of the 14 are retiring, so they don't give a damn what the voters think.

The other two for some reason think they aren't retiring. When they come up for reelection it will be time to correct that misapprehension.

[Flight-ER-Doc]

Feinstein is doing her best to screw the entire deal...

But the cowards like Cornyn and McConnell will urinate on themselves before rolling belly up

[PeteRR]

One of the few constitutional rights we've managed to claw back from the leviathan.

[Stephen Lathrop]

PeteRR — that, "leviathan" is the sovereign power of the People, which is the only power on earth which can vindicate any of your rights. Never mind, though, your mistake is near universal, with mis-educated masses taught tacitly the error that government is the sovereign. You are just one among a near-unanimous crowd who never asked himself, "If government is the principal threat to my rights, how can government power be my sole reliance to protect them?"

[PeteRR]

The government is not the sole reliance to protect them. Governments go bad. we've seen that through history. The US government has over-stepped the powers granted to it in the Constitution. In many ways and in many forms.

The ultimate guarantor of our rights is us, the people. We grant the US power in order to govern. And if it goes not only bad, but over the line into tyranny? Then that's why we're armed.

There has been a serious attempt over the past 50 years to disarm the very people who restrain government. Heller, McDonald, and now this decision have put a stop to that.

[Stephen Lathrop]

PeteRR — Alas, your desperate and unlikely conclusions about arms and tyranny ignore a safer and more efficient solution for the vindication of your rights. Politics, not armed rebellion, is the solution against tyranny which the framers wisely built into the nation's structure. De-stigmatize politics, reject cynicism, and embrace the notion of institutionalized norms and practices, and you can get free of your nightmare of bloodshed and anarchy.

Your own reply seems to acknowledge that. So what accounts for an apparent choice to rely on arms, which is a means short of capacity for mutual accommodation? Does it signal a preference of yours not to accommodate a role as part of a mutually self-governed polity? Your belligerence is mysterious.

[Kazinski]

Your "the mob is sovereign" theory is correct after the rule of law breaks down.

The second amendment insures government is not my recourse to protect my rights.

[Ed Grinberg]

The [S]econd [A]mendment [e]nsures government is not my [only] recourse to protect my rights.

And a good thing, too:
https://reason.com/volokh/2022/06/09/guns-kill-people-and-tyrants-with-gun-monopolies-kill-the-most/

[Stephen Lathrop]

Kazinski — Your gun is still-less a recourse to protect your rights. It is a means to throw them away, on some desperate gamble.

[Shamie Ervin iv]

Hallelujah! That means NC's concealed weapons law is also unconstitutional and therefore ALSO null and void.

Bwaaaaaaaaahahahahahahahaaaaa! Time to pack and conceal!

It's about time. I'm a law-abiding citizen with no crimes on my record. Therefore, the Supreme Court of the United States has done me a citizen's service, for a citizen in good standing, by officially recognizing my rights to carry. CONCEALED!

I commend you, and with my gratitude.

[Kazinski]

You better check on that one, I don't think this ruling is going to affect the 42 states where shall issue is already in place.

[WuzYoungOnceToo]

That means NC's concealed weapons law is also unconstitutional

NC is a "shall issue" state. How exactly does this decision render that unconstitutional?

[John F. Carr]

Massachusetts is going to be in trouble soon. It was called out by the Supreme Court as one of the few states with discretionary licensing. In advance of the decision, the Boston Globe (among others) changed its writing style to refer to gun "safety" laws instead of gun regulations.

[WuzYoungOnceToo]

the Boston Globe (among others) changed its writing style to refer to gun "safety" laws instead of gun regulations

They're playing catch-up, as everyone else seems to be shifting to the new-and-improved "run reform" term. Just the same bullshit word gamesmanship that was played with "global warming".

[WuzYoungOnceToo]

"run reform"

Er...."gun reform".

[BravoCharlieDelta]

The Federals and their bootlickers are going to be dragging out their fainting couches.

[Dave_A]

Yawn... The federal government has never taken an interest in matters of conceal-and-carry law.

This is just 6 hold-out states being told to get with the program....

[Brett Bellmore]

And DC. And Puerto Rico. And the Virgin Islands. And American Samoa.

Guam and the Northern Mariana islands seem a bit more reasonable on the topic.

[Martinned]

Apart from DC those places don't have constitutional rights, so that's a whole separate conversation.

[Nisiiko]

WTF are you talking about?

[WuzYoungOnceToo]

WTF are you talking about?

Things about which he is fundamentally ignorant...as usual.

[Nisiiko]

Directly, yes, but the decision has implications for all sorts of stupid rules, like the prohibition of "assault weapons," bans on guns in non-sensitive government buildings, the prohibition on interstate handgun purchases, and so forth.

[Brett Bellmore]

Assuming there are 5 votes to reason consistently about these matters, sure. I suspect there aren't on most of that.

[Nisiiko]

I think there's a possibility Roberts isn't, but I haven't heard anything to indicate that the other 5 are.

[Brett Bellmore]

The lack of grants of certiori over the last decade would be my basis for that suspicion. It only takes 4 votes to grant cert, but we just got our first 2nd amendment case in over a decade. It wasn't for lack of people trying.

[Nisiiko]

But Kavanagh, Gorsuch, and Barrett weren't on the court then.

But I do agree with you that I don't see the courts striking down the NFA, forcing the full-auto registry back open, or anything like that.

[Randal]

Read Kavanaugh's concurrence and get back to us.

[apedad]

From Kavanaugh's concurrence:

"In contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements."

I'd buy all that.

[Currentsitguy]

I don't. If it doesn't make sense for the 1st, it isn't Constitutional for the 2nd. There is no 2nd Amendment exception clause in the Bill of Rights. Do you need to undergo fingerprinting, have a background check, a mental health records check, of have training to exercise your 1st Amendment Rights? If no, then it is Unconstitutional for the 2nd.

[Martinned]

So there's now a constitutional obligation to issue non-discriminatory speech vouchers? Such direct read-across between rights is extremely stupid.

[Josh R]

Under this decision, whether the First or Second Amendment rights are subject to a background check is based on historical practice. I find it interesting that Kavanaugh and Roberts chose to answer the question prospectively (as did Thomas for "sensitive places").

[Brett Bellmore]

I'm fine with the sensitive places bit, as Thomas notes, they can't up and declare an entire city a "sensitive place", it has to have some special character.

But I don't see any historical basis in terms Thomas uses it for background checks or licensing.

[bernard11]

What is the definition of a "sensitive place?" What makes a place sensitive?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Irrelevant; there is no "sensitive places" clause in the amendment.

[bernard11]

So I can take a gun into the Supreme Court?

[Nisiiko]

Secure buildings (meaning metal detectors and armed guards) where government buildings essential to the administration of justice or the core functioning of the government take place.

Not merely all government buildings, like the post office or a visitor center at Yellowstone.

[Brett Bellmore]

Agreed. If they don't have a security check at the door, they obviously don't think the place is 'sensitive'.

[Nisiiko]

Yup. Off the top of my head, I'm thinking legislative buildings, courthouses, military installations. I could go either way on federal office buildings.

In any case, I don't think any of these prohibitions should apply to guns left securely in cars in parking lots.

[bernard11]

Try putting a security check at the subway entrance.

Do you ever think before you post this shit.

[Nisiiko]

That's his point you moron. If you don't have a security checkpoint, you're not really prohibiting criminals from carrying weapons. "No guns" signs do not a sensitive place make.

[Nisiiko]

"where government buildings" was supposed to be "where government functions"

[Randal]

This is why I think the days of "historical basis" reasoning are numbered. You really can't use it to justify the sorts of licensing restrictions those 43 states have in place, but I don't think there are five votes to gut those restrictions based on today's concurrences. So they'll be forced to fall back to strict scrutiny.

[BadLib]

I believe that 25 states, over half of those 43 states, don't require, or soon will not require (Alabama's law takes effect Jan 1, 2023 and Indiana's takes effect in about a week), a permit for residents to carry concealed in most situations.

[Krychek_2]

The First and Second Amendments are about different subjects so there are a great many things that might make sense for one but not the other. That said, even though I probably support more regulation than most here, I think this was the right decision. What amounts to a flat ban on carry outside the home is a bridge too far.

There will be those on the left who think this decision is the apocalypse, just as there are those on the right who think any regulation at all is the apocalypse. For those of us who are in the middle -- some regulation is good, flat bans aren't -- this was a good decision.

[Brett Bellmore]

I don't think the concurrences' approval of licensing is the apocalypse, it's just a failure to restore the right entirely against infringements that grew up during the decades the Court was refusing to take 2nd amendment cases. This case still represents incremental improvement over the status quo.

The number of justices in those concurrences, though, suggests we've got some work ahead of us before the Court embraces "the 2nd amendment is my carry permit!" reasoning.

[Krychek_2]

That's because the Supreme Court is not in the business of conducting the Mad Hatter's tea party. "The Second Amendment is my carry permit" is a perfectly ridiculous policy, with potentially serious real world consequences. They understand they are permitted to take those real world consequences into account.

My old crim pro professor once talked about what he called the "baby in the trunk" rule -- if the police search your car and find a dead baby in the trunk, the courts will find a way to get it admitted into evidence whether or not there was a Fourth Amendment violation, just because the stakes are so high. The same thing applies here. Just because the lunatic fringe doesn't have a problem with totally unfettered and unregulated wild west conditions doesn't mean nobody else does.

[Brett Bellmore]

Your problem is that your idea of a lunatic fringe is somewhat warped, perhaps from living in a society that's been violating the right long enough that you personally don't recall a time when it wasn't being violated, and nothing terrible happened.

