Supremes Establish an Individual Right to Gun Ownership

In an expected but no less earthshaking decision, the Supreme Court ruled today that the language of the second amendment guarantees US citizens an individual right to own guns. 

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.” In so declaring, the majority found that a gun-control law in the nation’s capital went too far in making it nearly impossible to own a handgun.

It was the first time in nearly seventy years that the court has addressed the second amendment, and the first time it has weighed in on whether the amendment guaranteed a collective or individual right.  The language of the amendment is ambiguous:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

In that case in 1939, the Court ruled that the Constitution did not protect a right to own specific guns (in that case a sawed-off shotgun), suggesting--but not clearly stating--that there is no individual right to own guns. The conservative members of the court (Roberts, Alito, Scalia, and Thomas) were joined by Justice Roberts in clarifying and refuting that suggestion:

Not surprisingly, Justice Scalia and Justice Stevens differed on the clarity (or lack thereof) of the Second Amendment. “The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.” Justice Stevens read his dissent from the bench, an unmistakable signal that he deeply disagreed with the majority.

The court concluded that the amendment protects an individual right to bear arms, but it also said that the right is not absolute, opening the door for more fights in the future. Lawmakers across the country may look to the decision as a blueprint for writing new legislation to satisfy the demands of constituents who say there is too much regulation of firearms now, or too little, depending on the sentiments in their regions. In March 2007, Washington city officials expressed disappointment and outrage when the United States Court of Appeals for the District of Columbia Circuit overturned the city ordinance. The Supreme Court ruling is sure to prompt work on a new ordinance that can withstand high court scrutiny.

It is the highest-profile case to be decided by the Roberts Court, and suggests that the Court will not blanch at the opportunity to decide in favor of conservative positions in politically-charged cases.

Discuss.

  • Kurt Chapman (unverified)
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    Well, at least they didn't dream up a right that wasn't there ala Roe v Wade.

  • Tom Civiletti (unverified)
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    So, Kurt, do you support a woman's right to shoot herself in the womb?

  • joel dan walls (unverified)
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    So, Kurt, do you support a woman's right to shoot herself in the womb?

    No, she's only allowed to shoot the rest of her family in a murderous fit of passion.

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    I was wondering if there are any legal scholars out there who might compare the US Supreme Court today to what FDR confronted in 1933 after a long period of GOP ascendancy. Seems that that might be a useful point of comparison.

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    It is the highest-profile case to be decided by the Roberts Court, and suggests that the Court will not blanch at the opportunity to decide in favor of conservative positions in politically-charged cases.

    Huh? What exactly is "conservative" about believing the Constitution guarantees individuals a right to own firearms? Seems like the court has merely affirmed a long-standing norm that has only been challenged in big cities, where the odd theory that gun violence can best be controlled by disarming law-abiding citizens somehow has become accepted truth (and without much evidence to support it.)

    I never thought of any of the Amendments to the Constitution, including the 2nd, as "Conservative" or "Liberal." They always seemed more "foundational" to me. The Heller decision seems like the affirmation of a basic Constitutional right; the most surprising thing was that it was a 5-to-4 decision. THAT is troubling.

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    Attempting to end my bolding. Sorry bout that.

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    Actually, Kurt's idiocy masks the clear parallel between these two rulings. In both cases, the Court took the most common interpretations for parts of the Bill of Rights and made them explicit.

    In the former, it was the the prohibition against unreasonable search and siezure clarified into forbidding government interference in private medical decisions. In the latter, it was the right of the people to form militias bearing armaments clarified into an individual right to keep unsecured loaded handguns in ones own home.

    The other parallel is that the opposition in both cases, is motivated by the professed desire to save human life.

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    Seems like the court has merely affirmed a long-standing norm that has only been challenged in big cities, where the odd theory that gun violence can best be controlled by disarming law-abiding citizens somehow has become accepted truth (and without much evidence to support it.)

    The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens. Which goes to the heart of why I personally disagree with this SCOTUS ruling.

    I want to know who is packing heat and who isn't. With handguns I don't necessarily know and thus can't take any steps to protect myself.

    Case in point: the recent shooting at that plastics plant earlier this week. The reports I read said that the supervisor was escorting the shooter out of the building when the shooter pulled out a handgun and shot the supervisor dead.

    The supervisor obviously didn't know that the shooter had a gun on him or he very likely would have handled the situation very differently. If the shooter had had a rifle or shotgun then the supervisor could have taken steps to protect himself.

    Handgun bans do not deprive citizens of the right to self-defense - they allow the rest of us to make more informed choices about our own safety.

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    JV--

    I posted this piece, and I chanced that editorial comment at the bottom, because some context needs to be brought to the significance of this decision.

    For 217 years, the Court has never weighed in on the question, despite the very confused language of the amendment. You suggest that it's a pure consitutional question, but the facts belie this claim. In the absence of clarity, vast political machines have been built up around the opposing interpretations of the amendment--gun rights activists on one side versus the NRA and related activists on the other.

    It's true that these two sides don't cohere into exactly the positions of the two parties, but that doesn't make them any less political.

    Moreover, the context of the last 25 years, where the GOP has allied itself with the NRA and used gun-rights as a major part of their populism, definitely makes this a "politically charged" case.

    A different court might not have taken the case or might have decided ambiguously so as not to make it a political decision. But that's not the position the Roberts Court took. Instead, it rammed a major decision through the narrow majority. So that's why I characterized it the way I did in the post.

  • Robert Harris (unverified)
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    I was waiting for the part of the opinion that limited gun ownership right to a flintlock and a blunderbuss. That would be the original intent in 1789. Right?

  • MCT (unverified)
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    In 2000 our young adult kids voted for Bush for one reason....the Democrats' stand on gun control. Yeah, they're sorry now. I am a extremely liberal in my thinking, but I can't help but notice some major issues sort of blur along the dividing line between party platforms and the old definitions of what is liberal and what is conservative. Guns and gun control is one of those issues.

    I don't own a gun, but I believe we should all have the individual right to 'bear arms'. I'm intrigued by the idea that this particular Supreme Court would uphold the Constitution. Then, questioning motive, I get to thinking about the private army, Blackwater, training in their new camp in Potrero, CA near the Mexican border. Wouldn't be very convenient for us all to return to peace time and start questioning the legality of Blackwater's arsenal, or infringe on their right to have it. Snicker.

