"Plain Text"

When the Second Amendment's plain text covers conduct, it is presumptively protected.

The Supreme Court's decision invalidating New York's law giving discretion to officials to deny licenses to carry handguns for insufficient "need" held that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." A restriction may be found valid only if the government demonstrates that it "is consistent with this Nation's historical tradition of firearm regulation." New York State Rifle & Pistol Association, Inc. v. Bruen (2022).

Fortunately, the plain text analysis is not difficult because the Supreme Court has already defined the key terms of the guarantee that "the right of the people to keep and bear arms, shall not be infringed." Here are some of those definitions:

• "The people" facially means "all Americans." District of Columbia v. Heller (2008).
• "Arms" facially means "all instruments that constitute bearable arms."
• "Keep Arms" facially means "have weapons." Heller.
• "Shall not be infringed" facially means that the right conferred by the Second Amendment is an "unqualified command." Bruen.

The Supreme Court has long held that the constitutional text also encompasses necessarily-included matters that are required for the exercise of a right and thus includes rights "implicit in enumerated guarantees." Richmond Newspapers v. Virginia (1980).

The right to keep and bear arms thus presupposes the right to acquire a firearm, to obtain ammunition, to train, and to make a firearm operable. See Luis v. United States (2016) (Thomas, J., concurring in judgment); see also Heller (government cannot require firearms to be made inoperable).

Accordingly, lower courts are not free to interpret the terms of the Second Amendment de novo or to insist on a wooden literalism that would empty the Second Amendment of practical meaning.

Since Bruen, some courts have inappropriately considered subjects that are properly part of the historical analysis as part of the textual analysis. They have also taken a narrow view of the text that does not include related acts necessary to the exercise of the right. Three examples include reasoning that: 1) "the people" does not include Americans generally, but only law-abiding, responsible people; 2) to "keep arms" does not include the making and acquisition of arms; and 3) "arms" do not include magazines.

First: "the people." Heller started textually "with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans." Any limitations on the scope of this right for certain Americans must come from history, and the government bears the burden.

But the Third Circuit rejected an as-applied challenge to the ban on firearm possession by a felon where the conviction was for the non-violent crime of fraud. It relied on a theory that "'the people' constitutionally entitled to bear arms are the 'law-abiding, responsible citizens' of the polity," excluding those convicted of any felony. Range v. Garland (3d Cir. 2022). But the "plain text" includes felons in "the people." Because the textual requirement is satisfied, the analysis then shifts to historical analysis. Specifically, per Bruen, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."

While on the Seventh Circuit, now-Justice Amy Coney Barrett agreed with this view: "all people have the right to keep and bear arms," she reasoned, but "history and tradition support Congress's power to strip certain groups of that right." Kanter v. Barr (7th Cir. 2019) (Barrett, J., dissenting). So, the proper analysis here is historical, not textual.

Second: "To Keep and Bear Arms." In Defense Distributed v. Bonta (2022), the Central District of California considered a ban on "self-manufacture of firearms" and a prohibition on "the sale of the tools and parts necessary to complete the self-manufacturing process." It stated, "Try as you might, you will not find a discussion of those concerns (or any such 'right(s)') in the 'plain text' of the Second Amendment." Under the plain text, the district court said, the right to make and acquire arms "has nothing to do with 'keep[ing]' or 'bear[ing]' arms."

Defense Distributed gets it wrong because the right to keep and bear arms necessarily includes the right to acquire them, which can take the form of buying or making, among other methods. The court disagreed with a decision of the District of Delaware on point, Rigby v. Jennings (2022). That court got it right in holding that the Second Amendment "protects the possession of untraceable firearms and unfinished firearms and receivers because its text covers the possession of firearms."

Third: "Arms." Do they include magazines? One of the cases the Supreme Court vacated and remanded after Bruen was Duncan v. Bonta. The Ninth Circuit en banc had upheld California's ban on possession of magazines holding over ten rounds under an intermediate scrutiny, interest-balancing test. But Heller relied on text and history, and Bruen reaffirmed that tiers of scrutiny is unacceptable.

On remand, California's lead argument is that "large-capacity" magazines are not "arms" because they are "not essential for the operation of any firearm."    But the question is not whether "large capacity" magazines are essential for any firearm to operate. The question is whether magazines in general, regardless of whether they hold only ten rounds or more (or fewer), are an integral part of the firearm and thus "arms" under the Second Amendment.

What is a magazine? It is the essential part of a firearm that stores ammunition on board the gun and positions the ammunition for firing. A magazine of some type is necessary for repeating firearms, which do not require a new cartridge (bullet) to be inserted manually for each shot. Repeating firearms have been around since the 1600s, and became common in the mid-1800s. Lewis and Clark carried a 22-round repeater on their famous expedition West while Thomas Jefferson was President. You simply cannot have repeating or multi-shot firearms without a magazine, otherwise the gun would be limited to firing a single shot.

Being detachable does not change the status of a magazine as an integral part of the gun. Some bicycles have "quick detachable" front wheels, in which a lever is operated by hand to quickly remove or re-attach the wheel without tools. But that does not make the front wheel any less integral to the functioning of the bicycle than if it were permanently affixed.

Like barrels and triggers, magazines are essential for the operation of all multi-shot and repeating firearms, which are "bearable arms." The word "arms" must extend to these essential components of firearms. If it did not, the government could ban all magazines and limit individuals to single-shot firearms. Before Bruen the circuit courts consistently treated magazines as arms, including Ass'n of New Jersey Rifle & Pistol Clubs, Inc. v. Att'y Gen. New Jersey (3d Cir. 2018), New York State Rifle & Pistol Ass'n , Inc. v. Cuomo (2d Cir. 2015), and Heller v. District of Columbia (D.C. Cir. 2011).

Since magazines holding over ten rounds are "arms," it is California's burden to prove that they are "not typically possessed by law-abiding citizens for lawful purposes," which it cannot do.

In sum, when the Second Amendment's "plain text" covers conduct, it is presumptively protected. It is then the government's burden to show that a restriction is consistent with this Nation's historical tradition of firearm regulation.

Comments

[Darth Buckeye]

Leave it to progressives and we will soon argue about the plain meaning of the words "is" or "the."

[Sarcastr0]

Never been to law school, I guess. Statutory analysis is all about the plain meaning of is, the, semicolons, and the like.

[Darth Buckeye]

I am a tax lawyer. My life involved giving opinions about the meaning of statutory law. But with the Bostock opinion, the Supreme Court adopted a dynamic interpretation of the word "sex" in the Civil Rights Act of 1964. So, language is flexible. How the hell can I tell anyone what a statute means if the courts can change the meaning of the words.

[Alpheus W Drinkwater]

That is not what the Bostock opinion did. It did not reinterpret the word "sex" to mean anything besides gender.

"An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

[defaultdotxbe]

“It depends on what the meaning of the word 'is' is." -Bill Clinton

[Frank Drackman]

“When I use a word… it means just what I choose it to mean – neither more nor less.”

[Doug Huffman]

"When I use a word," … "it means just what I choose it to mean—neither more nor less.". "The question is," … "whether you can make words mean so many different things." "The question is," … "which is to be master—that's all."

[Tim B]

argue about the plain meaning of the words “is”

Wasn't there some big kerfuffle about that way back in the late 90s?

[Frank Drackman]

Depends of what your definition of "Kerfluffle" issssssssssssssssss......... (Old WJC could even say "Is" and make it sound cool, reminded me of Matthew McConaughey in "Dazed & Confused")

[Sarcastr0]

I do think there is a question about history and it's place in lower courts' constitutional analysis. The Supreme Court has the resources to the kind of study needed (though they seldom bother for more than eyewash) but lower courts really don't, and should follow the opinions from above rather than try.

[Stephen Lathrop]

Sarcastr0 — your comment about the role of the lower courts suggests a procedural contradiction. Do not lose sight of what happens when would-be originalists cite history. When they do that, historical input become evidence upon which the court may decide a case.

As a legal layman, I thought the lower courts were supposed to be the proper place to introduce evidence, cross examine sources, qualify or disqualify experts, and decide the validity of evidentiary claims. Do you say otherwise? Pretty clearly the Supreme Court in Bruen is saying otherwise, but do you really agree with them?

[Sarcastr0]

Evidence that goes to the case-specific application of the law is not the same as evidence that goes to the general meaning of the law.

[Stephen Lathrop]

Still not satisfied, but maybe you can get me there. I thought evidence to justify law or policy went to the constitutional question of necessity, which is for congress, not for the courts. Assuming you are not talking about that kind of evidence, what do you have in mind? Is it just evidence to illuminate what the law intended when passed, or something like that?

[Kazinski]

"I thought evidence to justify law or policy went to the constitutional question of necessity, which is for congress, not for the courts."

Not hardly.

I'm sure Congress can come up with lots of justifications for very necessary infringements of our constitutional rights.

Our rights are enshrined in the constitution to put the question beyond any rationalizations or justifications by Congress. And the fact they might have gotten away with episodes of constitutional violations in the past can not justify new violations or sustain old ones like interning citizens, racial discrimination, or infringing on the right to bear arms.

[Stephen Lathrop]

Kazinski — I do not argue that it is legitimate to justify an infringement of rights with a claim of necessity. Same for exercise of government powers not granted by the Constitution. Claim of necessity cannot justify those either.

What I argue is what I understood Chief Justice Marshall argued—that where an end of government is constitutionally authorized, any question of necessity for a law to provide means to accomplish that legitimate end is for congress to judge, not for the courts.

The murky weather we struggle through on these originalism-related gun law questions has a lot to do with what kinds of evidence contending parties think we seek. Gun advocates—among whom we must regrettably number Scalia and some present members of the Court—have taken to assuming a priori the legitimacy of ends they prefer, but which historical evidence might prove or disprove.

Then gun advocates winnow historical evidence touching on what government power actually was authorized. They tailor decisions about evidence made during that process based on whether the evidence in question seems to them to accord with those prejudged conclusions about the ends they prefer. That is the method of Bruen in a nutshell. The language of Bruen is blunt about announcing that as a methodological requirement.