[Krychek_2]

Brett, the problem is that what used to be the lunatic fringe has now taken over the Republican Party. I can't imagine any of the GOP leaders from my youth -- Eisenhower, Goldwater, Rockefeller, Mark Hatfield, Bob Michel, Bill Milliken, Everett Dirksen -- stomaching the sheer idiocy coming out of the GOP these days.

[Brett Bellmore]

Yeah, by some measures as much as 60% of the public consists of the lunatic fringe.

At some point, when a notion becomes popular enough, you need to admit that it may be 'lunatic' in your view, but it's not fringe.

[Krychek_2]

Brett, there aren't a whole lot of issues on which your side commands 60% of the public, which would be blazingly obvious if Wyoming couldn't cancel New York in the Senate.

[VinniUSMC]

Wyoming is 1/50th of the states that comprise the US. Since the Senate is representative of the States, not of the population, why shouldn't it be able to cancel any other single state in the Senate?

Because you don't like it?

[Krychek_2]

Giving Wyoming 1/50 of the votes in the Senate creates the illusion that conservative voters are far more numerous than they actually are. It makes it look like conservative policies are far more popular than they actually are.

[Nisiiko]

So does replacing Americans with third worlders.

[Jason Cavanaugh]

No, Krychek, it demonstrates that each State is allotted two Senate votes, because we're a fucking Constitutional Republic.

It reflects that the Senate is meant to be the national voice of the STATES, and the House is meant to be the national voice of the PEOPLE.

I hold no hope that you will someday actually realize this.

[Krychek_2]

Jason, it's not that I don't understand the theory; it's that I think it's terrible public policy, for reasons I've already repeatedly given.

[Jason Cavanaugh]

Krychek,

The only thing you're interested in, is silencing the minority of this country and forcing your political views upon each and every State, regardless of the wishes of those citizens.

Using your favorite complaint: You want Wyoming residents to be ruled by New Yorkers, and you bitch that WY is capable of nullifying NY in the Senate.

Naturally, you've never once mentioned that NY doesn't just nullify WY in the House, but actually overrides it completely. That just isn't "good enough" for your desires of power and control over those who disagree with you.

Nothing you have ever said on this subject has been anything more profound than you complaining about how you don't get everything you want because of the 'minority' you don't agree with. It's almost as though you have no concept of the benefits of giving both People, and States, a voice in our national policies.

"We should up-end the foundation of our political process that's worked for more than two centuries because I can't have everyone live their lives the way I want them to.

Not a flattering take.

[bernard11]

Because you don't like it?

No. Because it's an idiotic system.

[Krychek_2]

It's not that I don't get what I want; it's that the American people don't get what they want. And if you think paralysis and gridlock are good things then we just disagree.

And don't forget, for all your beautiful theories about protecting minorities, the January 6 riot was in practice the real world consequence of anti-democratic institutions. With no electoral college there would have been no January 6.

[Bob from Ohio]

"Eisenhower, Goldwater, Rockefeller, Mark Hatfield, Bob Michel, Bill Milliken, Everett Dirksen"

You are old.

All the legislators on that list were never in a federal majority. Not one day. The execs were part of the New Deal domestic consensus, that's long gone, in both parties.

Things change, JFK was a tax cutting hawk. Those don't exist anymore in the Democratic party.

[Bob from Ohio]

Correction, Goldwater and Hatfield were in the majority for 6 years, thanks to Reagan. But the GOP of the era you cite was a still a hopeless minority for 40 years.

[Krychek_2]

They were in the minority because their ideas were mostly unpopular, but if you take democracy seriously that's as it should be. But we've had this conversation before; I simply disagree with you that you win at all costs. Would you vote for Goering and Goebbels if doing so would win your side the election?

[Bob from Ohio]

"ideas were mostly unpopular,"

Fair enough, but they also acted like losers. Gun rights are broadly popular [43 states have no permit or shall issue], you are the one out of step.

[Michael would not a have been speaker in 1995 though. Newt would have beaten him.]

[Krychek_2]

It reminds me of the old joke about the deacon who said to the pastor, "Reverend, you are so partisan I bet you'd vote for Satan himself if he ran as a member of your party." To which the pastor responded, "Not in the primary I wouldn't."

[Krychek_2]

Oh, I support shall issue. Many Democrats do. Don't confuse supporting regulation with supporting a ban.

[Krychek_2]

I am old, and Mark Hatfield was in the legislative majority from 1980-1986 IIRC. Michel would have been (and in fact would have been speaker of the house) had he run for one more term.

Things do change, but crazy is still crazy. I mostly disagreed with the Republicans I named, but at least they were sane.

[WuzYoungOnceToo]

I am old

Then you don't even have youth as an excuse for the simple-minded drivel you spout, like...

"Just because the lunatic fringe doesn't have a problem with totally unfettered and unregulated wild west conditions..."

[Krychek_2]

Oh hey, it's Wuz, our right-wing version of Rev. Arthur Kirkland. Can you please settle a bet: There are some here who think you and Rev. Arthur are the same person, with mirror-image sock puppet accounts. Are they right?

[WuzYoungOnceToo]

There are some here who think you and Rev. Arthur are the same person, with mirror-image sock puppet accounts. Are they right?

What the voices in your otherwise empty head are saying is of no interest to me.

[VinniUSMC]

There are some here who think you and Rev. Arthur are the same person

Exactly how many split personalities do you have?

[Krychek_2]

Wuz, noted that you didn't answer the question.

[Krychek_2]

Vinni, you obviously don't understand satire. I decided to post something as stupid as Wuz normally posts (and what I said sounds exactly like something Wuz would say). Sorry you didn't get the joke.

[Krychek_2]

And just to be clear, Wuz and Arthur are mirror images of each other, except that one is left wing and the other is right wing. Only rarely does either of them contribute anything of substance. They mostly show up long enough to insult someone before flying off on their broomsticks.

[WuzYoungOnceToo]

Wuz, noted that you didn't answer the question.

Yes, actually...I did. I'm sorry you're too stupid to have understood it.

I decided to post something as stupid as Wuz normally posts

LOL! You're so full of shit you could fertilize every cornfield in Iowa...twice.

[Krychek_2]

So true, I couldn't possibly post anything as stupid as you post. What was I thinking?

[WuzYoungOnceToo]

What was I thinking?

You weren't, as usual.

[Seamus]

Nice. Now do the Democrats. (What would JFK, LBJ, Mike Mansfield, Sam Rayburn, John McCormick, or Adlai Stevenson say about, say, putting "transgender women" into women's prisons, women's swim teams, etc.?)

[Krychek_2]

Since probably none of them ever thought about trans issues I'm not going to guess. Given that most of them were advocates of legal equality, if the issue were explained to them they might have supported it; I don't know. You'd have to ask them.

[WuzYoungOnceToo]

Since probably none of them ever thought about trans issues I'm not going to guess.

Nice cowardly dodge.

[Nisiiko]

The word "equality" begs the question. They certainly didn't believe in a right to sodomize another man.

[Krychek_2]

Well, I knew Mike Mansfield, and once a new idea had been explained to him he actually thought it through before committing himself (unlike Wuz, apparently). Call it a dodge if you like, but I'm not going to predict what he would have thought about something he most likely never thought about.

As for the "right to sodomize another man" I'm quite certain JFK, who had numerous gay friends including Gore Vidal and Rock Hudson, would probably have been more open minded on that than you might think. LBJ refused to fire a gay aide who had been arrested for sex in a public bathroom, and Adlai Stevenson was an academic so odds are he would have been open minded about it. So again, don't assume you know what someone else would have thought.

[WuzYoungOnceToo]

Call it a dodge if you like, but I'm not going to predict what he would have thought about something he most likely never thought about.

They certainly thought about the underlying principles, making it relatively straight-forward for anyone with an above-room-temperature IQ to contemplate where their positions on those principles would have led them on various topics.

[Krychek_2]

Wuz, not even close. First of all, which specific "underlying principles" do you have in mind? Because the underlying principle of supporting the nuclear family, and the underlying principle of individual liberty, produce polar opposite results, and both of those were being talked about in the 1960s. So you first have to identify which specific underlying principle you mean, because there's a menu of them to choose from.

And once you're over that hurdle, you still don't know that the views of any of the named individuals would have been the majoritarian view at the time. There is evidence that FDR privately supported gay rights, which would have been an extremist view in the 1930s and 1940s. There have always been people who were ahead of their times.

And this illustrates the problem with your over-simplistic view of the world. You see things in stark black and white. Sometimes they're not.

[WuzYoungOnceToo]

First of all, which specific "underlying principles" do you have in mind? Because the underlying principle of supporting the nuclear family, and the underlying principle of individual liberty, produce polar opposite results, and both of those were being talked about in the 1960s.

Right, because none of the aforementioned individuals ever gave any hints as to their thoughts about individual liberty.

You really are an idiot.

[Krychek_2]

OK, for any of the specific named individuals, tell us their thoughts on individual liberty.

[WuzYoungOnceToo]

Add "lazy" to your resume.

https://letmegooglethat.com/?q=%22individual+liberty%22+jfk+lbj+%22Mike+Mansfield%22+%22Sam+Rayburn%22+%22John+McCormick%22+%22Adlai+Stevenson%22

[Joe_dallas]

Krychek_2
June.23.2022 at 12:21 pm
Flag Comment Mute User
Brett, the problem is that what used to be the lunatic fringe has now taken over the Republican Party."

Pot meet Kettle

[Krychek_2]

Joe, the Democratic Party these days is mostly GOP lite. It only looks like they're leftists because the GOP is so far right that it skews things. Sure, we've got a few leftist loudmouths, but they don't run the party the way the right wing lunatics run the GOP.

[Joe_dallas]

pot calling the kettle black - !