    We here are all striving for a return to a Constitutional government through grassroots movements and citizen involvement, noisy but peaceful. But I think the founders knew exactly what language was needed in the Constitution to ensure Americans had the means to protect (and deter) their Republic from elected usurpers, as well as foreign invaders and any persons who would illegally intrude upon their homes and safety with harm in mind.

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    The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens.

    Actually the DC ban included assembled rifles and shotguns. These had to be kept in a way that prevented their quick and easy use. That's not much different than a ban when it comes to the practical matter of protecting your home from an intruder or drive-by. Of course the ban took place in 1976 and the uptick in extreme violence in D.C. happened in the mid-1980s. Doesn't seem like the ban was followed by those bent on mischief, but they never are.

    In 2000 our young adult kids voted for Bush for one reason....the Democrats' stand on gun control.

    The party loses a lot of votes over this issue, which is a real loss when you consider the number of gun-owning Democrats around, especially in the West. I hate to say we're shooting ourselves in the foot by promoting pro-ban positions, but there it is.

    The Heller decision is actually a disappointment to people with strong 2nd-Amendment views. Note that Scalia even supports bans in public places like courts, schools, and so forth. It's not an extreme position at all, and falls short of what many pro-gun proponents hoped for.

  • Justin (unverified)
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    Re: Joel's question,

    FDR was displeased with SCOTUS, because they were handing down decisions that went against the Federal govt, which FDR eagerly was expanding. FDR actually threatened to expand the number of seats on the SCOTUS, and flood the bench, in order to get more favorable decisions. After "The Switch in Time that Saved Nine," the court immediately began to more liberally decide cases, starting with West Coast Hotel and the reversal in substantive due process rulings.

    As for the parallels to the Bush-era SCOTUS, they do exist, but they are not quite as drastic. The SCOTUS has showed some of its conservative leanings for the last 15 years, including Morrison et al, but also more liberal rulings such as Lawrence v. Texas. There is no exact parallel, because the SCOTUS is in a fluid state, due to a few consistently moderate votes that tend to swing decisions. Yet, if Obama fails to win this race, the court will swing conservative, after replacing 3 judges, in a way that has not been seen in our lives.

  • Bert Lowry (unverified)
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    Jamais Vous wrote: Huh? What exactly is "conservative" about believing the Constitution guarantees individuals a right to own firearms?

    Yeah. I don't see gun ownership as Republican vs. Democrat. As near as I can tell, the 2nd Amendment is a civil rights issue.

    And the explicit position of the Democratic Party of Oregon is that the 2nd Amendment is right guaranteed by our government. That means that the government doesn't get to decide when you're allowed to excercise that right any more than they can decide when you can excercise your right to free speech or freedom from unreasonable search and seizure.

    Of course, I've never really understood why some people are anti-gun.

  • Ellen (unverified)
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    You liberul idiots are just anti-American gun haters.

    Get over yourselves and buy a gun. Any gun. And then practice with it so that you will not be a newbie idiot, but more informed on this issue. Then talk to 2nd Amernment, 2nd Congressional District Chuck. He will give you libbies a clue or two.

  • j_luthergoober (unverified)
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    Attention all gun nuts out there! Now that the oligarchic elites have affirmed your right to protect your self with lethal weaponry do yourself a favor and make sure you don't screw up. This is a warning from a loaded for bear liberal -- Gun nut; if you mistakenly shoot me for any reason what-so-ever, you will be sued beyond your wildest dreams. I will not hesitate to compensate myself with everything that you because of your negligence.

    Hey and gun nut, have a nice day...

  • j_luthergoober (unverified)
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    Hey rr, you may rest assure, that Obama's aim is true...

  • Just a Dog (unverified)
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    Good citizens need a way to protect themselves when out in public from all the violent criminals that liberalized judges have returned to the streets.

    Me? If I have to pull a gun because of a threat to my life or the life of a loved one or neighbor I will shoot to kill - not injure. I'd be concerned some idiot criminal would try and sue me and some liberalized judge would grant him his wish!

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    Here's an attractive scenario: Dick Cheney no longer needs a cumbersome shotgun for those special times when he's having a few beers with his pals, and wants to blow some holes in someones face.

    Ellen, there were several replies I could have made to your insipid, insulting, inflammatory comment, but I'll settle for just two words: Spell. Check.

  • Tom Civiletti (unverified)
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    Ellen,

    Why do you assume all liberals are anti-gun?

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    Aside from the question of whether this was a politically-motivated decision, and even the question of whether you agree with it, here's a more interesting one, spurred by Ellen's eloquence: does this help or hurt the GOP in '08?

    My first take is that it hurts them. It takes a wedge issue off the table--or substantially off the table, anyway. An already disengaged GOP electorate, dealing with the humiliation of torture, deficit-spending, Katrina-like incompetence, corruption and so on, is hardly going to be energized by this.

  • registered republican (unverified)
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    Jeff - I'd work on the second take. The party over this issue is just getting started. The IL NRA filed suit to overturn Chicago's handgun ban 15 minutes after the decision in Heller. Philly (and other cities) to follow soon (if they haven't already).

    The Second Amendment will be a lodestone around B.O.'s neck from June 26 through the general. Many gun-toting Democrats will go McCain, independent, or just stay home. He really should have signed on to that amicus brief...

  • petr (unverified)
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    the big difference between the scotus during fdr and the scotus during bush is that during fdr, especially in his second term there was a massive popular mandate for political change unlike we've ever seen in (most of) our lives. this popular mandate was backed up by the voters, the presidency and both houses of congress but was being held back by a supreme court that was still interpreting law on the political needs of the previous generations. basically, the constitution was behind the times and the supreme court needed to get with the times (and eventually did, most significantly with the reinterpretation of the commerce clause to allow full federal regulation of business).

    in the bush era what we have is a court that represents a failed attempt at a contrived constitutional revolution that would mostly be at odds with the popular will. in their current formation they will win some marginal victories like this 2nd amendment issue, and they will probably succeed at impeding some progressive changes if obama wins, but they will not achieve the radical radical reinterpretation of the constitution that they had been aiming for.