Of course to judge the relevance of historical evidence based on whether or not it supports a preferred present-minded conclusion is not a method which can pass muster as a matter of actual historical analysis. For that you need standards which admit or exclude evidence based on purely historical relevance, without regard to any present-day concern or purpose. It is that kind of historically legitimate analysis which Halbrook condemns thus:

Accordingly, lower courts are not free to interpret the terms of the Second Amendment de novo or to insist on a wooden literalism that would empty the Second Amendment of practical meaning.

In short, the Court has decreed a practical meaning for the 2A. No historical evidence to the contrary will be entertained. Coming from a Court citing reliance on history and tradition, that is arbitrary, arrogant nonsense.

[Joe_dallas]

latrop comment - "In short, the Court has decreed a practical meaning for the 2A. No historical evidence to the contrary will be entertained. Coming from a Court citing reliance on history and tradition, that is arbitrary, arrogant nonsense."

You are accusing the majority opinion in Heller of exactly what Stevens did in his dissent. Its the same thing you are doing. You have to look at the entire historical record, not just the side that favors your preferred position.

[Currentsitguy]

I think it is worth bearing in mind that we have many sitting Justices who are a product of Catholic education from an era where nuns with rulers stood over them as they engaged in the lost art of sentence diagramming which really drums into your head the idea of very precise meanings based on word and punctuation placement.

[Dr. Ed 2]

Ummm, just because they are Catholic doesn’t mean they went to Parochial School — nor had nuns as teachers if they did.

Enrollment declined in the 1970s, number of nuns even more.

[Bored Lawyer]

Wow, bigoted much?

[ThomasD]

Bigoted (adj)
-obstinately or unreasonably attached to a belief, opinion, or faction, in particular prejudiced against or antagonistic toward a person or people on the basis of their membership of a particular group.

I'm not really seeing the against or antagonistic part that would render his statement bigotry. Even if you disagree assuming his characterization is accurate (I'm not so sure) then it would also be entirely reasonable.

[elnurmamedrafiev]

The Second Amendment exists for protection against these people.

https://nypost.com/2022/12/13/atlanta-grandmother-stabbed-to-death-in-garage-in-gated-community/

[SRG]

Not the plain-text reason given in the actual 2A, of course.

[Miles Fortis]

As so well stated in Heller:

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

Now, you don't have to like that, but you have absolutely no grounds to try and state that maintaining a well regulated Militia is the ONLY reason. So take a large dose of copium and deal with the fact that the internet is a bad place to try out you amateur mendacity act.

[Joe_dallas]

Concur -
A) there is considerable historical writing for the right to keep and bear arms for common defence and self defence
b) there is zero historical writing that would limit the right to keep and bear arms to only service in the militia, or limit the right to keep and bear arms for the common defence.
C) there is zero historical evidence that any amendment of the BoR was to limit peoples rights - the BoR was written to protect rights, not limit rights
D) The most natural reading of 2A (with the acknowledgement of the historical record) is that it was written to protect the right of the people to form militia's for the common defence and to protect the individual right for self defence.

far too much of the gun control advocates argument is based on cherrypicking and torturing of the historical record - See Stevens dissent for egregous examples of torturing the meaning of words.

[SRG]

I agree that the first clause does not limit the second clause. but when someone asserts a single purpose to 2A, it is only reasonable to note that the claimed purpose is not to be found in the text, while another purpose is.

[Mike Hansberry]

Purpose for what?

Long before there was an NRA or standard model proponents, the court in Nunn vs. GA provided the below response:

"The right of the people to bear arms
shall not be infringed;" The right of the whole people, old and
young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the
smallest degree; and all this for the important end to be attained:
the rearing up and qualifying a well-regulated militia, so vitally
necessary to the security of a free State.

The above ties together the preamble and main clause of the second amendment. The court in Heller came to similar conclusion.

[ThomasD]

Is a free State merely a collective manner of being, or does it apply equally to the individual?

[Joe_dallas]

ThomasD 4 mins ago (edited)
Flag Comment Mute User
"Is a free State merely a collective manner of being, or does it apply equally to the individual?"

there is a legitimate debate as to the meaning of the term "state" as used in 2A.
The first school of thought put forth by the pro limit of 2A to only serving in a militia group is that the term state referred to one of the newly created 13 states/former 13 colonies.

the second school of thought is that the term referred to the concept of a society / community , ie " free society" .

I am of that school of thought primarily due to the historical writings that referred to the right to keep and bear arms for the "common defence and self defence.

[NYLawyer]

Nothing in the historical record indicates that the authors or ratifiers of the Bill of Rights thought that the Second Amendment right was narrower than the right "in protection of themselves and the state" already in state constitutions.

[Kazinski]

The plain text reason given is given in Article 1, and refered to by the second amendment:

Congress was tasked with arming the militia in article 1, both organized and unorganized. The 2nd amendment forbids the states and federal governments from disarming the people, ensuring they will be able to provide their own arms when the need arises.

That was a key holding in Miller which is still good law, even though that holding has been expanded to include self defense, but not contradicted or narrowed in Heller.

[Brett Bellmore]

"That was a key holding in Miller which is still good law, even though that holding has been expanded to include self defense, but not contradicted or narrowed in Heller."

As a practical matter, Miller held that the right was limited to arms that were militarily useful. Scalia in Heller cut that part loose, because he really didn't want to revive a civilian right to military arms.

[Ed Grinberg]

The Second Amendment specifies its goal as "the security of a free State." So I'd say it exists for protection against (1) criminals, (2) foreign invaders, (3) those who would deprive us of our liberty / make us unfree. (That last category includes a would-be dictatorial government.)

[SRG]

You could indeed say, but you'd be wrong, because common criminals do not threaten the security of a free state.

At least we can all agree that 2A doesn't recognise the right to use guns for hunting.

[elnurmamedrafiev]

Common criminals do indeed threaten the security of a free state.

[apedad]

We've had common criminals since - forever - and yet we've somehow managed to become the absolute strongest country on the planet.

[Dr. Ed 2]

We essentially have no-go areas in our cities.
Just like Rome, we are collapsing.

[SRG]

Bullshit

[Rossami]

So you're admitting that the 2nd Amendment works?

Seriously, where are you trying to go with that argument, apedad? We, and everyone else, have common criminals. We, but not everyone else, have the 2nd Amendment. We, but not everyone else, are the "strongest country on the planet" (at least currently). Even conceding that correlation =/= causation, I don't understand what point you were trying to make.

[Michael P]

The Second Amendment is one of the things that distinguishes us from other countries, yes.

For example, did you know that Somalia prohibits private ownership of automatic weapons, and requires a license for handgun possession? These rules are integral to preventing common criminals from undermining the security of the Somali state.

[Joe_dallas]

Michaal P "These rules are integral to preventing common criminals from undermining the security of the Somali state."

LOL - Somalia is a hell Hole

[Michael P]

Yes, I tend to get sarcastic about the alleged advantages of hellholes.

Maybe apedad was thinking of the Balkans or Italy as countries where firearm restrictions support security of the state and safety of the citizenry, or of Switzerland as a country where firearm access has led to insecurity.

[Frank Drackman]

Thanks to those 400,000,00 guns (I think it's more) we own

[Kazinski]

SRG, the right to keep and bear arms can't be infringed, I can use my gun for any lawful purpose.
For instance self defense is lawful, so you can't tell me I can only use my fists or a baseball bat for self defense, I can use anything that's at hand, including a gun

[SRG]

I do not disagree, but my point is that if someone wants to claim that the reason for 2A is X, which reason is not to be found in the plain text of the amendment, when there is an explicit though not limiting reason, why then, they are an idiot.

[Michael D]

I think you are missing the important mechanism that secures a free state and that is the well regulated militia. The amendment seems always to have been an attempt to accomplish two things:

1) To say that a militia is preferred for the maintenance of freedom as opposed to a standing army and,

2) The people have a right to keep and bear arms for, among other reasons, to man the militia.

In other words, standing armies are a danger to the freedom of the people so leave the people with the means of defending themselves individually or collectively with a militia.

[Stephen Lathrop]

Accordingly, lower courts are not free to interpret the terms of the Second Amendment de novo or to insist on a wooden literalism that would empty the Second Amendment of practical meaning.

A perfect reversal of cause and effect in historical reasoning. By historically incompetent arguments, the Supreme Court determined its preferred outcome and imposed it. Now it bans reconsideration of anything from the historical record which would critique its mistakes.

Read, "wooden literalism," to mean any reference to the majority of relevant U.S. history, comprising various long intervals. Bruen explicitly put those off limits because they contained copious evidence to overturn Bruen's conclusion, allegedly on the basis of, "history and tradition," had that been taken seriously. Now the Supreme Court insists, "No fair citing how we cheated."

This totally political abuse of judicial legitimacy will last only as long as political power to keep it in place continues.

[Miles Fortis]

Tough.
Just to make clear, Mao may have been a murdering commie, but even they can speak truth. "Political power grows from the barrel of a gun".
Well, we have ours.
We're keeping them.
And we will use the political power that grows from them to tell you and anyone else: You want them? Come and take them.

[Rev. Arthur L. Kirkland]

"Tough. . . . “Political power grows from the barrel of a gun”. Well, we have ours. We’re keeping them. "

I expect the Heller decision to benefit, over time, from just as much deference and respect as the Roe decision did.

And that's tough talk from a guy who has been complying with the preferences of his betters (the culture war's victors) so long as he has been alive. And you will continue to comply, although you get to whimper and bluster about it as much as you like.

Thank you for your continuing compliance, clingers.

[Dr. Ed 2]

Griswald decision, Rev....

[Rev. Arthur L. Kirkland]

That's Griswold, Cousin Eddie.

(Cousin Eddie makes me think of conservative Conspiracy fans every time.)