[Bill Falcon]

With the exception of AUH2O and Ike, the rest of those folks were horrible. Robert Taftism is dominating the party and even parts of the LP now..no foreign inteventions, sound money, limited govt and a strong Bill of Rights. folks like Nixon, Bush, Bush 2 and yes even Trump were horrible.

[DJK]

There's a major distinction here. The exclusionary rule is made up from whole cloth. It does not appear in the Constitution. Hence the pushback to drastically restrict the Warren Court's newly discovered rights. In contrast, the right to keep and bear arms clearly appears in the Constitution itself.

[Krychek_2]

The principle, though, is the same: If the stakes are high enough, a way will be found to arrive at a non-crazy result. Even if the originalist interpretation of the text says otherwise.

[apedad]

No, the Constitution sez the right . . . shall not be infringed.

There is NO ABSOLUTE RIGHT.

[Don Nico]

"There is NO ABSOLUTE RIGHT."
How can you infer that from the text that you quoted? In fact, one might conclude just the opposite, that the right precedes the Constitution and is unlimited.
Then the BoR says that this unlimited right "shall not be infringed."

[Carl_N_Brown]

"Wild West" was a creation of dime novels and B movies based on them. The real Old West was safer than the New York Subway system.

[DavidTaylor]

"The real Old West was safer than the New York Subway system."

Exactly. Thus my hope that everyone will have a concealed gun on the NY subway and will shoot anyone who looks threatening.

[Nisiiko]

You're an idiot.

[Hey Skipper]

Krychek_2: "The Second Amendment is my carry permit" is a perfectly ridiculous policy, with potentially serious real world consequences. They understand they are permitted to take those real world consequences into account."

There are 24 states that are constitutional carry, with a 25th (Alabama) as of 1 Jan 23.

The experiences of those 24 strongly argue against serious real world consequences.

[Krychek_2]

And how do gun deaths in those states compare to states that do not have constitutional carry?

[WuzYoungOnceToo]

And how do gun deaths in those states compare to states that do not have constitutional carry?

Not surprisingly you've gone with a simple-minded/dishonest (or both) approach to inquiry. One intended to actually uncover any meaningful and/or useful data would sound more like, "What does a statistical analysis of the changes, if any, in overall homicides, suicides and violent crime in general following the enactment of constitutional carry in the states that have done so show?"

[Krychek_2]

Not surprisingly, you're acting like Arthur Kirkland again.

[WuzYoungOnceToo]

It's funny how you so hypocritically (and dishonestly) accuse me of not posting substance, all the while doing nothing yourself but engaging in a cowardly avoidance of the substantive arguments I post.

[Krychek_2]

"Not surprisingly you've gone with a simple-minded/dishonest (or both) approach to inquiry" is not a substantive argument, and, as I've told you before, I treat you with as much courtesy as you treat me. If you want to have a civil conversation, fine, I'm up for that. Otherwise, you deserve all the raspberries I'm sending your way.

Granted, this one time you did follow up your initial insult with a substantive comment -- rare events do happen -- but I mostly responded to your points in my comment below to Hey Skipper.

[WuzYoungOnceToo]

but I mostly responded to your points in my comment below to Hey Skipper

No, you didn't even come close to responding to my point in any of those comments...you lying sack of shit.

[Brett Bellmore]

And there you go, adopting the dissent's reasoning, where this is a policy decision, and not the majority's reasoning, where the 2nd amendment represents the policy decision having already been made.

With 44 states shall carry, the Court had the courage to extend it to all 50. I expect we'll see the same dynamic with constitutional carry: This Court doesn't have the courage to lead, but it's willing to drag the stragglers where the majority of states have already gone.

[Krychek_2]

Um, no. I just asked a simple question. I didn't say a word about how or if I think it should have impacted today's decision.

[WuzYoungOnceToo]

Um, no. I just asked a simple-minded question. I didn't say a word about how or if I think it should have impacted today's decision.

FIFY.

[Krychek_2]

And if your daddy had only been fixed, the world would be a much more civil place.

[Jason Cavanaugh]

If Wuz knew his daddy, I imagine that comment would've been hurtful to him.

[Hey Skipper]

"And how do gun deaths in those states compare to states that do not have constitutional carry?"

There's several ways to look at this:

Up until the mid-1990s, few states had constitutional carry. What was the experience of those states adopting constitutional carry since then? SFAIK, there were no significant consequences. (Similarly, mayhem was predicted after carry restrictions were lifted in National Parks. Mayhem did not happen.)

Second, one could look at homicide rates — presuming one cares most about the ends and not the means. Idaho is constitutional carry, with a homicide rate of 1.8/100,000. NY and NJ are at 2.8 and 3.6, respectively.

As for looking at just gun deaths, from the chart, it looks like states with constitutional carry are fairly evenly distributed across the range.

(https://worldpopulationreview.com/state-rankings/murder-rate-by-state)

[Krychek_2]

Idaho is mostly rural, unlike NY and NJ, so I'm not sure that's an apples to apples comparison.

The problem with constitutional carry is that it makes it easier for lunatics to carry with them the means of mass death. That, of course, is a separate question from whether in actual practice that's what has happened. The other issue is that in terms of gun deaths, a single incident in which a mass shooter kills 20 people has the same bottom line as 20 murders with one victim each, but the 20 murders with one victim each won't generate the same kind of headlines. And, the policy question is this: Is inconveniencing law abiding gun owners (while still ultimately allowing them to have and carry guns) worth it if it saves some lives?

And I see it as the same analysis as seat belt laws. In the grand scheme of thing, seat belts probably don't actually save that many lives, but they save some, so mandating the inconvenience is probably worth it.

[WuzYoungOnceToo]

The problem with constitutional carry is that it makes it easier for lunatics to carry with them the means of mass death.

No, it doesn't. Your "reasoning" (and I'm being very generous there) seems to be that someone who is both mentally ill and intent on committing mass murder, with the most probably outcomes being their own death or...at best...life imprisonment, will be dissuaded from committing the additional-but-far-less-serious offense of possessing the means to do so because, "Yikes! That's against the law!"

That argument requires a very, very special brand of stupidity.

[Hey Skipper]

"Idaho is mostly rural, unlike NY and NJ, so I'm not sure that's an apples to apples comparison."

Did you look at the link?

Constitutional Carry and Shall Issue states are scattered across the range.

If guns were the significant driver of homicide rates, then the least restrictive rules and the highest gun ownership should be clustered at the bottom of the chart. They aren't

(In the bizarro world of statistics, this chart, https://worldpopulationreview.com/state-rankings/strictest-gun-laws-by-state, which ranks states by strictness of gun laws, shows Idahos *gun* homicide rate at 16.6/100,000. Which is, if you will pardon me, off the charts wrong. See CDC all cause homicide data, it agrees very closely with the first chart I posted.)

[Krychek_2]

Wuz, that's a really dumb argument even for you. Nobody is claiming that criminals will choose not to get guns because it's against the law. Rather, that making something illegal (or at least regulated) makes it more difficult to get guns, and so someone might have a chance to cool down.

Suppose I am mad at my boss and decide to shoot him. One state allows me to walk across the street to a gun store and walk out five minutes later with an AR-15. Another requires a three day waiting period. In which state am I more likely to calm down and not commit the murder?

[WuzYoungOnceToo]

Wuz, that's a really dumb argument even for you.

Only if one views through a lens of dishonesty and stupidity, like you're so pathologically predisposed to doing.

Nobody is claiming that criminals will choose not to get guns because it's against the law.

We're not talking simply about "criminals", but "lunatics" (your own word), remember...you weasel?

Rather, that making something illegal (or at least regulated) makes it more difficult to get guns, and so someone might have a chance to cool down.

One does not "cool down" from being a lunatic, you moron.

Suppose I am mad at my boss and decide to shoot him.

Then you're a nut-case, and will still be a nut-case a week or even a month from now.

[BadLib]

In over 20 states today a resident can carry concealed in most situations without a permit - i.e., "The Second Amendment is my carry permit". Most of these haven't had a requirement for a government issued permit for at least five years (Vermont has never had such a requirement so that experiment has been running for over 230 years).

Yet, I'm not seeing reports of horrible outcomes in those states. Hence, I'm not inclined to accept w/o additional evidence that such "no permit required" policies are "perfectly ridiculous".

Every loosening of restrictions on firearms possession in the past 20 or so years has been accompanied by hand wringing predictions that carnage would result -- yet those predictions have not generally come to fruition (albeit with some exceptions in remaining "gun free zones").

[Dave_A]

The language of the 1st vs the 2nd is different.

'Congress shall make no law' is far more absolute language than
'shall not be infringed'.

Now, it is pretty clear that a law that essentially forbids most citizens from 'bearing' arms (openly or concealed) in public is an infringement (as was the case in NY)....

But what about a state where anyone who's civil rights are intact can carry openly (thus you can bear arms without a permit), and anyone who pays a $65 fee/passes a background-check every 5 years can carry concealed (Washington State law)? Is that an infringement?

If we accept that $65-and-a-background-check is not an infringment, however... Then how much money, training, and bureaucratic BS does there have to be before it's an infringement?

This is why this stuff ends up being litigated.

[Michael Ejercito]

But what about a state where anyone who's civil rights are intact can carry openly (thus you can bear arms without a permit), and anyone who pays a $65 fee/passes a background-check every 5 years can carry concealed (Washington State law)? Is that an infringement?

the fee q

[Michael Ejercito]

But what about a state where anyone who's civil rights are intact can carry openly (thus you can bear arms without a permit), and anyone who pays a $65 fee/passes a background-check every 5 years can carry concealed (Washington State law)? Is that an infringement?

The fee question is answered in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)

[Nisiiko]

The dollar threshold should be the same one that the left accepts for a voter ID card and for a gay sodomy/marriage license.