  • Steve Bucknum (unverified)
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    Bert Lowry writes, "I don't see gun ownership as Republican vs. Democrat. As near as I can tell, the 2nd Amendment is a civil rights issue.

    And the explicit position of the Democratic Party of Oregon is that the 2nd Amendment is right guaranteed by our government. That means that the government doesn't get to decide when you're allowed to excercise that right any more than they can decide when you can excercise your right to free speech or freedom from unreasonable search and seizure."

    I agree. I was a voter the day that by a vast majority the State Central Committee of the Democratic Party of Oregon took its position in favor of Second Amendment rights. I was on the Platform and Resolutions Committee that (if memory serves me correctly) unanimously sent this resolution to the Central Commitee with a "do-pass" recommendation.

    The Constitution is not owned by Republicans and the right. We as Democrats have just as much right to demand that every section and every provision of that document be preserved and protected. I for one don't see how you can make a case for taking out pieces of the rights we have.

    I support Habius Corpus. Don't you? I support free speech. Don't you? I support the right of free assembly. Don't you? I support a free press (and wish it would get its act together). Don't you? I support freedom of religion. Don't you? I support the right of due process in the legal system. Don't you? And I support the right to have my guns. Why shouldn't you?

  • joel dan walls (unverified)
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    First of all, thanks for the comments in reply to my question about how today's Court compare to the Court when FDR took office.

    Next question is, does anyone know if there are any democratic countries besides the US that have any sort of constitutional guarantees regarding firearms? My guess is no. I would further guess that the reason for fairly robust gun control in other democratic countries reflects both the constitutional situation and local cultural values. Just speculation.

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    the last thing this is a burden on Obama or any Dem. 2008 is going to be about one thing: the economy. the worse things get, the more myopic the public will become. all anyone will care about is their job, their savings, their gas, their home, health care costs, etc. the gun issues mentioned above have to do with cities, not the federal govt. the NRA will try to work against Obama on this, but people will respond with: "Yea, but what about gas prices? What about my mortgage? My job?"

    additionally, the coalition of support that is starting to carry Obama well ahead of McCain is not going to care much about guns. not high on the list of essentials for women, young voters, minorities (so-called) and labor. this election is going to be won on positives for a change: the amount of positive support Obama has. that'll be a great way to go into 2009.

  • Displaced Oregano (unverified)
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    Here's what I don't get: "the right of the people to keep and bear Arms, shall not be infringed." From a strict perspective, I ought to be able to own ANY weapon, from a .22 rifle to a ICBM or Surface-to-Air missile. I think most agree that laws against individuals possessing WMD are reasonable. If you accept that laws limiting ownership of hydrogen bombs or fully-auto assault rifles are legitimate and legal expressions of the public will, balancing social safely against civil rights, how can it be unconstitutional for a particular state or jurisdiction to attempt control of another particular class of arms, say, semiautomatic handguns?

  • Howard W. Campbell, Jr. (unverified)
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    Displaced Oregano: You're making too much sense and it's hurting my head. Didn't you hear that Obama is going to do away with Christmas and substitute a gay sex holiday?

  • Max (unverified)
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    I'm pleased that scotus upheld our 2nd Amendment, although I don't own any guns myself. I was less pleased about their decision to invalidate states' rights to determine appropriate levels of punishment for convicted child rapists, and I agree with Obama's stated view on the latter subject.

    Thus, it seems inappropriate to describe the current court as "conservative or "liberal" - they're clearly all over the map.

  • Chuck Butcher (unverified)
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    There was never any intent nor language to include cannons or other explosive devices. Arms and militias were understood to be small arms - ie firearms. For 180 years the individual right was never questioned, that move occurred in the 1970s. There is absolutely no historical basis for the argument that the right is collective.

    I am farther left than most people who comment on this site. I am not liberal or progressive, I am plainly left. I see no difference between the perceived security many of you object to in Bush's abrogation of Habeas or the 4th or "free speech zones" and the idea that the 2nd is somehow disposable on the same basis.

    None of the BOR are considered limitless, ie crying fire in a crowded theater, this hysteria is ludicrous. Most of you crying foul have no idea what so ever what the actual laws are or what the actual operation of firearms is. I'll bet, that in the face of plain physics, 3/4 of you think a bullet will throw somebody someplace or knock them down. Movie land fantasies rule. The chances that a legally owned firearm will be involved in a criminal act versus the numbers in private hands are vanishingly small.

    You willingly take your eyes off the real problems that encourage firearm violence and focus on the things. You are played for fools and certain segments of power benefit hugely from it. It is in the interest of certain power centers to let you focus on a thing rather than the conditions. 1% of the population makes more than the bottom 90% and you take your eye off the conditions created by that? How can you not have ghettoes?

    The same fear mongering crap you accuse the Republicans of is in operation on this issue; don't even look for the man behind the curtain.

  • Buckman Res (unverified)
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    ”the big difference between the scotus during fdr and the scotus during Bush...basically, the constitution was behind the times and the supreme court needed to get with the times”

    There is a mechanism for correcting the Constitution when it is seen as being “behind the times”. That is the amendment process which has been used numerous times throughout the country’s history. The job of the Supreme Court is not to amend the constitution but to interpret the constitutionality of laws.

    What FDR tried to do was stack the court with ideologues who would rubber stamp his agenda, thus disrupting the government’s balance of power, something even those in his own party were against. Even Bush hasn’t tried to do that.

    When you read how restrictive the DC law concerning rifles and shotguns was it is surprisingthe decision was this close.

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    To be honest, I'm not surprised at all by this ruling. The Constitution's fairly clear on this issue. People may disagree with it, but it's one of the initial Bill of Rights. Yes, other countries have gun controls and bans - but they also don't have a Bill of Rights that includes the right.

    I don't own a gun, never held a gun, and there isn't a gun in our house. Yet, I became a member of the Democratic Party of Oregon's Gun Owners Caucus. Why? Because this is another issue where we regularly alienate voters who would normally vote with us. And it's on an issue that is pretty clearly spelled out in the Constitution.

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    Now here's a ruling that has me worried...