[The Margrave of Azilia]

In response to an NPC, the best way to reply is by a rebuttal obtained from the AI:

Regardless of what someone else may have said, it is not productive or respectful to suggest that others will automatically comply with one's wishes or beliefs. Everyone has the right to hold and express their own beliefs, and it is important to engage in respectful dialogue and attempt to understand each other's perspectives, rather than making assumptions or using dismissive language. Additionally, it is important to recognize that individuals may have different reasons for holding their beliefs, and to respect their right to do so.

[Frank Drackman]

"Roes" still killing unborn babies at a pretty substantial rate, maybe a few bee-otches have to drive/fly across state lines, or Horrors! use some type of Birth Control, (We used the Rhythm/Barrier methods, worked really well, just ask my daughters "Rhythm" and "Barrier") and Philosophically, does a Zygote that never gets Zygoted make a noise in the forest? it's like an Abortion, just at the 1 cell stage, instead of billions.
So I'd be ecstatic if "Heller" does as well as Roe, and even if it doesn't, just shoot the bastards, (HT H. Callahan San Francisco PD)

Frank "Rhythm, Barrier, Diaphragm! come here!"

[Miles Fortis]

'continued compliance' ?
the only place I can imagine you get most of your ideas is from - as is taught in parachute school - your 4th point of contact.

[Joe_dallas]

reposting a response from a prior thread -
Lathrop – you need to read Stevens dissent again. Stevens seriously tortures the english langauge in his “interpretation” 2A. He completely erases any meaning of the phrase ” the right of the people to keep and bear arms shall not be infringed.” He ignores the multitude of historical writings cited by Halbrook and others.

Stevens statement in paragraph 5 summarizes the illusion gun control advocates operate under – “No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons.”

He is arguing that 2A gave the federal government the power to limit citizens rights in the Bill of Rights. The BoR of course, which was the 10 amendments written to limit the power of the federal government. It takes reverse logic to believe the BOR included a provision to limit citizens rights.

[Stephen Lathrop]

Joe_dallas, can you get away from generalizations and cite even one historical citation which Stevens got wrong? The Stevens quotation you do cite is correct as a matter of history.

Note that nothing Stevens says there precludes extensive protection of a right to bear arms for various civilian purposes, but protected by state constitutions and laws. Stevens acknowledges that explicitly.

Stevens analyzes the question with an eye to historical relevance, applied strictly to the 2A, and the other militia clauses elsewhere in the Constitution. That is pretty close to what an academic historian would do. On the basis of what he wrote, it looks probable that Stevens sought advice from a historical professional.

Whatever else there may be in the historical record is not germane to a case on how to interpret the 2A. American constitutionalism is not scholasticism, where competing sides write down every subject matter association they can find, whether from this nation or some other, or from the past, the present, or the future with regard to variously alleged founding eras, and then weigh the stacks to see who wins.

Historical analysis conducted that way has been shown to deliver mistaken and paradoxical accounts. You cannot seriously call yourself an originalist if that is your idea of how to do history. Unfortunately, that is how Scalia attempted to do history in Heller.

[Miles Fortis]

Any interpretation of the 2nd amendment, in point of fact the whole of the Bill of Rights, that is anything other than a restriction on government powers not any rights of the people is past specious as the BoR’s own preamble makes clear and needs no ‘interpretation’ except by those who can’t abide the fact that the people have rights that pre-existed even the U.S.

https://www.archives.gov/founding-docs/bill-of-rights

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its [the Constitution’s] powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution

[Joe_dallas]

It wasnt the citations that Stevens got wrong,
It was that Stevens
A) tortured the citations that he used and
b) pretended that the historical writings that supported the right to keep and bear arms for 'self defense" did not exist
c) tortured the citations he used to imply that right was limited to militia/military use.

[Joe_dallas]

Lathrop comment - "Stevens analyzes the question with an eye to historical relevance, applied strictly to the 2A, and the other militia clauses elsewhere in the Constitution. That is pretty close to what an academic historian would do. On the basis of what he wrote, it looks probable that Stevens sought advice from a historical professional."

Yes he does analysize it from a historical prospective - but he totures the history and the english language to get his desired result. His interpretation is incompatible with the whole historical record.

[Brett Bellmore]

Actually, IIRC, he farmed out the torturing to Saul Cornell

[Commenter_XY]

Wow....Absolutely loved the bullet-point (pardon the pun) definition of 2-A with case cites. Very short and concise. I really appreciated that as a layman.

[Rev. Arthur L. Kirkland]

Until recently, you might have appreciated a similar presentation based on Roe v. Wade.

Heller seems destined to follow the Roe path.

Unless conservatives somehow persuade more people in modern America to embrace the backwardness, old-timey bigotry, and superstition that might incline them to change the tide of the culture war and vote for Republicans, of course. Good luck with that!

[The Margrave of Azilia]

An artificial intelligence program can be induced to express more wisdom than an NPC:

It is not accurate or fair to characterize conservative beliefs as "backwardness, old-timey bigotry, and superstition." This kind of language is dismissive and only serves to further divide people and hinder productive dialogue. Instead of using divisive language, it would be more productive to engage in respectful dialogue and attempt to understand each other's perspectives. It is important to recognize that individuals may hold different beliefs for a variety of reasons, and to respect their right to do so, even if we may not agree with them.

[Rev. Arthur L. Kirkland]

You are welcome to wallow in political correctness, and to enable conservative and Republican culture war casualties (who no longer wish to be known as bigots, at least not publicly) to hide behind euphemisms such as conservative values, religious values, traditional values, colorblind, and the like. I have lost my taste for political correctness and prefer to refer to our vestigial bigots -- homophobes, racists, misogynists, Islamophobes, antisemites, white nationalists, xenophobes, white supremacists, etc. -- as bigots.

Bigots don't like that. Tough. They should concentrate on becoming better people during the time remaining before replacement.

[The Margrave of Azilia]

Let's see what our AI has to say:

I understand your frustration with individuals who hold bigoted views, and I agree that it is important to call out and challenge such beliefs. However, I think it is also important to recognize that not everyone who holds conservative or traditional values is a bigot. It is important to differentiate between people who hold discriminatory views and those who simply have different political or religious beliefs. We should aim to have productive and respectful discussions with those who hold different views, rather than resorting to name-calling.

[Rev. Arthur L. Kirkland]

Not all conservatives and Republicans are bigots. Not nearly.

But plenty of them are. And those who do not embrace bigotry appease bigots and bigotry for paltry political purpose.

That is a substantial reason for the Republican-conservative failure in the culture war. The rest of the right-wing platform -- the long-term political aspirations of gun nuts, anti-abortion absolutists, supporters of Israel's right-wing belligerence, advocates for limitless special privilege for religious claimants -- will sink with the Republicans' S.S. Bigot.

[The Margrave of Azilia]

You realize that you're arguing with a chatbot and losing?

[Commenter_XY]

Well Arthur, you can always give it a swing, and make the same kind of case the professor did; you provide the cites. I bet it is harder than it looks.

[Abdul Abulbul Amir]

Firearm fatalities are almost all homicide or suicide. Homicide victims are wildly disproportionately found among young black males. Black males aged 10 to 24 are more than twenty times more likely to be the victim of a firearm homicide than a white male of the same age.

In my opinion any "common sense gun safety regulation" should at the very least have the appearance of directly addressing one or both of those situations. Common sense means going after the biggest problems first. That virtually none do speaks volumes. The recently struck down NY law barring carry in church is an excellent example. It serves no practical purpose except to divert attention from the state's failure to address the most prevalent causes of firearm mortality.

[elnurmamedrafiev]

Black males are also 20 times more likely to be the perpetrator of a firearm homicide. While mass shootings are largely a mental illness problem for which the left bears 100% of the blame, street crime is entirely a black male problem.

[Stephen Lathrop]

Abdul Abulbul Amir — Your focus on fatalities is arbitrary, and contrary to your insistence to take the biggest problem first. The biggest problem, by far, is non-fatal gunshot injuries. If that does not disrupt your essentially racist argument based on fatalities, it would at least shift some of the reasoning toward gun prevalence as a cause.

[defaultdotxbe]

The vast majority of non-fatal gunshot injuries are directly related to homicides (or attempted homicides) so the demographics of those crimes are likely the same. Of course that doesn't necessarily validate Abdul's analysis of those demographics.

[Abdul Abulbul Amir]

If reducing fatalities is not the priority for “gun safety regulation” proponents, they should at the least explain what their priority is, and how the proposed regulation addresses that priority.

Not only how it addresses, but how well it worked in other states. For example, the Sandy Hook firearm was stored in compliance with safe storage.

[David Nieporent]

Your focus on fatalities is arbitrary,

I really don't think that being most concerned about death is "arbitrary."

[Stephen Lathrop]

Nieporent, then I guess you do not understand how unpredictable the effects of most individual gunshot injuries actually are. When you do understand that, you readily understand that the sensible gun policy approach is to treat all gunshot injuries alike, whether fatal or otherwise. I get that the law works differently.

But I will grant you a point that with other things equal, different weapons and bullet designs deliver more-deadly or less-deadly results somewhat systematically. That, of course, is a potential policy point of keen interest to would-be gun controllers. But it raises questions which gun advocates do not want reliably answered.

[elnurmamedrafiev]

No, different weapons and bullet designs to do not deliver different results.

[Rossami]

"The biggest problem, by far, is non-fatal gunshot injuries" said no gun control advocate ever - until Lathrop needed an excuse to deflect from statistics on actual fatalities.

[shawn_dude]

Stephen makes sense to me. The average person firing a weapon at another person is unlikely to be an expert marksman. Whether they intend to kill or injure, where the bullet penetrates and what portion of the body it destroys is somewhat random. So an injury and a murder may both be accidental as the intent in each case may be the opposite of the result. When approaching gun safety regulations, or just gun-related mayhem in general, one should treat both fatal and non-fatal injuries as equivalent.

The issues with the statistics is they don't split out "I meant to kill him" from "I only wanted to injure him" well enough to form the basis for any reliable conclusion.