[Kazinski]

Yeah, I'd be much happier if they looked to the 25 states with constitutional carry, but progress is progress.

[Joe_dallas]

Scotus blog comment - "Page 2 of Alito's concurrence is notable and troubling. He dismisses Breyer's recounting of mass shootings. "Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? ... The New York law at issue in this case obviously did not stop that [Buffalo] perpetrator.."

Notable that Breyer's dissent focuses on the number of homicides in the US as a valid reason for gun control, yet as Alito notes, the NY gun control statutes in place did not stop the Buffalo shooting, nor will any of the gun controls advocated by the proponents of gun control will have any positive effect.

[Bob from Ohio]

Sam's concurrence is so, so good.

[Martinned]

They're both wrong.

[Joe_dallas]

I agree Breyer's dissent is wrong

[Brett Bellmore]

The problem with Breyer's dissent is it takes the meaning of the 2nd amendment as a policy choice, while the majority point out that the 2nd amendment actually represents a policy choice that was already made, and the Court is only charged with upholding, not altering.

[DJK]

Isn't this Breyer's approach to everything? He's been pretty consistent, even if I disagree with him on his approach to Constitutional interpretation.

[Brett Bellmore]

Yeah, pretty much.

[BravoCharlieDelta]

Breyer was relying upon the "Must do something" and "won't you think of the children" clauses in the Constitution. It's right there before the "General Welfare means the federal government can do whatever they want" clause.

[bernard11]

The New York law at issue in this case obviously did not stop that [Buffalo] perpetrator.."

This is an idiotic argument. Embarrassing, really.

"The guard rail didn't prevent that accident last week, so let's take it down." Worthy of Roberts in Shelby County.

[Nisiiko]

If the presence of the guard rail had enormous negative externalities, that might be a legitimate argument. It doesn't, so it isn't.

[WuzYoungOnceToo]

This is an idiotic argument. Embarrassing, really.

That's a spot-on observation...at least if one interprets it to apply to your own sad attempt at an analogy that followed it:

"The guard rail didn't prevent that accident last week, so let's take it down."

This is stupid for multiple reasons. First off, guard rails don't constitute an infringement of any constitutional rights, so there is no similar reason to dismantle an existing one. Secondly, pointing out that a guardrail didn't prevent one particular accident would make perfect sense in response to someone else claiming that the guardrail is necessary by citing the aforementioned accident that the guardrail did nothing to prevent.

You really are an idiot.

[Nisiiko]

Yes. Mass shootings where the shooter passed the NICS check are often used by leftists as justification for private sale background checks.

Same dishonest line of reasoning.

[Bored Lawyer]

It's not an argument, it's a rejoinder to an idiotic argument. That somehow the (apparent) recent spate of shootings means that SCOTUS should interpret the 2d Amendment the way Breyer likes.

Try this one. There have been in the last few years a spate of mass shootings inspired by extreme and/or racist content on the internet. The internet's ability to connect a world-wide audience allows extremist groups to collaborate across state and international borders, and inspire disaffected loners to commit mass crimes. So henceforth the First Amendment does not apply to the Internet.

See anything wrong with that?

[Seamus]

Better analogy: "The guardrail over in the parking garage didn't prevent that accident where the car drove off the road, so taking it down will have zero impact on public safety."

[PeteRR]

NJ's gun control regime is ripe for demolition.

[DJK]

CA's too!

[Commenter_XY]

My thought as well = People's Republic of NJ will have to change their draconian laws.

[Ben_]

As always, there’s an amendment process for the constitution if you want to change the document's wording the honest way.

Attempts to subvert it were successful for a while, but now they’re failing, one after another. When every underhanded trick or scheme finally fails, people who want to change the words will only be left with one way forward: honesty. I hope it’s not too big of sn adjustment.

[Martinned]

Is there, though? If a tree falls in the woods but nobody hears it... (If there's an amendments process that can't, realistically, be used for anything that's actually worth doing...)

[DJK]

It's been used 27 times. Seems pretty realistic. Perhaps the problem is that supposed common sense ideas don't have significant enough support (i.e., aren't common sense).

[bernard11]

It's been used 27 times.

Not really. Ten were done at the beginning, and three took a civil war.

[DJK]

Didn't realize that the circumstances under which Amendments were passed means they didn't use the procedure for Amendment. Must have missed that part of my Con Law classes. Even if your ridiculous argument has any meaning, that still leaves the majority enacted in "normal times."

[Brett Bellmore]

He's not completely wrong, in that the first ten amendments were sent to the states at the same time. But, yes, they did all go individually through the ratification process.

He's not even wrong about the Civil war, since some of those amendments were ratified under VERY dubious conditions, in some cases extending to even having soldiers in the legislative chamber to replace legislators who voted against ratification.

That still leaves 14 amendment adopted entirely in normal order.

[Seamus]

the first ten and the 27th were sent to the states at the same time

FTFY.

[Brett Bellmore]

It can realistically be used for plenty of things that are worth doing, but not if you don't have public support for doing them.

And going through the motions of getting the amendment is HOW you demonstrate that public support. Not polls, or a finger to the wind.

[DJK]

Especially when it is so easy to use loaded or misleading language in polls.

[Martinned]

But things that have enough support that you might reasonably manage to put them in the constitution are exactly the things you don't need to put in the constitution. Ain't nobody coming after your right to keep & bear condoms.

[Brett Bellmore]

On the contrary. Just because you have public support for an amendment doesn't mean nobody in the government would be tempted to act against it.

A bill of rights is not an expression of trust in government. You guarantee things in one precisely because you suspect the government will be temped to violate those rights.

[Martinned]

How is that different from what I said?

[Brett Bellmore]

I distinguish public support for a right from governmental inclination to violate it. People in and out of government have different interests in this regard, just because a right is popular doesn't mean the government won't violate it.

[Ben_]

"things that have enough support that you might reasonably manage to put them in the constitution are exactly the things you don't need to put in the constitution"

That’s a feature. You can’t use the constitutional amendment process to bully people who are not like you. You have to work together with them in order to get an amendment passed.

[WuzYoungOnceToo]

But things that have enough support that you might reasonably manage to put them in the constitution are exactly the things you don't need to put in the constitution.

Yes, that's why the federal courts are never presented with cases of governmental entities violating any of the provisions of the Constitution, either the main body or the Amendments.

It truly is difficult to believe that anyone who is capable of operating a computing device well enough to comment on the internet is actually as mind-boggling stupid as you make yourself out to be.

[KHP54]

I think disingenuousness is a better explanation here--either that or extreme provincialism (martinned is Dutch IIRC.)

[Joe_dallas]

Note that Stevens admitted his Heller dissent was based on fiction with his proposed amendment to 2A -- "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed."
"

[WuzYoungOnceToo]

(If there's an amendments process that can't, realistically, be used for anything that's actually worth doing...)

It's bad enough that you have no idea where the U.S. Constitution applies (see your ignorant comment about Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam and the Northern Mariana Islands), but it's also clear that you have no idea what's actually in the document.

[Brett Bellmore]

I'm still somewhat concerned about how licensing can ever be appropriate for the exercise of a civil liberty, even non-discretionary licensing. A license is permission, and to have a right is just exactly to not require permission.

Kavanaugh's concurrence says,

"I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.
First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States"

How the hell can you justify requiring somebody to obtain a license to exercise a civil right???

[apedad]

Because a civil right is not an absolute right (none of the BoRs are absolute.

And you know that....

[Brett Bellmore]

Yeah, and so? How does this imply licensing? Rather than that some putative exercises can be punished after the fact, in the way defamation is punished, but you don't need your speech license to talk?

[Josh R]

Historical practice?

[Currentsitguy]

I hate that argument. Just because "Well, we've always done it that way before" is not a justification if you've always been doing it wrong.

[DJK]

It's an especially terrible argument when you haven't even always done it that way before. Which is basically the analysis that the Thomas majority performed.

[Josh R]

It's not a matter of a right or wrong policy. It's a matter of what the Constitution permits. Thomas says if the historical practice permits it, then the states can implement it, no matter how bad a policy it may be.

[Currentsitguy]

No denying he said it, I'm just questioning what seems to be very poor reasoning.

[Brett Bellmore]

The problem with that reasoning is that Thomas is looking at historical practice prior to the 14th amendment, when the 2nd amendment didn't apply to the states. So how can state actions when they weren't required to comply with an amendment tell us the meaning of the amendment?

I suppose you could probably find pre-14th state and local laws that imposed censorship, too. They wouldn't tell you what the 1st amendment meant, because the governments imposing them weren't bound by the 1st amendment at the time.

Might as well argue that the 1st amendment allows establishing state churches today, just because some states had them at the time it was ratified.

[M L]

Beat me to it.

[SykesFive]

This is a pretty good point. I feel like ACB was pointing to it in her concurrence.

I read Thomas as somewhat minimizing the 2d Amendment's text, actually. The 2d Amendment in his mind must codify gun rights as they existed from Merrye Olde Englande to the early 19th century.

[M L]

Assuming some states historically licensed handguns, how is that relevant to the interpretation of the 2nd amendment which never applied to the states until recently?

[Brett Bellmore]

Yeah, demonstrate historical practice for requiring gun licensing, let alone background checks. Some local laws at a time when the 2nd amendment was understood to only apply to the federal government? Until recently there was nothing remotely like today's requirement for licensing and background checks.

[apedad]

How does licensing "infringe" on a right?

Or is that another part of 2A we conveniently ignore?

[Brett Bellmore]

Licensing is permission from the government to do something, and rights are precisely things you don't need the government's permission to do.