    From the unofficial Lane County Bus Project blog:

    The Supreme Court took a major swipe at crime victim’s rights recently. In Giles v. California, the Supreme Court held that a crime victim’s report of a prior incident of assault by her husband could not be used against him in a subsequent trial of him for her murder a short time later. The decision struck down a California rule that provided that prior statements made to the police could be used against a defendant if the defendant’s conduct had caused the victim to be unavailable for trial.

    You can read the whole thing here.

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    Some victims rights groups have come out in support of the ruling on no death penalty for child rape. They said those who rape children are more likely to be a family member, close family friend, etc., and as such families are hesitant to send that person to death. Yes, they committed a horrible crime, but do you want to send daddy to die? So it decreases the number of people turning in the perpetrators, following through for it to go to trial, etc.

    I don't have too much problem with this ruling - I understand where the victims rights groups are coming from, and I see the death penalty (if used at all) to be used extremely sparingly. It would appear that this is one more step towards either getting rid of the death penalty or making it something that is used only in the most extreme situations.

  • Mike Clark (unverified)
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    Jeff,

    I think your 1:07:29 post is exactly wrong.

    I am a life long Republican who only today made a final decision to vote for John McCain.

    This ruling brings into relief the importance of SCOTUS choices for me and many other Republicans I have spoken to today. And Frankly, I'm a little shocked that we as a society aren't talking about what I think is the much more important lesson from today.

    Everyone should be concerned with the idea that our country was one person's swing vote away from loosing an enumerated civil right. One person's vote. I am now a much more motivated McCain supporter.

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    Interesting commentary from Eugene Volokh, which I pass along:

    There’s no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren’t just about winning elections, as I’ll note below. But winning is part of it.

    Orin Kerr adds:

    The major theme of the October 2007 Term, it seems to me, is that we have a minimalist Court with no surprises. There were no major revolutions this Term. Even the big cases were narrow and interstitial. The Court mostly took baby steps. It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit. Even these big cases were actually really narrow. Boumediene went where the Court very strongly hinted it was going in Rasul v. Bush back in 2004: The Court's reasoning was limited to the few hundred detainees at Guantanamo Bay, and did not order anyone's release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The Court's opinion only deals with child rape capital cases, of which Kennedy's own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun control laws are all constitutional.

    Grist for the mill.

  • marv knudson (unverified)
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    Is their a Constitutional guarantee to have a handgun in France? Well, for a little over forty years they have had universal, comprehensive health care. The levels of anxiety and stress are significantly lower. People who are happy intead of fearful may not need to announce that,"You better watch out for me 'cuz I am packin' heat." Then too, what is a weapon? Is a Pentagon that can not explain where or how $195 Billion dollars was spent in last years budget alone keeping you safe. Lets see, do I prefer an auditor or a howitzer. Republicans have reduced auditors and increased the amount that each is responsible for tracking from $600 Million to $2 billion. Safer? The connection between anxiety over whether or not you have a gun or whether or not you will lose your home due to a medical catastrophe. Safer with a gun or safer with a good single payer comprehensive health care plan. Zero in on the right target. When you don't need a gun because there is less crime and happier people guess you have to admit you live in a different country.

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    Everyone should be concerned with the idea that our country was one person's swing vote away from loosing an enumerated civil right. One person's vote. I am now a much more motivated McCain supporter.

    I had exactly the same satori in 2000, when one person's vote on SCOTUS took away our nation's right to elect a president.

    What I have never understood is why some people are passionate and even irrational defenders of their interpretation of the 2nd Amendment while being perfectly willing to let violations of the other amendments (notably the first) slide by with a lot of rationalization.

  • Carelton Sexton (unverified)
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    "...the right of the people to keep and bear arms, shall not be infringed."

    Note that it doesn't say, "the right of militia members" or "shall be subect to restrictions determined by a legislative majority".

    I'm surprised the SCOTUS majority opinion didn't attract 7 votes: I'll have to read the dissenting opinion to learn why the minority got it so wrong.

    The simple fact remains that private gun ownership was widespread in Revolutionary America, and the fledgling U.S. Government made no attempt to restrict ownership of weapons to militia members.

    It's only after nearly 240 years that the diction and syntax of that era could be so widely misunderstood by gun control advocates and four Supreme Court Justices.

  • RichW (unverified)
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    Well this is well down the slippery slope toward legalizing the shooting dogs and polygamists !!

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    That is modern interpretation, Carelton, but it has nothing to do with the original intent of the Second Amendment. Fortunately, we have notes from the revolutionary war period about what the Second Amendment was really about, which was standing armies.

    There was (and in some places is) a political theory that any nation that keeps standing armies, as opposed to organizing militias on an as-needed basis, will naturally use those armies to foment war. Like, for instance, sending people off to Iraq. Thomas Jefferson had even the stronger opinion that nations with standing armies were inviting tyranny (as later turned out to be the experience in many banana republics).

    So a big argument at the time was - should we have an army at all? Or should we be like the modern day Swiss, who train every one of their men in the use of military equipment, but pay absolutely nobody to be a soldier?

    This issue was very divisive, so much so that the original version of the second amendment, which basically said "No armies. Only local militias." was hacked into the form we see today. However, the clear intent of the founders was that the right to "bear arms" by the "people", meant in the context of a militia.

    In other words, the Second Amendment says "the people", not (as in other places in the Bill of Rights) "each person". Initially, it was all in the context of people who could be "raised" (i.e. immediately drafted) for local defense.

    There was also, initially, no real distinction in terms of what those arms entailed. The militia acts later passed (still in the 1700s) expected militia members when raised to bring (and pay from their own pocket for) personal weapons (swords, bayonets, pistols, muskets, rifles, petards, and powder). They also expected that some would act in the capacity of artillerists, but as a practical matter, the expense of heavy weapons made it so that they were usually kept in an armory.

    That said, however, I am not someone who believes in "original intent". I believe "evolving standards" is the way to interpret the Constitution. There are a large number of people who see the Second Amendment as the right of each citizen to bear small arms, and so no matter what the historical origins of the Amendment, it should be interpreted that way today.

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    Well this is well down the slippery slope toward legalizing the shooting dogs and polygamists !!

    ROFL

    Priceless... absolutely priceless.

  • LiberalIncarnate (unverified)
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    And we are surprised by this, why?

    Let's face it... 51% of this country are primitive barbarians. I say... let them shoot each other.