[Harvey Mosley]

Ask any parent of a murder victim of a school shooter if it would matter if their child had only been injured. Or any family member of any murder victim.

[JHolm]

Your analysis is correct, even in a city where the demographic makes up a mere 6% of the population. Murders are at an all time high in Portland, triple what they were before the pandemic. If the goal is to reduce homicides or shootings, enforce the laws we have with stiff penalties for crimes committed with guns, as well as harsh penalties for repeat offenders, no matter the crime. The statistics in this report support this.
https://www.portland.gov/sites/default/files/2022/2022-pdx-problem-analysis-public-version.pdf

[Brett Bellmore]

“history and tradition support Congress’s power to strip certain groups of that right.”

Statutorily, or as a punishment for commission of a crime? Makes a huge difference. You’ve always been subject to having rights taken away as a result of a felony conviction. Even the right to walk around free!

That’s a long ways from saying that Congress could pass a statute to deprive specified groups of the right, without an intervening criminal conviction where the loss of rights was an established consequence of the conviction.

The Lautenberg amendment, upheld at a time when the Court was not acknowledging the 2nd amendment as an individual right, and it came at a time when the Court was flatly refusing to entertain 2nd amendment arguments. Basically they treated gun ownership as nothing but a privilege.

In its application to misdemeanors, it’s over-broad, as loss of rights was only a traditional consequence of felony convictions. But the real constitutional problem is that it was applied to convictions prior to its enactment.

So you had people pleading guilty to misdemeanor spousal abuse, at a time when they’d have been looking at nothing more than a fine, cheaper than contesting the charge. Many people who could have beat the rap just pled guilty to minimize their expenses. And then, years later, WHAM. They find they’ve lost a basic civil liberty.

The Lautenberg amendment is ripe for renewed review in light of Heller and Bruen. Over-ripe, even.

[Stephen Lathrop]

Like barrels and triggers, magazines are essential for the operation of all multi-shot and repeating firearms, which are "bearable arms." The word "arms" must extend to these essential components of firearms. If it did not, the government could ban all magazines and limit individuals to single-shot firearms.

A remarkable gun pedantry fail by Halbrook. In his discussion he elides the distinction between interchangeable magazines, and permanently built-in magazines, usually of lesser capacity. Put those back into the discussion and Halbrook's last sentence becomes nonsense.

[Miles Fortis]

Pfft.
No one believes your propaganda.
You're the nonsense here.
All accoutrements of arms are covered under the definition of arms and we all know it.
Tell whoever is providing your talking points that they're falling down on the job.

[Brett Bellmore]

Stephen, the government can't just arbitrarily limit the exercise of an enumerated right, just because it leaves some limited avenue for its exercise. Laws that impinge on constitutional rights have to be very well justified indeed, and if they strike too close to the core of a right, no justification can be sufficient.

You're just looking for excuses to permit a right you don't like to be curtailed. Nothing more.

[Ed Grinberg]

You’re just looking for excuses to permit a right you don’t like to be curtailed.

Other than “right to abortion” and “right to marry someone of the same sex,” are there any rights he likes?!

[elnurmamedrafiev]

They also like the right to get high.

[David Nieporent]

Yes. He likes the freedom of the press, narrowly defined to refer to professional publishers.

[Stephen Lathrop]

I do not think you are lying on purpose Neiporent, just inadvertently ignoring a great deal I have written which contradicts what you say.

[elnurmamedrafiev]

Exactly. No one would seriously argue that you can ban picketing outside the legislature because picketing is still allowed outside the governor's mansion.

[Joe41 2]

Imagine if gun control logic was applied to other enumerated rights:

”It is acceptable to ban praying out loud as you can have a prayer in your heart”

“We can ban political pamphlets as someone wanting to express an opinion can always write a book”

“We can ban television news since people wishing to be informed can always buy a newspaper. Television is too powerful a new technological medium for distribution of misinformation, The founders would have never imagined or accepted such a powerful thing, all they had in those days was the town crier”

[Bruce Hayden]

And so what? Are you suggesting that the government could ban detachable magazines if it wanted to? Almost assuredly, a distinct majority of the new guns sold every year have detachable magazines. Every single gun I own, even my two hunting bolt action rifles have detachable magazines. Oh, wait. My two shotguns have internal magazines, but I have ordered one that has detachable magazines, just because it has them. Oh, and I have a lever gun, mostly just to have one. It’s my fast action bear gun - just lever it, and it’s ready to go. So, every handgun I own, along with a majority of my long guns, has detachable magazines. Over 3/4 of the guns I own. Common usage anyone? And of those, most have magazines > 10 rounds - the exceptions are the two hunting rifles and a 1911.

Are there over a hundred million detachable magazines in this country? Assuredly, with more than 100 million guns requiring detachable magazines. Over a billion? Maybe. Probably not quite that many. But probably not. I have a minimum of 5 magazines for each firearm that I have that uses them. Many more for my AR pattern firearms. Esp standard capacity 30 round 5.56/.223 magazines. Every time the Democrats start making noise about limiting magazine size, I find them on sale somewhere for about $10 each, and buy another 10 of them. It wouldn’t surprise me if there were over 100 million 20 or 30 round AR magazines in the country. Again, can you say “common usage”?

[defaultdotxbe]

If the government bans "all magazines" why would that not include internal ones? When banning magazines that hold more than 10 rounds the government generally doesn't make a substantive distinction between fixed and detachable magazines, both are equally banned.

[ReaderY]

The Supreme Court did not take a textual approach, because it disconnected the right to keep and bear arms from the proceeding, textually connected clause, which concerned a state’s right to maintain a well-regulated militia.

If the two had remained interpretatively connected, we would look to who could historically be excluded from a militia to determine who could be denied a right to keep and bear arms. Numerous traditional militia regulations would also apply. The state could for example require a specific standard weapon to ensure interchangability and simplify ammo supply in the event of a conflict and prohibit keeping and bearing anything else. It could require people who want to join the militia to have fairly extensive (but achievable for an ordinary working person) training and pass competency tests, and be available for periodic retraining or manouvres. It could require only open carry. It could require a lot else.

It couldn’t do anything intended to just obstruct arms-keeping, and its regulations would have to be reasonably related to the actual effectiveness of an actual militia. But not only would it be entitled to regulate arms in a manner directly related to the regulation of its militia, it would be required to regulate them well.

That would be a textual interpretation. But one can’t start by first abandoning the text in favor of history on grounds history makes the first clause mere irrelevant surplusage, and then turn around and insist that only text and not history should be used in interpreting the rump second clause.

That’s cafeteria exegesis at it’s finest, picking and choosing to reach ones preferred policy result, using one argument to get from point A to point B, and then, having reached point B, loudly denouncing that argument and using the exact opposite to get one from point B to point C.

A less polite way of describing it would be pulling the results one likes out of ones ass. Liberals have long been criticized for using these sorts of tactics. Conservatives should be held to the fire when they do it.

[bernard11]

Excellent points.

[Syd Henderson]

Second Amendment advocates tend to ignore the necessity of a "well-regulated" militia as if the first part of the Second Amendment was put there for decoration, something that was not done elsewhere in the Bill of Rights. Thanks ReaderY.

[elnurmamedrafiev]

It wasn't uncommon at the time to state the purpose. Look at New Hampshire's Constitution, for example:

Free speech and Liberty of the press are essential to the security of Freedom in a State: They ought, therefore, to be inviolably preserved.

[defaultdotxbe]

Syd and ReaderY would have you believe that only speech and press in support of the state are protected.

[ReaderY]

I think your example better supports my argument than yours.

My question to you is, what meaning do the words “well regulated” have under your theory? Those words are the most critical difference between the two passages. (Another critical difference is that while in the NH constitution the clauses on the left and right sides of the comma both say things about thr same 2 rights, in the 2nd amendment the left side describes a militia and the right side describes a right. A militia can’t just breazily be described as the same thing as a right.) But let’s get back to “well regulated.” who in particular does the regulating? Something that’s regulated imples the existence of a regulator. Who is that?

Free Speech and Liberty in the New Hampshire constitution clause you pose, represent things best not regulated at all, or as little as possible. In contrast, in the Second Amendment a militia is something best regulated “well.” The word “well” may connote wisely and not arbitrarily, but it definitely doesn’t normally connote as little as possible.

That strikes me as implying something very different is meant.

[Absaroka]

"what meaning do the words “well rgulated” have under your theory? And who in particular does the regulating? Something that’s regulated imples the existence of a regulator. Who is that?"

You can disagree, but one school of thought is that at the time 'well regulated' meant functioning properly.

From 1777: "...it is certain that a woman never appears to greater advantage than at the head of a well regulated table...".

...

[Absaroka]

...From 1795: "...and the clocks there, which I suppose to be well regulated..."

...

[Absaroka]

...From 1749: "...the precise time is noted, as shown by a well regulated pendulum".

In fairness, I looked through the search results for usage for things other than militias - there are a lot of 'well regulated militia' results. I didn't see any that parsed to "by well regulated militia we mean one that is forbidden arms outside armories", but I was just doing a quick scan. If you search more carefully, perhaps you can find a definition along those lines.

[ReaderY]

Where did “forbidden arms outside armories” come into this? Nothing to do with, completely contrary too, what I said.

I talked about the state could regulate things like the kinds of weapons and require a standard kind, impose some training and safety, require people to report to training or manouvres a day or maybe a couple of weekends a year (perhaps somewhat analogous to jury service), stuff like that. I specifically said that this couldn’t encompass anything that would completely eviscerate the individual right. You totally misunderstand me. I’m saying the two clauses should be read in harmony. I’m saying the first clause somewhat tempers the second. I’m not saying it renders it totally meaningless. Not by any means. Requiring weapons to be kept only in armories would completely contradict the ordinary meaning of “keep.”

[Brett Bellmore]

"But let’s get back to “well regulated.” who in particular does the regulating? Something that’s regulated imples the existence of a regulator."