[DaveM]

Hm. I don't think you can say licensing is equivalent to "granting permission" though. Licensing can be just an administrative convenience. Registering to vote, for example, just makes voting in person more convenient: once registered, you don't have to provide proof of eligibility every time you vote.

I think where this goes off the rails is the assumption that a right is something that cannot be regulated. Well, that's not how the real world works. The world is finite. There are limits to everything.

[Brett Bellmore]

"Hm. I don't think you can say licensing is equivalent to "granting permission" though."

It's literally what the word means, and basically every gun license law imposes more requirements than just being an adult citizen, which is the only one constitutionally defensible.

"Licensing can be just an administrative convenience."

Registration to vote serves a legitimate purpose, since my right to vote is the right to cast my own vote, once per election, in the place I reside, and registration assures those limits are observed. The right to keep and bear arms is not so specific or limited, and does not require registration to effectuate, indeed as of 2019, only seven states even bothered with it. More states actually legally prohibit gun registration than require it. It clearly isn't needed for THIS right, if anything its purpose is to facilitate violation of the right.

I'm not concerned about, broadly, 'regulation' of the RKBA. I'm concerned about what might be termed "prior restraint", where the government says I can't do this thing which itself harms no one, because they think the prohibition might inconvenience somebody in doing something else that actually does harm. We never tolerate that for other rights.

I'm fine with the government saying I can't up and shoot you without a darned good excuse, or even go firing my gun in random directions. Anything that directly harms somebody, or has a high potential to do so. But your average gun control law restricts thousands of harmless acts for every wrongful act it inconveniences. Imagine that we passed a law prohibiting saying any epithet, purportedly in order to reduce resulting fights. Gun control laws are of that sort.

[WuzYoungOnceToo]

Hm. I don't think you can say licensing is equivalent to "granting permission" though.

No? So...

The law requires that you possess a license to do X.
You do not possess a license to do X.
You do X anyway.
You get caught doing X without the aforementioned license.
You are arrested and prosecuted for doing X without the legally required license.

How exactly do you characterize that as a license NOT being a legal grant of permission to do X?

[WuzYoungOnceToo]

How does licensing "infringe" on a right?

Or is that another part of 2A we conveniently ignore?

So you'd have no objection to licensing requirements for the free exercise of speech, religion, being the press, petitioning for redress of grievances, etc.?

[KHP54]

"being the press"???

No, being a modern corporation running some kind of printing or media entity is not at all what the first amendment is talking about.

"Freedom of the press" is most accurately paraphrased as "freedom to publish" and the lowliest, poorest individual citizen has that right every bit as much as it does Jeff Bezos or the New York Times Corporation.

[David Nieporent]

but you don't need your speech license to talk?

Have you never heard of parade permits?

[WuzYoungOnceToo]

Have you never heard of parade permits?

I have. Furthermore, I also know that they're not licenses to "talk", and are predicated on the fact that parades monopolize public resources like thoroughfares and create other issues of public concern.

[Brett Bellmore]

Parade permits permit you to monopolize a bit of public property for a while. You don't need them to just be present.

[David Nieporent]

Parade permits permit you to monopolize a bit of public property for a while.

So you're saying that there are some circumstances in which the government can require a license before you exercise a protected right?

[KHP54]

I know I should ignore any statement to begins "so you're saying...", on the grounds that it is extremely unlikely to be stated in good faith or be an accurate summary of what the other person is saying.

But just for the others here, let it be noted that the permission being granted with a parade permit is not permission to speak, it's permission to take over a public roadway or plaza and exclude others from it while your event is going on.

[Longtobefree]

These are natural rights, not civil rights.

[Currentsitguy]

DING, DING, DING, WE HAVE A WINNER!

Murdock v. Pennsylvania

"The privilege in question exists apart from state authority. It is guaranteed the people by the federal constitution." The state does not have the power to license or tax a right guaranteed to the people.

[Stephen Lathrop]

What was the privilege in question?

[WuzYoungOnceToo]

What was the privilege in question?

Google broken for you?

https://letmegooglethat.com/?q=Murdock+v.+Pennsylvania

[Brett Bellmore]

I guess this signals that when the time comes to challenge the practice of requiring people to obtain a license to exercise this right, and ONLY this right, no other, we're going to lose K's vote.

[Nisiiko]

Perhaps, but it probably depends on what the license requires. A $400 fee (like NYC's) and some stupid requirements like needing 5 "references" from the same county will probably fail.

[Dave_A]

Because of the language difference between the 1st and the 2nd.

One says 'shall make no law' the other says 'shall not be infringed.

It would, for example, be hard to argue that 'a free license obtainable from any city or county office in the state, or via the internet, requiring only a sworn-statement that you are not a felon or noncitizen & signature' is an infringement.

However, a $10k/yr license requiring 9wks of annual training and an intrusive background check would absolutely be one (ad-absurdum argument).

The question is where between those two extremes does the infringement line lie?

[David Nieporent]

The question is where between those two extremes does the infringement line lie?

They can always adopt Casey's undue burden test since abortion litigators will no longer be using it.

[CindyF]

Happy birthday and a big thanks to Justice Thomas!

[Martinned]

For the record, my view is that, just because a rule is bonkers, doesn't mean judges should pretend it isn't in the constitution.

[PeteRR]

Not a "rule", a constitutional right. The right to self defense and defense of others.

[Martinned]

Where does it say that?

[Brett Bellmore]

Well, it doesn't. It is, simply, a right to be armed, and being armed, one can naturally use those arms for any lawful purpose. But it is a right to be armed, period, not a right to be armed for some specific purpose.

[Martinned]

Just making sure we didn't forget we were supposed to be uncompromising originalists. (Speaking of which, don't forget to mention the militia!)

[Brett Bellmore]

Yeah, as the Miller Court held, that tells you what sort of arms are protected: Those suitable for military use.

Though I could argue that, once it's established you have a constitutional right to own an assault rifle and service pistol, banning any lesser firearm can't have a rational basis.

[Carl_N_Brown]

The militia clause is an example of why it is in the state's interest to respect the right of the people to keep and bear arms. It is not an exclusionary clause. It is one example.

[Martinned]

In other words, it's surplusage?

[Dave_A]

If we translate the 2nd to modern English, there would be a 'Because' at the beginning.

The militia clause explains *why* the right of the people to keep and bear arms shall not be infringed...

It does not limit that right to members of the militia - rather it seeks to maintain a wide population that could be quickly inducted into the 'militia' without the government having to arm/equip them (because such people would report with their personal arms/equipment if summoned - and in an era where troops made their own bullets over a campfire that worked even if no 2 weapons had the same bore diameter).

While this rationale isn't really viable in the 21st century (if your weapon doesn't fire NATO-standard ammo (9mm, 5.56 or .308) it's kind of useless for military purposes because the supply chain can't replenish your ammo supply), it is still the *law* in the 21st century, and new concerns (Self defense) have replaced liability for levee-en-masse militia service as the reason it should stay that way.

[Hey Skipper]

Dave_A, this needs to be printed on a card and handed to every nitwit looking to cancel the 2A through the "well regulated militia" dodge.

[Stephen Lathrop]

Hey Skipper — That does sound plausible, doesn't it?

You know why? Because neither you nor Dave_A are conversant with founding era history. In that context it is an awkward fit, like the fake quotations which pepper the internet, over the founders names, which any historian can recognize and dismiss on sight.

Of course, neither are the members of the Court, majority or minority familiar with that history. So why not? Make up a history which gets you where you want to go, read it into the case as if it were evidence, somehow introduced by the Court itself (how, without impropriety?), and have your celebration.

Meanwhile, those familiar with the historical record of the debates from which the Constitution emerged can sit on the sidelines and mutter to themselves. Power gets what it wants. If it wants to pretend principle, it can even do that. What a shame it is that legitimacy cannot be conjured in the same way.

[Bob from Ohio]

"neither are the members of the Court, majority or minority familiar with that history"

Neither are you. You are a photographer who used to work for a newspaper, not an historian.

[Joe_dallas]

Plenty of historical writings show 2a encompassed both a collective right for the common defence and the individual right.

A real student of history is very well aware of those historical writings - as compared to Stevens who made the astonishing claim that historical writings of the individual right never existed.

Numerous citations throughout those historical reference books
hallbrook
Malcom
to name just a few
many others cited in the Heller opinion.

[Stephen Lathrop]

Joe_dallas, that individual right debate? It is a red herring, heavily belabored by Scalia. Don't fall for it.

The crux of the historical debate has little to do with any distinction between individual and collective rights. The crux is a question where the right to keep a gun for self defense is protected—by the federal government, or by the states?

Overwhelmingly, the historical record supports state protection, and denies federal constitutional protection for a right of self defense with a gun. Note that does not say you may not own a gun. It does not say you may only use a gun in the militia. It says the federal constitution does not protect those things, but does protect your ownership of a gun for use in the militia. And nothing more.

For more, you must looks elsewhere. There is plenty to find elsewhere, among state constitutions and laws. And also among modern Supreme Court interpretations made either in disregard of history, or in defiance of it.

Speaking only historically—both explicitly, among state constitutions and laws; and by default, at the federal level—your right to own a gun, and how in addition to a militia purpose you are free to use it, remains a matter for state control. The historical record makes clear the founders expected states to decide those questions variously. If they did expect the federal constitution to govern anything except militia use, that expectation went unrecorded in any document yet known to history. Standard historical practice teaches that means it did not happen—until something to say otherwise turns up.

That is what history says. Against that historical record you have cited names of people who do not know how to reason historically, and who lack also comprehensive knowledge of the historical record. Scalia leads the list of those. Like all gun advocates, Scalia read the record to cherry pick it. He ignored every standard for proof of historical relevance for what he found. He thus misconstrued far more than he understood. His labors have proved adequate to convince only those who share both his preferred outcome, and his casual approach to historical method.