  • MCT (unverified)
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    Chuck Butcher I love what you said. And it's true we have taken our focus away from the issues that spawn violent crime. We should find a cure for the disease, not just bemoan the symptoms. Give the "masses" livable wages, and take away the fear-of-future poverty breeds and crime will drop, productivity and inovative thinking will rise.

    Crap does this mean I am Left, Chuck? aaahhahaahaaaa

  • Brian (unverified)
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    What's not to like about this decision, aside from the the disappointing 5-4 margin? If you ask me, it didn't go far enough. In my mind, the right to bear arms ranks right up there with free speech, privacy, the right to choose, etc. The Second Amendment represents a cornerstone of individual liberty, whether you choose to posses firearms or not. "And then . . . they came for me . . . And by that time there was no one left to speak up."

  • petr (unverified)
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    "There is a mechanism for correcting the Constitution when it is seen as being “behind the times”. That is the amendment process which has been used numerous times throughout the country’s history. The job of the Supreme Court is not to amend the constitution but to interpret the constitutionality of laws.

    What FDR tried to do was stack the court with ideologues who would rubber stamp his agenda, thus disrupting the government’s balance of power, something even those in his own party were against. Even Bush hasn’t tried to do that."

    the supreme courts interpretation of the law has a direct influence on what kind of republic we live in. often supreme court decsisions, or clusters of decisions, do effectivly "amend" the constitution. te commerce clause, which states that "Congress has the exclusive authority to manage commerce between the states, with foreign nations, and Indian tribes" had been used by the scotus to prevent most federal managment of the economy. the Hughes court had been blocking many of FDRs New Deal programs, finally after the 36 election and the "court packing" threat, several members of the scotus changed their votes allowing for NLRB, the fair labor standards act, agricultural subsidies, etc. it fundamentally changed the meaning of our government.

    our constitution is not very flexible. most constitutinoal change occurs in flurries of amendments, and reinterpretation of old laws with the arrival of new justices. usually this occurs in conjunction with a popular mandate for change.

    i'll make it simple:

    in fdr's case the court was standing in the way of a popular mandate for change.

    in bush's case the court was contrived to do the exact opposite, though it has not yet succeeded

  • Thomas Cox (unverified)
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    Steven Maurer - your 5:41:22 post echoed my thoughts. The Bill of Rights was created by people deeply skeptical of big unlimited government. They seriously contemplated having no professional army at all. They had just overthrown an oppressive government and were worried that the new one might grow oppressive in turn. (These were points the Federalists and Anti-Federalists largely agreed on.)

    They very much wanted to ensure that "the people" could, if it proved needful, rise up again in armed revolt against their own government.

    As for Chuck Butcher suggesting that the Founders couldn't possibly have intended to protect cannon or other crew-served weapons, note that the Battle of Lexington and Concord was sparked by a British move to seize an arsenal of privately owned cannon.

    A third poster, Kevin, incorrectly says "The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens." This is one of those statements that's so clearly untrue that it marks the writer as either so ignorant of the facts as to be unworthy of attention, or dishonest and attempting to mislead the uninformed. My thanks go to two other posters who set the record straight - DC's laws banned all possession of handguns, and they required rifles and shotguns to be stored in a manner designed to make them useless for self-defense. (Under DC's laws, you couldn't even "transport" your own pre-1976 registered handgun from one room of your home to another without a separate license.)

    The DC laws were designed specifically to disarm citizens and to prevent any form of legal self defense with a firearm. The SCOTUS ruled that the Second Amendment forbids the government from blanket disarmament of law abiding citizens.

    The hysterical headline of this posting notwithstanding, the court did not "establish" any new right - nor did they strike down the 1938 federal law restricting ownership of machine guns, nor any other restriction short of a blanket ban.

    If any of you dear readers would like to cease wallowing in ignorance regarding firearms, let me invite you to partake in handgun training by the Pink Pistols of Portland, the gay and lesbian shooting society. Straight people are welcome too.

  • Hillabomination (unverified)
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    Here's the first fallacy of the Justice Stevens, Souter, Ginsburg, and Breyer dissent:

    The parallels between the Second Amendment and these state declarations, and the Second Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania's 1776 Declaration of Rights announced that "the people have a right to bear arms for the defence of themselves and the state," 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that "the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed," id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed "[t]hat the people have a right to bear arms for the defence of themselves and the State." Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment's preamble. It confirms that the Framers' single-minded focus in crafting the constitutional guarantee "to keep and bear arms" was on military uses of firearms, which they viewed in the context of service in state militias.

    In fact, hunting was the primary use for firearms in all 13 colonies (more animals were killed than people), while personal defense (especially near the frontier) was an important secondary use. The use of firearms by organized militias was viewed as a tertiary utility, and it was understood that each citizen was required to bring their own weapons. The framers knew that private ownership of firearms was necessary for hunting, and for citizens to defend themselves and their family from man and beast.

    The framers did not anticipate "The State" (meaning any branch of State or Federal government) would seek to outlaw private gun ownership given their critical primary and secondary uses. The framers feared that limited government could easily become hegemonic government, and knew that disarming the civilian militias (aka The People) would be a necessary precursor to subjugating them. With this fear of subjugation in mind, and the fresh memory of the pivotal role played by PRIVATE CITIZENS in defeating the British, the framers penned the second amendment:

    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    The framers could not anticipate that future generations of urban Americans would doubt the utility or necessity of firearms for hunting or personal protection any more than they could anticipate that cars would eventually replace horses on city streets. The framers enumerated the militia only because they assumed this tertiary role (firearms in the service of militias) would be the one the The State would seek to infringe. So they said "don't infringe".

    The framers assumed "the right of the people to keep and bear arms, shall not be infringed" was dispositive and did not require a definition of "the people", "Arms", or "to keep and bear". Their reference to "well regulated militia" was necessary only because they knew a hegemonic State would challenge the necessity of maintaining a militia, so they inserted a prefatory clause.

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    Chuck, you are right in a lot of what you say, but there is this simple fact: guns make killing easy. stupid people, careless people, unsuspecting people, kids, drunks, punks, people scared silly by the news, momentarily enraged people, people who actually believe what they see in the movies and think guns are cool toys -- it only takes a moment to pull a trigger and destroy a life. the United State proudly wields two weapons are god-given rights and then uses them to slaughter tens of thousands of people and injure hundreds of thousands more: guns & cars.

    maybe you can interpret a right to bear arms out of the 2nd Amendment; all i know is, guns take basic, normal human failures and turn them into irrevocable tragedies. which basic constitutional right does that fall under?