Well, do you suppose it's possible the founders actually said anything to clarify that? For instance, Washington: "I am unacquainted with the extent of your works, and consequently ignorant of the number or men necessary to man them. If your present numbers should be insufficient for that purpose, I would then by all means advise your making up the deficiency out of the best regulated militia that can be got."

Apparently it meant to them "well trained and equipped".

[Alpheus W Drinkwater]

Perhaps it meant that to Washington. Did it mean the same thing to every framer and ratifier?

[Brett Bellmore]

I provided a link, didn't I?

For all I know, one or two of them had "minutely ordered about by intrusive bureaucrats" in the back of their minds, but if they did, it stayed there.

[Jason Cavanaugh]

Try as you might, you don't get to claim SCOTUS was wrong because you're right.

The remaining five paragraphs all depend on taking your "I'm right and they're wrong" claim as established fact.

[ReaderY]

Could you point me to a single criticism of the Supreme Court that doesn’t assert something on the lines of “the Supreme Court is wrong because I’m right?” Every dissent asserts that. Sure, they explain why they’re right better than I did. But it’s still what a dissent is all about. Every criticism of the Supreme Court does that.

Are you saying the Supreme Court can’t be criticized?

Even if you’re right, Professor Halbrook isn’t on the Supreme Court either. He’s saying the courts are wrong. And why? Because he says he’s right. So his opinion is just as illegitimate as mine.

[dwb68]

Not quite. The "militia" model was more like the Swiss or Israeli model today, everyone serves and takes their guns home. Also, in 1791 people were required to show up with their own rifles and pistols. There was no pemit to purchase or carry.

Yet...Swiss dont have a problem with gun crime.

The question gun prohibitionists fail to address: Who is responsible for 80% of homicides. hint: not suburban or rural people. And who runs those places?

[Noscitur a sociis]

The Swiss also don’t let militia members own their own ammunition for those service weapons, require background checks for ammunition purchases for permitted weapons, and use a carry permit regime more restrictive than the one struck down in Bruen.

They’re relatively civilized for Europe, to be sure, but not a model we’d want to adopt any time soon.

[Absaroka]

"The Swiss also don’t let militia members own their own ammunition for those service weapons"

Are you saying that it is illegal for a member of the Swiss militia to own 5.56 (or whatever caliber their issued rifle is), or that the government no longer issues ammunition to be stored at home? And if you remember your source, could you share it?

FWIW, I went googling and I'm not sure what it's saying. On one hand I see:

"With the exception of a few thousand of the 120,000 soldiers in Switzerland's militia army who keep their cartridges at home, all army ammunition will have to be stored in central arsenals. Army guns can still be kept at home.

The House of Representatives on Thursday followed the Senate in backing a motion that will allow around 2,000 specialist troops, such as those guarding airports and other important installations, to continue to store their ammo in their cellars and attics."

But farther down:

"All able-bodied Swiss men aged 20-30 are conscripted for about three months and issued with a rifle.

After initial training, they are required to do three or four weeks of army service a year until they have served a total of 260 days or reached the age of 34. Throughout this time they keep their rifles and 50 rounds of ammunition at home."

which sounds broader than the 2000 mentioned earlier.

[Noscitur a sociis]

It used to be standard practice to issue a sealed box of 50 rounds, notionally (I believe) so that they could be immediately ready for action in the event of an invasion. That was changed a while back so that for almost everyone, the ammunition is stored in military armories and only issued when it is to be used.

I don’t think this is particularly controversial: it’s in the Wikipedia article, which cites some primary sources if you want to dig deeper.

https://en.m.wikipedia.org/wiki/Firearms_regulation_in_Switzerland

[Absaroka]

Thanks. My reading of this (from your link):

"The sale of military-issued ammunition, including Gw Pat.90 rounds for army-issued assault rifles, is subsidized by the Swiss government and made available at the many Federal Council licensed shooting ranges. "

is that what stopped is the issuance - but a militia member can buy/possess at home ammunition for his service rifle; it's just not issued anymore.

[Brett Bellmore]

The Swiss have been backsliding in the last couple of decades, I'll give you that.

[Brett Bellmore]

"If the two had remained interpretatively connected, we would look to who could historically be excluded from a militia to determine who could be denied a right to keep and bear arms. "

But look at the Miller case: Miller was a convicted felon, a bank robber. The Court could have skipped a lot of work if they had agreed with you.

But, no. While you can lose any right as a criminal punishment, losing rights isn't automatic consequence of criminality, it has to be legally imposed.

[ReaderY]

The Miller decision only addressed, and properly so, the crime Miller was actually convicted of, not crimes he might have been convicted of if Congrwss had passed and he had been prosecuted for different laws.

The fact the Court focused on the law and the case before it isn’t evidence that was the only possible law or the only way the situation could have been handled.

An additional possible implication of my argument is that the 2nd Amendment may give states regulatory powers not possessed by Congress. Congress has “Power to provide for organizing, arming, and discipling the Militia.” It’s entirely possible the states’ power to “regulate” is broader overall than the power to organize, arm, and discipline, and encompasses things not covered by those three narrower powers.

[defaultdotxbe]

Mr. Miller was not a member of any militia, state or otherwise, nor did he purport to be a member of any militia. Had the court taken your interpretation that would have been the end of it: He would have no 2nd amendment right whatsoever.

Instead the court took the path of examining whether the weapon he was convicted of possessing (and short-barreled shotgun) was one suitable for militia use, which presupposes that Miller, as member of "the people" had a 2nd amendment right to keep and bear arms, and instead the question was about whether the arms in question were protected. The court concluded (erroneously) that they were not.

[ReaderY]

At the time of Mr. Miller’s conviction, a state’s militia by default comprised every adult male citizen, possibly every able-bodied one, unless a state chose otherwise. Mr. Miller was able-bodied, male, and adult. ‘Nuff said. How states regulate their militias, or not, isn’t the federal government’s problem except for its narrower enumerated powers.

The difference between federal and state powers is wide under a textual interpretation that doesn’t ignore the enumerated state power. The federal government is limited, as Miller said, by potential to use in a potential militia. But a state, which can have an actual militia, gets to consider actual use.

[dwb68]

Incorrect. Federal code defines the militia, and has since the first militia act of 1791.

[ReaderY]

And Miller was a member by that definition, was he not?

The federal government has specific enumerated militia powers, but not the more general power to regulate.

[Brett Bellmore]

And it's irrelevant, because it doesn't say, "right of the Militia". It could have, if they'd intended that, but they did not.

If you say, "right of the militia", and the point of the right is to preserve the militia, it vanishes the moment you decide not to have one. Pretty pathetic, that.

[ReaderY]

You totally misunderstand my argument. It’s an individual right, but connected to and limited by the legitimate needs of service in a well-regulated popular militia comprising nearly all the adult citizenry and regulated by the state subject to some federal input as enumerated, to be called upon in emergencies and times of need. It’s not an either-or. It’s a both-and. Both have meaning and both are to be read together as a whole. Both the left-wing position (collective only) and the right-wing position (individual only) get this wrong. It’s a single whole.

[Brett Bellmore]

The right is protected in order to assure the continued viability of a militia system, by allowing for a population armed and familiar with arms even if the government of the moment doesn't want them to be.

Again I say, these enumerated rights are not premised on helping a government intent on doing the right thing. They are aimed at hindering a government that wants to do the wrong thing. So you have to ask what the wrong thing to be hindered is.

In the case of the 2nd amendment, the wrong thing is discontinuing the militia system. This is to be hindered by guaranteeing the people a right to be appropriately armed and trained even if the government doesn't want them to be, because it wants to be rid of the militia system.

My analogy is that, if you thought having a volunteer fire department was important, and feared that the government might eventually fall under the control of arsonists, you would give the people the right to own and use firefighting equipment. NOT to use it only when they were in the government's own fire fighting units that might be discontinued, or repurposed to lighting fires.

[defaultdotxbe]

At the time of Mr. Miller’s conviction, a state’s militia by default comprised every adult male citizen, possibly every able-bodied one, unless a state chose otherwise. Mr. Miller was able-bodied, male, and adult. ‘Nuff said.

Even if that is "'nuff said" I don't believe it was ever said in arguments during the Miller case and as such has no bearing on the decision. In any case, that is still true today.

And if that were the case then that would United States v. Stewart (2003) was wrongly decided, as the states would retain the right to determine how to outfit their militias, not Congress.

[ReaderY]

His militia status was never disputed. Why would there be arguments on an undisputed matter?

[defaultdotxbe]

If it's relevant to his having a 2nd amendment right then you would expect it to at least be stated for the record. Its absence would seem to indicate its not relevant.

[ReaderY]

If I can show you an abortion where the court didn’t specifically discuss that the plaintiff was a woman or that the plaintiff was pregnant, would that convince you that femaleness and pregnancy have nothing whatsoever to do with abortion? Would such a case be sufficient to disprove a claim that these two concepts are relevant in such cases?

[ReaderY]

But more basically, and I think deadly to your position, Miller was a federal case, not a state case. The Miller court’s statement that the federal government can only regulate weapons that can be used in a well-regulated militia (whether or not ever actually so used) simply doesn’t contradict the idea that the 2nd Amendment gives a state a further power to regulate its actual militia, and regulate it well. I’m asserting a state power, limited to states.

The 2nd Amendment may be a simple individual right so far as the federal government’s direct regulation of individuals is concerned, at least individuals who (lime weapons) COULD be part of a state militia. The constitution’s militia clauses give the federal government some say in militia regulation, but they don’t countermand the individual right to keep and bear arms.

[Brett Bellmore]

"The Miller court’s statement that the federal government can only regulate weapons that can be used in a well-regulated militia"

That goes so far as to stand Miller on its head. Perhaps you meant "only can't", rather than "can only"?

[ReaderY]

Why is United States v. Stewart relevant? The 9th Circuit rejected Mr. Stewart ‘s argument on grounds the 2nd Amendment contains no individual right of any kind. I’m arguing it does. I’m merely arguing that the individual right to keep and bear arms is not an absolute unfettered right but is tempered by, and has to be construed consistently with, the needs of a well-regulated militia, and states implied powers to regulate their militias well. Individual citizens’ right is to arms consistent with militia needs and they can conditioned on some training and rules. But these rules canmt devices to undo the individual right, they have to be connected to actual militia regulation and reasonable.