Of course, those flaws of historical practice only matter if you suppose history is crucial to vindicate your rights. Why suppose that? The fact is, Scalia's opinion, and also subsequent historically mistaken opinions which have built on his, still confer judicial protection for what you want.

Thus, the nation shall have an interval of governance under those present-minded interpretations. The nation will then decide according to experience whether it likes the results or not. If not, the nation will be at liberty to use the same method—basically politics—to reverse those decisions as was used to arrive at them.

The Supreme Court is not through with politics. Nor will it decide later that today's politics bind it not to do what tomorrow's politics will prefer. If that preference does happen to change, there will be no shortage of high-quality historical arguments to bolster a case that Heller and its offspring were wrongly decided.

[Joe_dallas]

Lathrop comment - "Overwhelmingly, the historical record supports state protection, and denies federal constitutional protection for a right of self defense with a gun. "

You claim to be a historian - yet you continue to pull the same stunt Stevens did in his Heller dissent which is to deny the historical writings encompassing the individual right and the right for self defense.

Halbrook, malcom and Scalia gave multitudes of citations - yet you continue to ignore.

[Joe_dallas]

Stephen Lathrop
June.23.2022 at 11:33 pm -"The crux of the historical debate has little to do with any distinction between individual and collective rights. The crux is a question where the right to keep a gun for self defense is protected—"

Seriously - are you now making the argument that the individual does not encompass the right to self defense - That makes the individual right meaningless. Par for the course for someone who cherrypicks which historical writing to acknowledge the existence - like like Stevens in his dissent

[Stephen Lathrop]

Joe_dallas — I do not claim to be a historian. I did get graduate historical training. I have never claimed to be a historian.

I cannot expect to teach you historiography in this comment. There are standards for historical relevance. Those are not satisfied by reasoning which asserts, "We are talking about guns, therefore everything I can find in the historical record about guns is relevant."

For example, if the subject is what gun rights the federal constitution and the 2A were intended to protect, protections set forth in state laws and state constitutions are irrelevant. Those records tell you what states protected, not what the federal government protected. If you had a citation from a constitutional debate which said otherwise, something like, "The federal government ought to do this like it was done in Pennsylvania," then that would establish relevance which is otherwise lacking.

Likewise, if you are trying to evaluate the founders intent at the time of the founding—or even the public understanding at that time—then a citation from a date 10 years later is irrelevant. Nobody at the time of the founding knew anything at all about what would happen 10 years later. On the same principle, no one would credit any notion you yourself might have about what will happen on any topic in the year 2032.

To insist on relevance is not a, "stunt." It is a precaution against inadvertently making up an imaginary past to justify some present preference. In fairness, in the just-released Thomas opinion he does openly assert that for lawyers citations to future dates are just fine and relevant. Historians would call that nonsense. If you do not want to make mistakes about what happened in the past, learn the historians' standards and stick to them. Like Scalia before him, Thomas is utterly clueless about the factual foundation of what it pleases him to call an argument based on history and tradition.

Reasoning about the past is a more complicated topic than you suppose. There are reasoning errors peculiar to historical thought that do not occur in any other kind of study—unless perhaps you count some of the paradoxes presented in science fiction about time travel. History is a reality-based activity in which people must systematically exclude from consideration the influence of massive context which affects their own thought. That context comes from the time interval preceding our own—and thus massively influential in our own thought—but post-dating the historical subject under consideration—and thus not influential in the slightest historically. Historical laymen, including almost all lawyers, never even think about that problem.

[PeteRR]

Where does it say it's a rule?

[Martinned]

Really? You wan't to have a semantics discussion about whether constitutional rights are "rules"?

[WuzYoungOnceToo]

Really? You wan't to have a semantics discussion about whether constitutional rights are "rules"?

The difference between a "right" and a "rule" are substantive and very significant. That you think it's just an issue of semantics makes you sound even dumber than we already know you to be.

[PeteRR]

The difference between rights and rules is not a semantic one.

[Brett Bellmore]

Rights are, essentially, a subset of rules. Essentially, rules of the form, "You must let X do Y!"

[WuzYoungOnceToo]

Rights are, essentially, a subset of rules. Essentially, rules of the form, "You must let X do Y!"

That's not correct. A right...especially an "inherent right" of the sort that is the topic of this blog entry...exists independently of any rule(s) that seek to protect it/enforce respect of it. As such, they cannot be a subset of something that they are completely separate and distinct from.

[Joe_dallas]

Stevens basically admitted that his dissent in Heller was based on fiction when he proposed an amendment to 2A with the explicit language that the right to keep and bear arms was limited to when serving in the militia.

[Joe_dallas]

Stevens's proposed 2A amendment - "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed."

[Currentsitguy]

Rights are inherent, changing or modifying the Constitution doesn't modify the inherent Right recognized. That can only place government in a state of Tyranny.

[Longtobefree]

To be effective in a militia, you have to shoot a couple hundred rounds a week.

[Abdul Abulbul Amir]

With some exceptions every male from 17 to 45 and all women in the national guard are in the militia. Training can occur after activation.

[Dave_A]

Exactly.
The original reason for the 2nd was to allow the government to muster a fighting force or law-enforcement posse without having to buy guns/equipment for them & with less training required before they could be fielded...

By ensuring weapons were legal to own and carry, the state ensured that 'all armed men must report to the town square at sunrise' would actually produce a useful showing.

It's aimed at the citizenry at-large (to prepare them for levee en masse originally, now for self defense) not just enrolled members of a militia.

[Brett Bellmore]

Almost, but not quite.

To be sure, the populace being armed and equipped does allow the government to muster a fighting force rapidly, and this was considered desirable. But you could accomplish that with, for instance, the Militia acts. It didn't require an amendment for the people to be armed if the government wanted them armed.

But... what if the government DIDN'T want them armed? What if the government DIDN'T want a free state to be secure, but instead had the aim of making the state unfree? It certainly wouldn't mandate the public be armed, and practice with those arms. Rather, it would discontinue militia training, and discourage ownership of firearms.

And, THAT is what the 2nd amendment aims to forbid.

To understand any amendment in the Bill of Rights, you have to forget the notion that the government is a force for good, and consider: "What if the government actually wants to do the wrong thing?" What if the state doesn't WANT freedom to be secure?

The 2nd amendment wasn't written to facilitate the militia system, exactly. It was written to prohibit rendering it impossible to raise a militia even if the government wanted it to be impossible.

[Stephen Lathrop]

Maybe that is why Washington and Hamilton thought colonial militias were so ineffective.

[Brett Bellmore]

Some of the colonial militias. Remember, Belesilles took that Washington quote out of context, that was part of his fraud.

[MoreCurious]

Oh, goody! More guns on the street. Just what we need so that manly men can feel even more manly.

[SMP0328]

So you think women don't own/possess firearms?

[Currentsitguy]

My wife would be very shocked to hear that.

[Dave_A]

He's going with the Freudian 'people buy guns to compensate for sexual inadequacy' nonsense...

[WuzYoungOnceToo]

Really? You wan't to have a semantics discussion about whether constitutional rights are "rules"?

I've always wondered what Freud would have said about people who's first thought it always about male sexuality whenever they hear firearms being discussed.

[Brett Bellmore]

"The representation of the penis as a weapon, cutting knife, dagger etc., is familiar to us from the anxiety dreams of abstinent women in particular and also lies at the root of numerous phobias in neurotic people."

[Currentsitguy]

That would presume that any existing restriction prevented someone intent on using one for nefarious purposes was somehow prevented from obtaining one. As for the rest of us, what difference does it make how many are armed?

[Longtobefree]

Well, it matters to one Supreme Court justice, because an armed man stopped another armed man from carrying out a planned murder.

[DJK]

I suggest you educate yourself with the literature on defensive gun uses. Those who were most primed to commit murder were already ignoring gun laws to do so. Allowing the law-abiding public to defend themselves is a good thing.

[Currentsitguy]

The inherent flaw is the belief that evil can somehow be curtailed or restrained by the force of law.

[Longtobefree]

Almost right; just drop the last two words.

[Brett Bellmore]

I strongly object to guns on the street; They make my morning commute bumpy, and are terrible for tire life.

[Mr. Bumble]

You know there would be a lot less "guns on the street" if existing laws were actually enforced.

[Kleppe]

I sincerely hope you stay mad forever.

[Michael Ejercito]

Just like we have more criminal defense lawyers on the streets?

[Carl_N_Brown]

Tennessee went shall-issue carry permit a few decades ago.
My home town paper for a time published the carry permit status of people arrested for criminal or reckless use of guns: they did not have permits.
Then an estranged husband went to his wife's workplace, shot her to death, and threatened her boss and coworkers. A customer shot the husband, wounded him, and detained him for arrest by responding officers.
The husband did not have a carry permit and was "going armed" illegally.
The customer did have a carry permit and was legally armed.
The paper stopped reporting on permit status in crime articles.

[Dave_A]

The other 44 states have not experienced any negative impact from 'shall-issue' concealed carry permits.

The main reason being that 'the people who commit gun violence' and 'the people who apply for carry permits' are non-intersecting groups.

[WuzYoungOnceToo]

Oh, goody! More guns on the street. Just what we need so that manly men can feel even more manly.

The insanity of mindlessly repeating the same childish argument ad nauseum no matter how many times it's proven wrong cannot be overstated.

[Ben_]

Every person is supposed to train to be a martial arts master in order to be safe?

[PeteRR]

He's advocating for rule by the strong and young over the old and weak.

[Ed Grinberg]

from NBC News:

Supreme Court allows the carrying of firearms in public in major victory for gun rights groups

No! This is a major victory for normal, law-abiding people, who will now be able to defend themselves from criminal scum (whom Democrats and "mainstream" media don't want to see hurt).