  • Mr. DemocraTee (unverified)
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    And preventing law abiding citizens from owning guns would do NOTHING to keep criminals from owning guns.

    Even if you made all the guns vanish, people will still be killing each other with knives, hammers, golf clubs.

    If we adopted Saudi Arabian style corrections, recidivism drops by 98%. We could close half our jails and leave our doors unlocked, and gun ownership would go way down.

    But if Libtards insist on punishing property crimes with probation and let violent offenders reoffend over and over again, the rest of us will seek to provide for our own defense.

    The SCOTUS got this one right: too bad the dissenters let their politics get in the way of the U.S. Constitution.

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    It is not ironic, Mr.Tee (now with "Democra" inserted) that you, a strong property rights advocate, continue to make use of Mandate Media's servers, even though you have been banned from posting here because of your lying. Rather, the utter hypocrisy is completely expected, as it now seems to be the defining characteristic of Republicans.

    Still, I have to point out that you gave me an unintentional laugh when you started praising Saudi Arabia's penal code. Clearly, you must not be aware that they've recently instituted (drumroll please)... gun control.

    Your other made up falsities are too numerous and tiresome to refute point by point. But that first one was funny.

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    Chuck Butcher, I confess to have been extremely dense in understanding a point you have made repeatedly, distracted I think by your anger at persons not upholding the Second Amendment into thinking that was your point, rather than the result of it.

    That point, I now see, is that the defense of any of the rights in the Bill of Rights is strengthened by defending each and all and the Bill as a whole. I think you're quite right.

    Light dawns on Marblehead. Anyway, I hope you don't mind my restating it in case others have been misreading similarly.

    Kurt Chapman, have a look at the Ninth Amendment -- it specifically says that the fact that rights aren't enumerated "shall not be construed to deny or disparage others retained by the people." The right to privacy is exactly such a right.

    <hr/>

    It seems to me that this decision affirms an individual right to own weapons for self-defense (the Fourth Amendment also states a right "the people" that clearly is an individual right, btw, and "the people is distinguished not only from persons, but from states, Congress, and the United States elsewhere in the Bill).

    It also seems that it doesn't actually address what meaning if any the militia clause retains in the present day, except to say that it does not contradict the individual right to own weapons for self-defense.

    Yet those words are there too. What does the militia clause mean today. Oregon law defines the state militia as the Oregon National Guard. Is there a right to private militias?

  • Kurt Chapman (unverified)
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    Chris, at least your response was intellecually honest. A disclaimer - as a Libertarian mostly, I could give a fig about abortion. It really is a woman's choice to either support and nuture the developing life in her or eliminate it. No law at either the state of the federal level should even address that right of the woman. For the Warren (?) court to extend abortion rights under the veil of privacy was - well a lunicrous stretch. /but thanks for at least responding in an enlightened tone rather than the pathetically predictable posts from Tom Civiletti, Steven Maurer abd Joel Dan Walls. In his pique, Maurer even gets the reasoning totally wrong as based on unreasonable search and seizure.

    To the DC ruling - The second amendment is plain to all but those who would deprive us of our rights to own weapons. The DC law was a bold grab for citizens guns - all of their guns. I don't support unlimited ownership of automatic rifles and other such nonesense. The .22, 20-06, Mauser and 410 shotgun I currently own are sufficient.

  • Floyd (unverified)
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    June 26, 2008

    DC Gun Ban Smack Down: what’s next, Drug War?

    As an anti-drug war activist for the last 30 years I long ago came to the conclusion gun bans are about as effective as the bans on marijuana and hard drugs. I think the court made the right decision. These symbolic gestures by desperate and/or clueless lawmakers hoping to give an appearance of doing something about gun violence or drug crimes actually do more to encourage crime and violence, while taking important individual freedoms away from law abiding citizens. Meanwhile every angry punk in town is packing heat picked up on the street for a few hundred bucks.

    The big driver of the illegal gun market is the illegal drug market. The two are inseparable and for all practical purposes out of control.

    So, our system of Checks and Balances appears to work and an unconstitutional ban has been lifted, cities and states take note. But let’s hope it does not take another 30 years for the Supremes to strike down another unreasonable and unnecessary prohibition, this deadly Drug War. A “war” that kills way more young men on our streets, than on the battlefields of Iraq and Afghanistan combined. Since 2003 about 4600 US personnel have been killed in combat, by comparison there are about 12,000 murders by handguns each year in the U.S. (FBI Uniform Crime Report)

    Floyd

  • mlw (unverified)
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    There is a ray of light here - the decision leaves most mainstream gun regulation intact. Some cities will have trouble with some of the most restrictive provisions, but I was having trouble thinking of an Oregon gun control law that I thought was seriously in jeopardy.

    Looking towards the future, I think it makes sense to focus our efforts on responsible gun ownership. The decision allows reasonable restrictions. No one likes to discriminate against the disabled, but should blind people really have unlimited access to firearms? We don't have enough regulation of gun ownership to ensure that owners 1) are physically capable of using a gun responsibly; 2) able to meet at least some minimal standard of marksmanship; and 3) know how to keep a gun safely in their residence.

    Thanks to Jenni for the reference to the lanebus.org posting on the more important decision of the day.

  • Bert Lowry (unverified)
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    I'm a progressive who supports the 2nd Amendment (and the rest of the Bill of Rights). I am disappointed that some of the people who I usually consider political allies have adopted conservative views when it comes to gun control and the Constitution. Let me explain what I mean by that.

    Traditionally, the conservative view of the Consitution(especially the Bill of Rights) is: protecting people's rights gets in the way of things I want to see happen, therefore, we should get rid of those rights.

    I'm sure a bunch of conservatives will disagree and call me a "libtard," but that describes what I have seen. They oppose the 1st Amendment for war protesters. They oppose the 4th (and 5th) Amendments for people who are arrested (they call it coddling criminals). They oppose the right to habeus corpus (on the grounds that terrorism is so scary we need the government to take that right away from us in order to protect us). Basically, conservatism has always maintained that constitutional rights are on loan from the government and can be taken back when necessary. They wouldn't phrase it that way. But that's what they think.