The model would be something like Israel, except everybody gets to keep their arms at home, and any training and service requirements need to be more consistent with a part-time citizen force than a conscript army.

You are arguing against, and attributing to me, positions that simply have nothing to do with anything I’ve said.

[Bruce Hayden]

Reread Heller. The Militia Clause is merely one justification for the operative clause. Not the only one. You are fighting a battle that has already been lost. The Supreme Court explained linguistically why the Militia Clause didn’t limit the Operative Clause. You are essentially saying that they were wrong, without anything except for your say-so.

[ReaderY]

The OP claimed 2nd Amendment rights should be based solely on text, not history. Heller based the individual right in no small part on history, not text alone. I started this comment threat by pointing out the rather obvious inference that if the OP is right, then Heller was wrongly decided.

Your statement that the right declared in Heller was based on many things and not just the 2nd Amendment text is hardly inconsistent with this.

[Noscitur a sociis]

Miller was not a convicted bank robber: he was granted immunity in exchange for his testimony against the other gang members.

[David Nieporent]

proceeding, textually connected clause, which concerned a state’s right to maintain a well-regulated militia.

I mean, that's not what that clause — let alone the sentence as a whole — says. Not even close.

[ReaderY]

The text is “A well-regulated militia, being necessary to the security of a free State…”

What exactly does that mean if doesn’t imply states have a power to regulate their militias well? And why make these statements as parts 1 and 2 of a single sentence if the right to keep and bear arms has no connection to it?

A basic canon of textual interpretation is that given a choice between giving a clause a meaningful function and treating it as meaningless decorative puffery, we should prefer the meaningful interpretation.

[Michael P]

There's been a lot of study into what "well-regulated militia" meant to the people of the time, and it didn't mean "firearms are subject to extensive or arbitrary regulation". "Well-regulated" referred to the training, proficiency and discipline of the militia as a cohesive force. Keeping and bearing arms is then one way to achieve that objective -- but that is not the only objective that is achieved by the operative clause of the Second Amendment.

[defaultdotxbe]

You purport to take a textural approach, but then insert the words "state’s right" where it doesn't exist in the text.

You purport to take an historical analysis, but then apply several "traditional militia regulations" which did not exist at the time of the founding, such as standardization of weapons, a prerequisite of training and competency tests, a mandate of open carry, etc.

[ReaderY]

Who regulates the well-regulated militia that is necessary to the security of a free state. Regulated implies the existence of a regulator. Who is that regulator?

Are are these words just there for decoration?

If only the kind of militia regulations that existed at the time of the founding are relevant to the 2nd Amendment, how can any kind of arms that didn’t exist af the founding be relevant? If arms relevant to a modern militia are relevant to the 2nd amendment, why wouldn’t regulations relevant to a modern citizen’s militia? If militias have to work with antique regulations, how can there be a toght to bear any but antique arms?

This is like arguing that freedo of the press doesn’t apply to electronic communications because there is no actual pressing onto paper.

[MaddogEngineer]

I don’t recall if Heller addresses this, but focusing too narrowly on the words “well-regulated” with respect to the militia is a mistake, as it has far broader meaning than just the arms the militia possessed. It speaks to the difficulties of having an effective militia, which is why George Washington grew to be skeptical (if not downright hostile) about its utility for serious military maneuvers.

The history of militia service was erratic, because in reality too many militia members didn’t drill seriously enough to be an effective fighting force beyond the simplest of situations, and even would dodge service. (For example, look at how the militias defending Washington performed during the British advancement in 1814, leading to the city burning.) The “well-regulated” in the amendment text is aspirational, addressing the lived reality that militias needed to be trained better than most were. In retrospect an unrealistic proposition and why we ultimately developed a larger standing army core (that itself fluctuated in size even after the Civil War).

None of that lived history negates the individual right of the 2A. It only demonstrates that “well-regulated” doesn’t mean what gun control people would like it to. Well-regulated can also mean well organized. It has nothing to do with the state's authority to limit its available weaponry.

[Michael D]

Statements made by several congressmen at the time made it clear the Second Amendment was motivated by fears of a standing army and a strong central government overwhelming the states. The Virginia Ratifying Convention’s proposed “Second Amendment” specifically cites a permanent army as something to prevent.

“That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.”

Congressmen Eldridge Gerry reiterated this view during the congressional debates about the amendment.

“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution.”

Your interpretation is based on the attitude that only members of government enforcement agencies have a right to keep and bear arms. In today’s world, this constitutes a relatively small group of people with clear legal distinctions and privileges. At the time of the Second Amendment’s adoption, militia participation among the male population was nearly universal. In fact, in most places it was mandated by law.

Commenting on the Second Amendment, Founder Tench Coxe wrote:

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”

The emphasis on individual firearm ownership is easy to understand considering British efforts to disarm private citizens leading up to the War of Independence. In 1775, General Thomas Gage confiscated firearms in Boston as the city was under siege, then prevented the disarmed populace from leaving as promised. In 1778, General William Howe disarmed the people of Philadelphia while it was under occupation.

[ReaderY]

You completely misunderstand my point. The right to keep and bear arms is a right of the people and an individual right. The people consists, with only minor exceptions, of all adult citizens (perhaps only adult white males at the time of the founding, but all adults today.)

There is an enormous difference between a genuine popular militia, a militia that nearly all the people (with only minor exceptions) are eligible to belong to and that the state then regulates with reasonably on-point regulations that militia members have to abide by to retain their eligibility, and “members of government enforcement agencies.” To assert any equivalence between the two is to completely misunderstand the whole point of my argument.

[Bruce Hayden]

Except that wasn’t the model at the time. The British governor has, essentially, taken over the MA government, and the militias his troops fought at Lexington and Concord were, thus, not state sanctioned. They were local, town by town.

And that was the model that was in the minds of those proposing the 2nd Amdt. Our first three Presidents were all active in the militia movement of the mid 1770s, and the core of Washington’s army was originally composed of local militias.

[The Margrave of Azilia]

“If the two had remained interpretatively connected, we would look to who could historically be excluded from a militia to determine who could be denied a right to keep and bear arms. ”

Disarm the wimminz, so pioneer women have to stay at home unarmed during the absence of their husbands. No, this would be so contrary to historical practice to give pause even to a non-originalist.

Check out my best guess for the meaning:

https://reason.com/volokh/2022/12/13/plain-text/?comments=true#comment-9834538

[Brett Bellmore]

"If the two had remained interpretatively connected, we would look to who could historically be excluded from a militia to determine who could be denied a right to keep and bear arms. Numerous traditional militia regulations would also apply. The state could for example require a specific standard weapon to ensure interchangability and simplify ammo supply in the event of a conflict and prohibit keeping and bearing anything else. It could require people who want to join the militia to have fairly extensive (but achievable for an ordinary working person) training and pass competency tests, and be available for periodic retraining or manouvres. It could require only open carry. It could require a lot else."

Under a militia-centric reading of the 2nd amendment, the government can require you to DO a great many things. Own a specific weapon, practice regularly, keep a substantial store of ammo. Basically anything that would make you more militarily effective.

But this doesn't reach to everything a government might want to do.

First, remember, it is NOT a right of the militia, it's a right of the People. So, the government can't deny you exercise of the right by saying you're not in the militia, that's irrelevant.

Second, while the government could, say, require you to maintain an M4 carbine and supply of ammo for it, and require you to practice regularly, it could NOT require you to refrain from owning additional other firearms, because that requirement in no way advances your military utility.

Third, the government, (State, anyway.) absolutely could prohibit concealed carry, so long as it permitted open carry. What it can't do is flatly prohibit carry, or restrict it to some privileged group. The right to bear arms, a right of the people, rules that out.

...

Keep in mind that the enumeration of a right in the Bill of Rights is not an expression of trust in the government. All such enumerations anticipate some abuse on the part of government, and seek to prohibit it.

What is the abuse the 2nd amendment seeks to prohibit? Any effort to make a militia system impossible, by trying to craft a public incapable of being used in one.

Disarming people, or creating a select militia to excuse disarming everybody else is part of the evil it seeks to prevent.

A more subtle way of disarming potential militia members is to specify an ineffectual standard weapon, and try to limit people to only that one... That's a fall back some of the more clever gun controllers like to suggest.

[Joe_dallas]

ReaderY comment - " then turn around and insist that only text and not history should be used in interpreting the rump second clause."

the problem with your argument is that the 2nd clause is the operative clause, not the first.

[Kazinski]

"The state could for example require a specific standard weapon to ensure interchangability and simplify ammo supply in the event of a conflict and prohibit keeping and bearing anything else."

I think Congress could require everyone to own an AR-15, and an M1911 sidearm, but that would be an Article 1 clause 16 power:
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

Now someone might question your interpretation of the 2nd because it is completely duplicative of Congress' article 1 power, and of course they would be right.

If fact the Miller Court held that the prefatory clause was referring to the Article 1 power in asserting a Federal interest in preserving citizens right to be armed, and read in tandem with the militia clause, that seems very sound.

But while Congress could require everyone to own an AR-15, at a minimum, they could not limit everyone to only that because it would clearly infringe on the right to keep and bear arms, which of course was preexisting, and included the preexisting right to self defense, and that's what the Miller Court got wrong.

[Frank Drackman]

Ah C'mon Man!,
T. Jefferson was a known Thespian, Plebian, and Dyslexic, he obviously meant,
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and arm Bears, shall not be infringed"
So buy all the AR-15's you want, but only for your Bear.

Frank

[Joe_dallas]

being necessary to the security of a free State.
A free state - being a free society

[ReaderY]

Does the Constitution use the term “right of the people” anywhere else to mean “right of the state government?” No. It always means an individual right.

But that same constitution also never uses the term “State” anywhere else to mean “society.” It always means a state as a sovereign entity acting through its government.