What can you deduce about someone who would rather expose innocent people to criminal scum than see the criminal scum get hurt?

[gVOR08]

You do realize it also makes it easier for the criminal scum to be packing?

[Kristian H.]

How much easier, since 'criminal scum' isn't normally deterred by laws, but by risk? That is, the risk of carrying a weapon MAY have gone down for them (but probably not as much as we'd like to believe), but the risk of using the weapon may have gone up.

[Carl_N_Brown]

Criminals don't apply for carry permits. The majority acquire their guns illegally anyway. They don't need permits to purchase, much less need permits to carry.

Antigun nuts are out of contact with reality.

Taking NY gun permits from "at discretion of authority" to "shall-issue" like 43 other states won't "[make] it easier for the criminal scum to be packing." They will acquire guns illegally and carry them without permits like they always have.

[Dave_A]

Data from the other 44 states says that the 'criminal scum' don't bother to apply for a carry permit...

So this ruling has no effect on them - they will keep carrying illegally.

[WuzYoungOnceToo]

You do realize it also makes it easier for the criminal scum to be packing?

That's like saying, "You do realize that drinking Gatorade gives you the power of invisibility?"

[Syd Henderson]

It also tells the cops who to shoot first.

[Kleppe]

Spare a thought for Rev. Kirkland today; he is realizing he was not in the mainstream after all.

[Joe41 2]

Never fear, the Rev log in this afternoon to fill out his bingo card of troll phrases like clingers and betters.

[DJK]

I put up the bat signal to him early in this thread. Was really hoping for some deranged screed. Alas.

[Aubrey LaVentana]

This town deserves a Better class of Clinger.

The Rev is not going to give it to us.

[Rev. Arthur L. Kirkland]

If you figure the six clingers on the Supreme Court are part of mainstream America, you are daft. Those conservative extremists have arranged a 25 percent approval rating for the Court -- 39 Republican, 13 Democratic -- which will establish a handy foundation for enlarging the Court.

Carry on, clingers. Your betters will indicate how far and how long.

[5.56]

Just like the approval ratings of Congress in the past two decades - a mean around 20% maybe - effected so much change in Congress.

Your prediction seems tendentious and wishful.

[Barry Sullivan]

You keep using the word "clingers" but I don't think you know what that word means. You seem to suggest that the pro-Second Amendment justices ("clingers") are some sort of dying gasp of public opinion. Yet, in 1986 there were 16 states that had outright bans on concealed carry of guns, only 1 state had
an unfettered right to carry a concealed gun, and only 9 states had a "shall issue" licensing regime to carry a concealed gun.

In contrast, today no state has an outright ban on concealed guns, 25 states have an unfettered right to carry a concealed weapon, and 17 states have a "shall issue" licensing regime for the same.

Objectively, you and your fellow petty tyrants are the "clingers" who are spitting into the winds of progress.

[5.56]

Here, take this upvo… oh. Feature not implemented. The only thing that keeps Kirkshits non-ego from melting down entirely.

[Abdul Abulbul Amir]

Granting carry permits virtually only to celebrities, cops, the filthy rich, and the politically connected is third world practice we can do without.

[Longtobefree]

Note the references to the "shall issue" states.

[Currentsitguy]

I am reveling in the tears of Kathy Hochul and her realization that us "peons" have the same rights as she and her powerful ilk have.

[Bored Lawyer]

But at least they banned bullet-proof armor. So NY is still safe.

[Rev. Arthur L. Kirkland]

You revel in her tears. Think of that as you lie in the back of an ambulance that is trying to get you to civilization for medical treatment from your betters before you expire in the bigoted, deplorable, uneducated, left-behind backwater in which you choose to live.

Guys like you are among my favorite culture war casualties, stomped by the modern, educated, liberal-libertarian mainstream.

[5.56]

"Think of that as you lie in the back of an ambulance that is trying to get you to civilization for medical treatment from your betters before you expire"

Yes, definitely lots of wishful thinking an narrative-engineering.

[Michael Ejercito]

Here is a dirty little secret.

Street thugs and gangbangers use civil rights protections to enable their crimes and escape punishment.

They peaceably assemble and speak to plan and prepare robberies and drive-by shootings.

They peacefully bear arms to and from the scenes of robberies and drive-by shootings.

They use their freedom from unreasonable searches and seizures to conceal evidence of their robberies and drive-by shootings.

They use their rights to a fair trial and due process to avoid guilty judgments for their robberies and drive-by shootings.

They use their right to be free from cruel and unusual punishment to avoid the punishment that they deserve for their robberies and drive-by shootings, even if they are judged guilty consistently with their other rights.

Given the above, who among us will still support the Bill of Rights?

[Joe41 2]

The explicit rejection of intermediate scrutiny is by far the most impactful aspect of this ruling. Intermediate scrutiny has been the go-to rubber stamp of the 9th circuit to bless off on all forms gun control the California legislator can come up with.

It's what Duncan and Frosh, covering assault and weapons and magazine bans, relied on.

I feel that the court doesn't have the political bravery to directly strike down liberal sacred cows like bans, and will GVR those back to the circuits, where there is a good chance they will be struck down.

After all, despite what senile Biden continually says,you actually could own cannons...

[Carl_N_Brown]

You can own a cannon today, if it's on the national firearms act registry and transferrable, or if it's a muzzleloading antique or replica there of, and you only use solid ball, no explosive shells.

[Dave_A]

Technically you can own explosive shells too, provided you pay a $200 tax on each one.

[Brett Bellmore]

And in a few years that $200 may be a trivial fraction of the inflation adjusted price.

[Currentsitguy]

Still can. I'd love to see someone bring one to a protest and watch the apoplexy as it's realized no crime is being committed.

[Brett Bellmore]

I've heard of cases where people legally open carrying were Swatted by gun control activists who were apparently convinced they MUST be breaking some law.

[Nisiiko]

Exactly. PRofessor Volokh wrote this years ago, and it bears repeating:

A constitutional right that can be trumped in some of its applications under intermediate scrutiny (or for that matter strict scrutiny) is a right, albeit a qualified one; consider, for instance, the right to engage in commercial speech, or the right to be free of sex discrimination. But a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.

This also reflects, I think, the fact that intermediate scrutiny (which requires that “the legislature’s policy choice substantially serves a significant governmental interest”), coupled with deference to the legislature’s factual judgments (“[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments”), essentially means per se validation of pretty much all gun controls that will be tested under such scrutiny. The legislature will always be able to assert a significant governmental interest in preventing crime, reducing the use of police resources, and so on, and will nearly always be able to plausibly argue that it has “weigh[ed] conflicting evidence” in concluding that the law “substantially serves” the interest. (Intermediate scrutiny without deference to legislative weighing of evidence might offer more protection, but that’s not the intermediate scrutiny being applied in this case.) Indeed, the same might even apply to strict scrutiny, except that courts might be more reluctant to read strict scrutiny as essentially eviscerating the right than they are as to intermediate scrutiny (and courts might be more inclined not to defer to legislative conclusions about facts under strict scrutiny).

https://volokh.com/2013/03/21/fourth-circuit-upholds-maryland-restrictive-licensing-system-for-gun-carrying/

[Brett Bellmore]

"I feel that the court doesn't have the political bravery to directly strike down liberal sacred cows like bans, and will GVR those back to the circuits, where there is a good chance they will be struck down."

Basically, the Court lacks the courage to strike down common violations of the right, but is willing to force the outlier jurisdictions to go where most states have already arrived. If your local laws are much stricter than the average states' you can probably expect them to fall in time, but if most states are violating the 2nd amendment in the same manner, the Court won't touch it.

[Aladdin's Carpet]

As someone who is generally more on the gun control side than many in my party, I dont, altogether, disagree with Breyer complaints, but ... I mean come on. He cites all these practicality issues, but its your job to do these analysis? Like, my job is too hard, is not an excuse! And he glosses over the fact that it is a constitutional rights and that overrides some of these practical concerns.

But more to the point, whenever it comes to an issue that Breyer politically agrees with, these issues seem to fade away! What about the practicalities of that Oklahoma case? Or on some of the social issues? Or voting rights? If you want to make a strong argument for defaulting to the legislature, sure!, but be more consistent about that.

If you want to advocate that judges don't default to the legislature and engage in all these tests, as Breyer does, then it is a bit weird and honestly transparently dishonest to argue you don't have the resources to do a test, therefore default to a legislature.

[Mr. Bumble]

How long before Dems start to call for court packing again?

[Martinned]

Why wouldn't they? The Republican court packing campaign clearly paid off.

[Currentsitguy]

When did the Court expand? Did I miss something?

[Dave_A]

He's another one of the 'GOP stole Obama's seat' folks....
Ignoring that it's Democratic stupidity (nominating Hillary) that resulted in the Trump presidency & 6-3 GOP court in the first place.

[Mr. Bumble]

You obviously don't understand Dem English.

[Currentsitguy]

No, guess I don't. The nuns had a way with rulers for people who didn't speak and write in grammatically correct, precise, clear, unambiguous English.

[Dave_A]

Republicans winning enough elections to control the court paid off.

That is not 'packing'.

In a world where Jim Webb, not Hillary Clinton, was the 2016 Democratic nominee (and the GOP still nominated Cheeto Jesus) it would have been Democrats adding up-to 3 new justices to SCOTUS.

And that would have been fair-and-square.

[WuzYoungOnceToo]

The Republican court packing campaign clearly paid off.

Your zeal to sound like a complete moron appears to know no bounds.