    Progressives (including us libtards) have maintained that our Constitutional rights exist regardless of what the government says or does. One of the U.S. government's obligations is to guarantee those rights. It doesn't always live up to its obligation, but when it doesn't, it has failed in one of its most important functions. Let me restate that: the government does not grant us our rights; it protects them.

    I am dismayed that, in the case of the 2nd Amendment, people I ordinarily respect have adopted the conservative view that you can revoke a Constitutional right if it's inconvenient. I agree that some problems could be solved faster if we disregard some rights. But it is not worth the price. Our Constitutional rights are too important to give them away just to try to solve a problem that could be solved in other ways.

    I hope I have struck the right tone. I don't want to sound angry -- just a little disappointed.

  • joel dan walls (unverified)
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    The liberal/conservative, left/right pigeonholing is sort of pointless in this entire discussion.

    I'm not some sort of kneejerk liberal anti-gun bozo. I've fired real guns. I went to the trouble of taking a 3-day-long course in firearms use. What I came away with was a deep impression of the power of guns, as well as the conviction that I never wanted one. I also saw how seductive the power of guns is for some people.

    I wish there were not such a fascination with guns embedded in the collective American psyche, but there it is. And I'm more concerned with that fascination than with the Supremes' latest ruling, because the consitutional right to "reasonable" gun ownership would be uncontroversial if there were no widespread cultural attachment to guns. Perhaps this latest Court ruling will shift the entire debate away from where it has been and towards a discussion of why deadly force holds such seductive power for so many Americans.

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    Steven Maurer - your 5:41:22 post echoed my thoughts. The Bill of Rights was created by people deeply skeptical of big unlimited government. They seriously contemplated having no professional army at all. They had just overthrown an oppressive government and were worried that the new one might grow oppressive in turn. (These were points the Federalists and Anti-Federalists largely agreed on.)

    Okay...for those of you who hate minutiae and nitpicky arguments--stop reading now.

    Our founders didn't just contemplate having no professional army--they actually eschewed it and deliberately didn't have one. Jefferson considered standing armies oppressive: a way for iron fisted rulers to subjugate the people. I believe in fact that America's first standing army didn't happen until 1917 under President Wilson after Congress declared war on Germany.

    The militia, under our founders, was the general citizenry. As we didn't have a standing army, the founders believed that in order for our new country to defend itself, the citizens needed to have a gun and know how to use it. That's how we defended ourselves during the War of 1812, in fact.

    That was how the founders intended things to be. And frankly, the Supreme Court seems to have completely ignored intent to a great degree in this ruling, in my opinion.

    Once we installed and established a standing army, the well-regulated militia reasoning of the founders became moot.

    Personally, I agree with the right of individuals to own firearms. However, I also agree with the regulation of firearms and their accessibility--and I don't think that those two are in contradiction at all.

  • Steve Bucknum (unverified)
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    Hillabomination writes, "In fact, hunting was the primary use for firearms in all 13 colonies (more animals were killed than people), while personal defense (especially near the frontier) was an important secondary use."

    Just a note: 13 Colonies aside, to this date more animals are hunted and killed in these 50 States than there are people killed by fire arms in any given year. I don't know what the national ratio is, but around here it is huge. When you include the big animals like deer and elk, and then the small animals like the bird hunts - I would think we are probably at 20,000 to 1 ratio, if not higher.

    I know some of you think that hand guns are not used for hunting. Generally that is true, but often a hand gun is used for a final shot if a larger animal is wounded. There is no way to track what kind of gun is used in hunting, but I'd hazard a guess that more animals are killed per year with hand guns than people are killed.

    So, the point of my comment is that Chuck Butcher has it about right. We need to look beyond the guns if we are concerned about violence in our society. We need to look at causes such as poverty, desperation, lack of education, lack of opportunity, etc. We even need to look at taxation, or the lack of a fair and equitable taxation system, as part of the underlying problem that creates violence in our society. Violence is not a mechanical problem attributable to the weapon in hand, it is attributable to the hand holding the weapon and the complete environment that the person connected to the hand is within that promotes, tolerates, creates, and punishes or doesn't punish violence.

  • (Show?)

    The decision says, in effect, that: (1) at the time the Second Amendment was adopted "the people" had always had a right to keep and bear arms (kba) and (2)the militia prefatory phrase merely creates the opportunity for militias to be organized by those people.

    The other view of the issue is by far the more persuasive. The Amendment is all about maintaining the security of a free state. It guarantees people the right to do become part of a militia when one is needed to defend the state. Steve Maurer's analysis frames this well when he writes: "This issue was very divisive, so much so that the original version of the second amendment, which basically said "No armies. Only local militias." was hacked into the form we see today. However, the clear intent of the founders was that the right to "bear arms" by the "people", meant in the context of a militia."

    The real issue is yet to be decided and the court left lots of wiggle room. Are "the people" going to be allowed to have and use rapid fire assault rifles? Well, now the prefatory "militia" phrase has been erased from the Amendment. So it's likely that assault rifles will be recognized as purely military weapons for which there is no legitimate use because now the well regulated militia context is gone. Banning assault rifles will definitely be an improvement on the way to a re-written Second Amendment.

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    Kurt Chapman:/b> even gets the reasoning totally wrong as based on unreasonable search and seizure.

    Roe v Wade was based on the "right to privacy". The word privacy itself, however, exists nowhere in the Constitution. Rather, it is implicit in the fourth Amendment, which forbids "unreasonable search".

    Again, we seem to have attracted more than our share of Republicans, some, like Kurt here, pretending to be their more intellectually honest Libertarian brethren (though clearly he's not). While it is making for a livelier discussion, it does mean we all are having to put up with the Republican penchant for inventing falsities out of whole cloth to advance their arguments.

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    That will teach me not to preview.

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    Maybe Steve, but if one time does it, you're a better man than I, which of course may be perfectly true.

    Bert, there is a slightly odd thing going on in this discussion, which is that a fair number of folks who say I'm left (or progressive, or liberal, or a Democrat) and I support 2nd Amendment rights, are writing as if none of the others of you exist. I'd say people who express a version of that opinion make up about half the non-troll comments.