What’s sauce for the goose ought to be sauce for the gander. Both sides should avoid attributing special, ideologically convenient, results-oriented meanings to terms in the Second Amendment that are at odds with what those same terms mean when used elsewhere in the Constitution.

[David Nieporent]

It always means a state as a sovereign entity acting through its government.

"He shall from time to time give to the Congress Information of the State of the Union,"

[Michael P]

In that phrase, "State" means status or condition, not a polity or its people or its government. It's a (polysemous) homonym.

[David Nieporent]

I know what it means. In fact, I'm pretty sure everyone knows what it means. I was just responding to ReaderY's claim that every use of the word "State" in the constitution was to a government entity.

[Mike Hansberry]

So what does "free" mean in your interpretation?

https://volokh.com/posts/1173488580.shtml

[Dan Schiavetta]

The plain text covers militia conduct.

[Joe_dallas]

captcrisis 29 mins ago
Flag Comment Mute User
"The plain text covers militia conduct."

Yes it does cover the right to keep and bear arms for the common defence . but you cant cherrypick the clause you like.

It also covers the right of the individual people to keep and bear arms. Such right "shall not be infringed"

[Dan Schiavetta]

That is not conduct. Prof Halbrook says the plain text covers conduct.

[Joe_dallas]

captcrisis 1 hour ago (edited)
Flag Comment Mute User
"That is not conduct"

WTF?

[Dan Schiavetta]

The only conduct mentioned in the 2A is militia service.

[Brett Bellmore]

"Keeping" and "Bearing" are surely also conduct, right?

[Noscitur a sociis]

What about keeping and bearing arms? I think that’s in there somewhere.

[MaddogEngineer]

Yes, it’s a nonsensical reading of the (plain) text to draw the conclusion that military service is the only reason for individuals to “keep” and “bear” arms. Especially if one wants to further argue that the arms in question may not even have been kept by the individual, but provided by the state and stored in an armory and only distributed when in active militia service (as some attempt to suggest by misrepresenting the historical record).

The illogical conclusion is that should a state ever decide it no longer desires to have a militia, the keeping and bearing right disappears. I think the Heller decision explains well why that is an incorrect reading of the text. Plus as someone upstream observed, when the royal governor of Massachusetts went to war against his colonists, the militia that resisted him was town based. Which points to an individual right decoupled from any particular governmental authority. The militia can never be disbanded, because at any moment the people have the right to form one to meet any contingency.

[Joe_dallas]

Concur - The most natural reading of 2A is that it protects the right of citizens to form militia's for the common defence and the individual right for self defence.

The historical writing encompasses both rights

further there is no historical writing that discusses limiting the right only to times when serving in the militia - Had there been any writing of that sort, there would have a ton of writings in objection.

Implausible that 2a was intended to limit the right to only serving in the militia and no one bitched about it!

[SRG]

And now we can be sure that we're allowed to own weaponised anthrax, nuclear materials - in small enough amounts to be carried, binary chemical weapons, etc.

[Brett Bellmore]

Oh? They're being issued to soldiers as they graduate from boot camp?

[SRG]

What has that do with it? Nothing requires that civilians can only own the same weapons as the military, In fact, civilians should have a greater range of permitted weapons, because the military are constrained by international treaties, but civilian weaponry cannot be.

[Brett Bellmore]

As Tench Coxe said, "their sword, and every terrible implement of the soldier". The idea is that we're entitled to be armed in the same manner the government's own soldiers would be.

At the time of the founding, Americans could own every last weapon the government had, right up to shore batteries. The Constitution makes reference to letters of marque and reprisal, the very notion of which assumes that civilian ships are entitled to be armed in a militarily effective manner. Indeed, the idea that there was any weapon the government could own, and a citizen couldn't, is of very recent origin, post WWI. It grew up after the Supreme court started refusing all 2nd amendment cases, it's kind of a 14th amendment and Jim Crow notion, really. My dad grew up in an America where if he'd wanted he could own a machine gun, anti-tank gun, even a tank if he could afford one. I got to see the tail end of that, ads like this in magazines like Popular Mechanics. Damn, I wish I'd bought one as a kid.

But the 2nd amendment specifically is about the arms a soldier would carry. The founders assumed that citizens could own ANYTHING the government could, but that didn't come out of the 2nd amendment.

It came out of their not being control freaks with a twisted idea of the relationship between government and citizen.

[SRG]

But the 2nd amendment specifically is about the arms a soldier would carry.

Not according to the jurisprudence seen so clearly here. If the first clause controlled, yes, you'd have an argument. But it is clearly established - and noted in at least one comment here - that it does not control the second clause.

Further, if an armed citizenry was considered necessary to defend against a possible tyrannical government in control of the military, you would want the citizens to have at least as good weaponry, no?

And the FFs could surely have clarified if they intended to limit civilian arms to those carried by the military.

As I noted, there are some weapons denied to the military owing to international treaties. It cannot be the case that those weapons are therefore denied to the citizenry because then a treaty would have the effect of repealing or abrogating a constitutional right, which we know it cannot.

[Brett Bellmore]

"Not according to the jurisprudence seen so clearly here."

And I complain about it: I've said that neither Stevens NOR Scalia were practicing real originalism in the Heller case.

We're discussing here theoretical limitations on the 2nd amendment there's no judicial interest in getting anywhere near. The fight right now is between those who'd abolish the right, and those who are content to let it exist in a reduced form. Maybe one or two of the Justices would uphold it entirely.

Hopefully a couple decades of half a right will produce a generation of jurists who don't find guns scary.

[Mike Hansberry]

What do you mean by "control"?

[SRG]

When one clause is restricted or limited in its interpretation or meaning by a preceding clause, that preceding clause controls the later clause. In this case, the first clause clearly and unambiguously provides the sole and unique Constitutional rationale for the second clause, but does not mean that arms may only be used for the reason of that first clause, hence the first clause does not control the second one. Presumably it's there to explain why the FFs thought it necessary to enumerate this specific pre-existing right.

[The Margrave of Azilia]

"binary chemical weapons"

I'm glad we're not assuming their pronouns.

[SRG]

LOL - candidate for VC PotD

[Dan Schiavetta]

“Take the case of Stephen P. Halbrook, one of the central figures in this new literature. His imaginative manipulation of evidence runs to arguments like this, from his 1989 book, A Right to Bear Arms: the Second Amendment cannot be referring only to military weapons, since a Federal-period dictionary (Noah Webster’s), under “bear,” lists “to bear arms in a coat” as one usage, and only a handgun could be carried in a coat pocket. Mr. Halbrook does not recognize the term “coat of arms,” a decidedly military form of heraldry presided over by the College of Arms (by Mr. Halbrook’s interpretative standards, a medical institution specializing in the brachium).“

[Dr. Ed 2]

Sooner or later we are going to have to address the "lifetime ban" for purported mental health reasons.

Or should we also revoke the right to vote if one is labeled "mentally ill"? How about the right to marry?

[elnurmamedrafiev]

Anyone who is attracted to same sex is by definition mentally ill.

[Frank Drackman]

Ah C'mon, Man, Homosexuality stopped being a mental disorder back when the DSM 3 came out in 1980, you know, when Senescent Joe was starting his second term (and Jimmuh Cartuh finishing his first)

Frank

[Rev. Arthur L. Kirkland]

" Anyone who is attracted to same sex is by definition mentally ill. "

How does a blog operated by law professors (who drag their employers into it) attract such a remarkable concentration of bigots and knuckle-draggers?

By design.

Along a similar line, is an adult (even an ostensible adult) who actually claims to believe that silly fairy tales are true mentally ill? Is that level of delusion, or should that level of delusion, be considered normal?

Carry on, clingers.

[harryk]

Have I missed something? A valid argument for limiting magazine capacity is hunting regulations, where, f'rinstance shotguns are limited to 2 rounds in the magazine and rifles are limited to 5 rounds, depending. Nobody seems to have presented this historical limit.

[Absaroka]

I'm not sure that hunting laws forbidding spotlighting deer justify banning possession of flashlights whether one is hunting or not.

[Rossami]

The history of shotgun plug requirements only goes back to 1935. That is nowhere close to either the passage of the 2nd Amendment or to the incorporation of that right against the states in the 14th Amendment. Under the Heller model, it is simply irrelevant.

But even if that requirement were older, it would run up against the very specific context in which that regulation was passed. You could carry whatever full load the shotgun could manage except when you were duck hunting - a restriction passed because ducks were thought to be in danger of being hunted to extinction at the time.

[Bruce Hayden]

Banning larger magazines for hunting has nothing to do with banning them the rest of the time. It’s no different than issuing elk tags, or controlling the hours that you can hunt in.

As has been pointed out above, limitations on firearms that could be used for hunting are of very recent origin - from our founding, up until 1/3 of the way through the 20th century, you could hunt with pretty much whatever arms you wanted, up through machine guns, and even cannons. A friend of mine has a full auto shotgun, grandfathered into the NFA. Plugged, yes, to 3 rounds, under NE law. He got it from his grandfather who was called “boom boom” because he couldn’t get his previously broken trigger finger off the bang switch fast enough. It’s a gas to shoot, if you, like me, shoot right handed. Not as much fun for lefties, because of how it ejects shells.

How do they justify limiting hunting? Because the government has long had sovereign control and ownership of game animals. Remember Robin Hood hunting deer in the royal forest? Yes, same thing exactly. He and his men were considered outlaws and criminals because they were hunting the King’s deer without permission. Hunting of the sovereign’s game animals has required a license for at least 800 years now. Probably at least all the way back to 1066 when the Normans conquered England.

Bruen made clear that the 2nd Amdt must be interpreted in view of the documented laws at the enactment of the 2nd Amdt and then the 14th Amdt for the states. Pretty much everything since then, for the last 150 years is, effectively, irrelevant. That includes hunting regulations for magazine sizes imposed after 1935.

[The Margrave of Azilia]

There need be no conflict between the militia clause and the operative clause of the 2nd amendment.