[Currentsitguy]

Keith Olbermann is calling for it to be dissolved outright.

https://twitter.com/KeithOlbermann/status/1539983585406484480?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet

[Rev. Arthur L. Kirkland]

Court enlargement . . . coming to a modern, decent America despite the whining of bigoted, uneducated, obsolete right-wingers destined for replacement.

[5.56]

Your coping-narratives seem to get louder in your head the more you find yourself on the losing end of recent court decisions. You are more reliably triggered than some of my rifles, buddy. 🙂

[Rev. Arthur L. Kirkland]

" How long before Dems start to call for court packing again? "

You will be powerless to stop it, much as you have been impotent in the settled-but-not-quite-over culture war.

Thank you, Republicans, for your continuing compliance with the preferences of the culture war's liberal-libertarian victors.

[5.56]

"settled-but-not-quite-over culture war."

You are SEETHING. 😀

"Thank you, Republicans, for your continuing compliance with the preferences of the culture war's liberal-libertarian victors."

Jesus Christ, what kinda dissociatives are you on? Is it a chemical called CNN or MSNBC?

[ReaderY]

What’s interesting about this case is not just its extension of Heller. It’s the rejection of the Court’s traditional levels-of-scrutiny categories (rational basis, intermediate scrutiny, exacting scrutiny, strict scrutiny) in favor of a completely different analysis framework. Under the framework, the Court doesn’t look at the state’s proferred interest and decide whether it’s rational, important, compelling, etc. Instead, it looks to see whether the state’s proferred interest is or is closely analogous to interests that governments historically asserted.

That’s a huge change in analysis. Although the court might limit the approach to the 2nd Amendment only, it potentialy has huge implications for way the court analyzes every constitutional right, potentially significantly cabining government’s ability to assert that it has a heightened interest in something. The heady days of only a couple of years ago when the court would act as if government has a compelling interest in things like providing subsidized contraceptives could be far, far behind us.

[Currentsitguy]

I can't see how that's a bad thing. The government has no interests outside of those of the people themselves and deference should always be on the side of rights, not restrictions.

[ReaderY]

It complements the draft Dobbs opinion. The two together would require both asserted rights and asserted heightened stste interests to be rooted in history, cabining both free-standing assertions of new rights and free-standing assertions of new compelling interests.

[Nisiiko]

I was thinking the same thing. As an example, I'm curious as to how Justice Thomas would weigh felon disenfranchisement (18 USC 922(g)(1)). The tradition would probably lean in favor of permitting it as applied to violent people, but NOT to people with 30 year old convictions for tax fraud. Where is the line?

[Brett Bellmore]

I believe that "felonies" were at one time basically all laws that could potentially be punished with the death penalty, right?

Wikipedia: Felony

"The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added."

Perhaps Thomas would be open to doing something about limiting loss of rights to offenses that meet this original meaning? But I doubt he'd have much company in fighting 'felony inflation'.

[ReaderY]

Poaching deer? Illegal fishing? Trespassing on parkland? Lighting an illegal fire? Hunting or carrying firearms or hunting implements while camouflaged?Any other of the Black Act of 1723’s 350 or so capital crimes?

[ReaderY]

That is, just as money inflation occurred in the past, felony inflation did too.

[Seamus]

Well, the 14th Amendment explicitly contemplates deprivation of voting rights "for participation in rebellion, or other crime", without limiting it to felonies.

[Aubrey LaVentana]

"a huge change in analysis"

Agreed. You can kinda hear a very heavy door clanking shut, far away. Tiers of scrutiny, like qualified immunity.

[DaveM]

Is there a version of the US where I would think I need to own a gun for self-defense (and, more to the point, the ammunition for that gun)?

Five years ago, I would have said absolutely not.
Today I'm saying maybe yes, but still, no.
Tomorrow? The trend is not favorable.

What will turn the tide? If I keep reading news that civil agencies such as the IRS are buying up all the available ammunition and that criminal cartels are in charge of our borders.

When I don't believe my interests will be protected, in other words. Rocket science, it ain't.

[Aunt Teefah]

This is slightly afield from the thrust of the ruling, but I was struck by the opinion's use of the qualifying phrase "law-abiding citizen", and particularly "ordinary, law-abiding citizen." The latter seems to be an oxymoron, as the average (ordinary) citizen is plainly not *fully* "law-abiding". Sure, most people don't violate the law in a manner that is violent or malicious, but I recall some libertarian scholar having written that the average American commits three felonies a day. And even if we're only talking about convictions, many if not most people have a traffic violation of some kind.

So I'd be curious to know if the phrase "law-abiding" is a term of art with a defined meaning, or if it is just rhetoric?

[WuzYoungOnceToo]

The latter seems to be an oxymoron, as the average (ordinary) citizen is plainly not *fully* "law-abiding".

It only seems to be an oxymoron if you read into it verbiage that is not there. He didn't say, "fully law-abiding", "unerringly law-abiding" or any other similarly extreme and unrealistic form of the label. If you refer to someone as a "calm and easy-going" person, are you claiming that they NEVER have moments of anger or other strong negative emotion? Or are you just saying that they are generally of a "calm and easy-going" disposition, with the aforementioned moments being both the exception and unintentional, not to mention usually minor in seriousness?

[Aubrey LaVentana]

"the average American commits three felonies a day."

Silverglate, iirc.

And this line of argument is a recurring crutch for our esteemed Rev Arthur. We're all 'felons in fact', or at least all us clingers. Not the Betters, mind you, like the Rev.

[Stephen Lathrop]

Rhetoric? It is reification. What are we to make of a purported legal ruling that posits two classes of citizens, to be treated differently under the law?

Worse, the point of that reification is to exclude consideration of guns themselves as objects of legal regulation. In so doing, the ruling precludes by its premise any realistic prospect of preventing gun violence before it occurs.

The non-law-abiding may be punished, but only after they commit violent offenses. All others are presumed perpetually law-abiding, with their rate of violent offense set tacitly at zero.

To treat the, "law-abiding," that way turns into unjustified punishment every requirement to obey generally applicable laws which purport to apply alike to everyone. Thus are such laws precluded from policy consideration, and thus are also precluded any benefits in prevented violence such laws might deliver.

Justification for that gets offered in terms of how uniformly law-abiding the so-called law-abiding gun owners are—how seldom they offend, how rare is the harm they deliver. Experience suggests that presumption is absurd, but grant it for the sake of argument.

Guns often outlast their purchasers. Every new gun purchased—whether by someone law-abiding or otherwise—adds an increment of enduring risk against the peace and safety of the public. Who may someday get possession of the gun, or indeed who the original possessor may become over time, are at the time of purchase utterly unknowable.

A policy to arm by right every non-criminal is inevitably a policy to arm willy-nilly the feckless, the insane, the psychologically aggressive and overbearing, the alcoholic belligerents, the medically incompetent, the pathologically fearful, and an array of self-deluded fantasists who long for self-dramatization as public heroes.

Some people are far less competent than others to manage guns safely, however equally law-abiding they may be presumed. All gun owners discover insufficient competence if challenges increase without limit.

All the shootings which happen must be accounted for by all the guns there are. Even excluding suicides, the number of people shot annually—fatally or not—is currently in the vicinity of 100,000+ nationally. What is the service life of a gun? Is it 50 years? More? Whatever it is, statistically each gun gets its share of all the shootings which accumulate during its service life.

Do the math yourself. Sum the annual shootings during a typical gun's service life, and divide by an average number of guns. You will discover that considerably more than 1% of all guns—whether originally purchased by the putatively law-abiding, or by others—will eventually be used to shoot someone.

Because gun owners are considerably less numerous than guns, the implications for what percentage of gun owners are destined to shoot someone are larger and more disturbing. All that is before factoring in suicides.

Based on current numbers of gun owners, and current rates of gun injuries, it is not unreasonable to suppose that something like 2% (perhaps more) of gun owners are destined at some time during their gun-owning lives to shoot someone. All that keeps the number that low is inclusion of the, "law-abiding," gun owners in the calculation with the others. But we have to do that, because we cannot really know, over a lifetime, which will be which. To take the population as a whole is the simplest choice.

What fraction of the public really think a 2% rate of gun owners who shoot other people would be judged convincingly, "law-abiding," or a reasonable risk for a society to take? I suggest it would be quite difficult to show statistically (even with suicides excluded) that the rate of shootings by gun owners during their lifetimes is much less than 2%. I think it is likely higher, but to know for sure we would need to know how many guns per owner is typical, and that is unknown.

When you try the math for yourself, see what it would take to make the rate much lower than 2%. If you think at first glance that seems unreasonably high, note that you are probably accustomed to statistics figured annually, and this approach uses a longer time frame—a time frame commensurate with the service life of each gun.

Arguably, that is a more intuitive way to estimate the risks of particular gun policies: total risk over time, figured gun-by-gun, or gun-owner by gun-owner. Because of the result it will deliver, I do not expect that method to be popular among pro-gun advocates.

If you do not like it, explain what is wrong with the method. I suggest it is a method which shines a harsh light on the shortcomings of annual statistics as a measure of the risks created by a steadily accumulating supply of long-lived guns. They are destined ultimately to fall by happenstance into the hands of the law-abiding, or the non-law-abiding—two groups which gun policy cannot even reasonably hope to distinguish over short time intervals, let alone much longer ones.

[Smith_FT_MI]

I happened to come across the following in one article on the decision:
“The Supreme Court’s decision will deepen the crisis of gun violence in NYC and beyond,” wrote Rep. Ritchie Torres, D-N.Y., who represents part of the Bronx. “Striking down the proper cause requirement, as SCOTUS has done, means allowing the AVERAGE person a right to carry a gun in public, even in a city as densely populated as NY.” (Emphasis supplied.)

Query, is this an accurate characterization of what are "betters" think? We peons should not be allowed this right but only our "betters". I imagine Rev K wholly agrees ...