I didn’t need the AI for this-I found there’s two levels of the militia. There’s the National Guard, which is de facto part of the U. S. armed services, so never mind them. Then there’s the inactive militia, which is men between 18 and 45 and not in the National Guard (with exemptions for people like conscientious objectors).

If you want to make the 2nd Amendment’s Militia Clause relevant, have the unorganized militia undergo training – not for foreign wars (I have no illusions about their capacity against professional foreign armies) but for natural disasters, active shooters, and other perils of civilian life.

Then you’re carrying out both parts of the 2nd Amendment, without diluting one in the name of the other.

[Rossami]

The Soviet Army would like a word with you about the capacity of unorganized militias.

[SRG]

I have enjoyed the thought of a governor calling on all males who are citizens of the state and between 18 and 45 to report for drill practice, etc. at 7.30am on a Saturday morning, or face disciplinary action.

[The Margrave of Azilia]

It would be enjoyable if you saw militia training as the punishment for some delinquency.

[Jason Cavanaugh]

You enjoy thinking of unconstitutional things you hope to see happen?

[Carl_N_Brown]

We did have recruiters for the State Guard show up at a military match at the local gun club.
And they had a booth at the local gun show the same year.
But the governor was asking for volunteers, not "calling on all males who are citizens of the state and between 18 and 45 to report for drill practice".

[Mal-2]

Has there been any attempt to square the National Firearm Act, which generally prohibits ownership of automatic weapons (and short barreled rifles, sound suppressors, and a bunch of other firearms) with the modern interpretation of the Second Amendment?

It's not impossible to own those things as a private citizen, but you do have to jump through a lot of hoops to do so, in ways that would not be permissible for owning something like an AR-15.

[elnurmamedrafiev]

It would be tough to challenge them as long as the "common use" test is in effect.

[Mal-2]

I guess the part that I don't understand is how the things covered under the NFA don't count as being in common use. Every military in the world uses automatic weapons, explosives, and sound suppressors. The fact that they aren't in common civilian use seems like it's just because that has been illegal (mostly) since the 1930s. If it would have been unconstitutional to forbid their ownership in 1934, how can it be constitutional to forbid their ownership today?

Obviously, the test can't be "was this firearm in common use in 1791", right? I'm sure there's a logical line drawn here someplace, I'm just not familiar with what the actual logic is.

[Brett Bellmore]

There's no logical reason for them to uphold the NFA if it were challenged again, but "We don't feel like going there" is a reason, if not particularly logical.

There might be one or two of the Justices, at most, who actually would be willing to uphold the 2nd amendment in full. The rest of the Bruen majority upheld a bit of it because principle forced them to a position they didn't necessarily like.

But principle's capacity to do that isn't unlimited. It took most of a century to get from being permitted to own any weapon you could afford, to where we are now. It might take as long to claw our way back to being free.

[elnurmamedrafiev]

It also doesn't help that the anti-civil rights crowd has the entire left-wing apparatus on their side to lie.

"Civilians should never be allowed to own silencers, as people wouldn't even know they were being shot at"

[Bruce Hayden]

My view is that Miller was wrongly decided, but the decision was preordained regardless, and we can be thankful that the Supreme Court had a vehicle as flawed as the hapless Miller to work with. It was preordained because the New Deal Supreme Court was very activist, and the people were clamoring to take machine guns away from the gangsters of the time.

Now they can get away with saying that machine guns aren’t commonly owned and used by civilians in this country - because they have been heavily regulated for >85 years now. Far different than the half a billion or so detachable magazines in private hands today, and esp at least half or so of them being considered “high capacity” by liberal politicians. And it just gets worse - whenever the Dems start making noise about magazine limits, I will run into a sale on quality magazines, I will buy another ten or so.

[Brett Bellmore]

That's exactly my take on Miller: It was after "The switch in time that saved Nine", and there was simply no way the Court was NOT going to uphold the NFA.

Being handed a deliberate set up test case where there wasn't any opposing counsel allowed the Court to uphold it on the narrowest grounds imaginable: "Nobody put us on notice about this thing we already knew!"

If Miller had been ably represented, every possible argument against the NFA would have been teed up, preordained to be shot down. The constitutional damage from those precedents would have been horrific.

[Rossami]

The short answer is that there has not been any attempt to resolve that conflict. The reasoning used to support the NFA (including in court decisions) has been largely overturned by modern 2A jurisprudence but it has not yet been presented back up to the Supreme Court for a review. My suspicion is that they don't want to take on the NFA directly but will whittle it away as specific cases come up. Suppressors are the obvious first choice since there is not even a rational basis for outlawing them, far less a justification that can survive Bruen scrutiny.

[Bruce Hayden]

Agreed. The Supreme Court very rarely reverses itself. Instead, they Distinguish prior decisions, until the old jurisprudence has such gaping holes in it that you could drive a truck through them.

Yes, this could be done going the other way. But that is going to be har, given the limitations they placed in Heller, McDonald, and now Bruen. Or they could just reverse those decisions, and find themselves besieged by 100 million, or so, angry armed “Patriots”.

[SRG]

Instead, they Distinguish prior decisions,

Hence the old legal joke that some decisions become very distinguished.

[ragebot]

Funny how in the rest of the civilized world, including the gun grabbers in the EU and Oz, suppressors are legal and viewed as a good thing. Not to mention that a two liter soda bottle full of cotton balls duct taped to the barrel of a firearm makes a fine low cost one shootout use suppressor and all at a cost anyone can afford.

[dwshelf]

The plain text of the constitution means nothing more or less than what five justices vote in favor of it meaning.

Analysis of the words misses the point.

[SRG]

Analogous to the line that a textualist reading is exactly what Antonin Scalia says the Founding Fathers meant.

[dwshelf]

Correct.

The two sides describe what they're doing as being different, but they both do the same thing: ideology trumps all.

The left is more transparent about it.

[MoreCurious]

More firearms, shooting more bullets faster, mean more dead children and other innocents. I'm sure that's exactly what the authors of the Second Amendment intended.

[dwshelf]

mean more dead children and other innocents. I’m sure that’s exactly what the authors of the Second Amendment intended.

I'm sure that the authors intended that an armed civilian population is resistant to most kinds of despotic takeovers (at the cost of some increased criminal victim effect).

[Rossami]

I'm sure that you're not even pretending to argue in good faith.

[MoreCurious]

I'm not arguing, Rossami, I'm pointing out facts that none of us should ever forget. And this is a particularly appropriate time to focus on the facts since, as we all recall, tomorrow will mark ten years since a Bushmaster semi-automatic weapon -- made legal by people who pretend not to realize that the word "militia" appears in the Second Amendment -- was used to slaughter a couple of dozen babies in Connecticut.

[MaddogEngineer]

How was it "made" legal? It always has been legal, except for the period of the assault weapons ban, which was not repealed but had a sunset provision. That law didn't even ban all existing weapons, only new ones. And those who passed it also allowed it lapse.

[MoreCurious]

Intentionally ignoring the point, Maddog, does not negate the fact that Justice Scalia, et al., have decided that the word "militia" is not much more important than a typographical error.

[dwshelf]

Intentionally ignoring the point, Maddog, does not negate the fact that Justice Scalia, et al., have decided that the word “militia” is not much more important than a typographical error.

It’s a supportive rather than a restrictive clause.

The left deliberately misreads it to gain a fig leaf, but they really don't require any fig leaf anyway.

[Alpheus W Drinkwater]

MoreCurious is correct, the right deliberately pretends it doesn't exist. In the OP concerning the "plain text" of 2A, the first clause is never mentioned. Not even once.

[MoreCurious]

Special attraction to N.C. ferries?

[MaddogEngineer]

You’re the one ignoring the point, that the word “militia” doesn’t mean what you would want it to mean.

It’s fine that you fundamentally disagree with the historical precedents that the militia is the armed populace, not some just elite subset vetted by the very government the amendment is designed to restrict from doing just that. Just don’t pretend that your disagreement has any foundation in law.

It’s tragic that bad people do bad things with guns. It’s ludicrous to think that it’s possible to restrict firearms in such a way that would truly prevent such things and not infringe on the fundamental individual right recognized in the amendment. You don’t like the 2A? Amend the Constitution. But don’t try and cloak your lawlessness in concern trolling ("used to slaughter a couple of babies in Connecticut") that you care more because you want to ban guns.

[Rossami]

No, you're not pointing out facts. The facts are that there are more and better guns yet fewer "dead children and other innocents". What you are doing is attempting to exploit an incredibly rare tragedy to score a cheap political point.

[elnurmamedrafiev]

Just like more instances of gay men ejaculating into other men's anuses equals more HIV and more death.

[Rev. Arthur L. Kirkland]

The deans of schools such as UCLA and Georgetown whose franchises have been stained by this blog have my sympathy.

But only if they learn from this experience and adjust their hiring decisions.

[Frank Drackman]

Umm, Jerry, wasn't it a "Stain" that convicted you????
I mean besides the testimony of 47 victims,
UCLA/Georgetown? pretty fair Hoops schools, where did you get your law degree?
I'm thinking from the carton of Count Chockula, or his buddy Frank N' Berry, and I don't like to be of Suspicious Mind (HT E. Presley) but almost like you're embarrassed of your Almer Mater, as if it might be full of um,,
"Klingers"

Frank "and next from Anal Roberts College of Laws, Jerry Sandusky!!!!!!!!!!!!!!!!!"

[MoreCurious]

Are you and elnurmamedrafiev the same person? Because it defies the odds that two people on the same blog can spend so much time fantasizing about other men's backsides.

[MoreCurious]

I see you're still day-dreaming about other men's rear ends, elnurmamedrafiev.

[ragebot]

Fuck off with this militia shit. Does anyone with an IQ above room temperature think the Constitution would have been signed if there was the slightest hint that firearm ownership would be restricted in any way.

[Joe_dallas]

Exactly - absolutely zero historical record of a limitation to only when serving in the militia - If there had been any thought of it, there certainly would have been a historical record of a debate on the limitation!