    Further, you seem not to be acknowledging in any way the four or five people who have said things along the lines of "I don't own a gun, but I support the 2nd amendment/think this decision is correct that there is an individual right to own guns.

    I count one serious argument against the decision (by T.A. Barnhart), one snotty one (J. Luthergoober), one "it could have been worse and we can live with this," one apparent argument against by reductio ad absurdum, three or four wry jokey comments that might indicate the authors would have not have been unhappy if the minority had prevailed, but maybe not, and not strongly enough so to argue about it, and Joel Dan Walls, whose first comment suggests strong concern with the family violence dimension, but whose other comments suggest that's not the beginning or end of it for him.

    Which makes for a substantial majority of the non-trolling left/progressive comments agreeing with you, maybe a little movement toward agreement on legal grounds, and a degree of shift toward supporting Chuck Butcher's effective answer to "what next" for those who may have been opposed or doubters in the past. I'm puzzled why you can't take yes for an answer and/or are blind to the actual pattern of the comments, and thus are "disappointed" about the discussion here.

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    So it's likely that assault rifles will be recognized as purely military weapons for which there is no legitimate use because now the well regulated militia context is gone. Banning assault rifles will definitely be an improvement on the way to a re-written Second Amendment.

    To read the second in a vacuum ignores the context provided by the Federalist Papers.

    To frame the argument as guns being either for protection against foreign invasion or hunting ignores the context provided by the Federalist Papers.

    The gun are there specifically as a deterrent to the state's inevitable impulse to acquire more and more power vis a vis the individual. If the price of creeping tyranny in PR and Thugs is sufficiently high, it acts as a deterrent to authoritarian government, despite the intevitable outcome of any individual encounter in favor of the guys with helicopters and radios.

    You know, the same reason the other nine amendments are there.

    <hr/>

    Also a general note the Excitable Boys. Remember in Freakonomics the statistic is that if you have children, guns, and a swimming pool, the children are 500% more likely to drown than to die in a gun accident.

    Now a handgun is specifically designed to kill a person. That's what it's for. I'm sure that the overt intent of owning a gun is offputting to many, but honesty is still useful in this or any discussion.....

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    Let me see if I can turn the italics off.

  • Douglas K. (unverified)
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    The second amendment speaks of the right to keep and bear "arms." "Arms," not "handguns."

    DC's ban may have been overbroad, but I don't think the Second Amendment can fairly be read to preclude a handgun ban, so long as other "arms" are legal to keep and bear. After all, not many people -- except maybe a few extreme libertarians -- think we should let the average citizen walk around packing an AK-47, a few hand grenades, or a flamethrower. The government clearly has the power to ban some "arms" consistent with the Constitution.

    Banning certain classes of "arms" does not offend the constitution, as long as people have reasonable access to some weaponry.

  • Miles (unverified)
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    Echoing Chris Lowe's comment, both Chuck and Bert seem to be arguing against ghosts. I haven't counted, but I think there are more comments of the "I'm a liberal and this is a good ruling" variety than anything else.

    I do take issue with the argument that no logical person could come to a different conclusion. Four respected SC justices did just that, and it's worth reading their dissent. This was a close call. Even the NRA knew that, which is why they did everything in their power over the last few decades to PREVENT similar cases from reaching the SC. Until Alito and Roberts were confirmed, they knew they would lose this issue 5-4 or even 6-3.

    That means that the government doesn't get to decide when you're allowed to excercise [2nd amendment rights] any more than they can decide when you can excercise your right to free speech. . . .

    Couldn't agree more, which is why the SC indicated pretty clearly that reasonable time, place, and manner restrictions are okay. If we can apply the same TP&M restrictions to firearms that we can to speech, gun control advocates are going to be pretty happy. After all, you can't walk into a school, church, or business and make a political speech anytime you want. You can't disrupt others with your speech unless you get a permit. And you can't engage in speech that is potentially harmful, such as yelling "Fire!" or inciting a riot.

    This decision means that the government will have to show that there is a legitimate public interest before passing gun control measures. And those measures will have to be the least restrictive possible in order to achieve the desired result. Sounds okay to me.

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    Pat Ryan sez: "To read the second in a vacuum ignores the context provided by the Federalist Papers."

    To read out the militia/security/free state language, as the Court has done, ignores more than mere legislative history (the Fed. Papers). Doing so ignores the said militia, etc., clause. Ignoring the plain meaning of words in statutes/constitutions is contrary to the rules of construction thereof and is a tool of idealogues like the majority on today's Court.

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    Pat Ryan also wrote: "The gun are there specifically as a deterrent to the state's inevitable impulse to acquire more and more power vis a vis the individual. If the price of creeping tyranny in PR and Thugs is sufficiently high, it acts as a deterrent to authoritarian government, despite the intevitable outcome of any individual encounter in favor of the guys with helicopters and radios."

    Pat's not the only one to say this, only the last one to do so. It ain't true any more than that there is a Santa Claus. I ask you, Pat, has George W. Bush felt deterred by the right to kba? Not one iota! Did the slave-owning South prevail by vi et armis against what they called the war of northern aggression? Nope. The right to kba is there to help maintain the security of a free state by providing for a well-regulated militia. Except that now we don't have the military rationale, just an unfettered rkba.

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    Pat's not the only one to say this, only the last one to do so. It ain't true any more than that there is a Santa Claus.

    Yeah, Lee at least I'm delusional in good company:

    Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defence be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? -- Patrick Henry

    "To disarm the people... was the best and most effectual way to enslave them." -- George Mason

    Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the people are armed, and constitute a force superior to any band of regular troops. -- Noah Webster

    "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... " -- Samuel Adams

    "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms." -- Thomas Jefferson

    "No Free man shall ever be debarred the use of arms." -- Thomas Jefferson

    "I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."--George Mason

    And the Big One from Hamilton:

    " ... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights ..."-- Alexander Hamilton

    My fellow Santa believers. Think I'll keep 'em.......

  • Chuck Butcher (unverified)
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    Lee, You have a hobby horse and ride that sucker hard, don't you? Dragging ole Santa into this doesn't bring much credence. An armed society creates the MAD of the Cold War variety. The fact that the State still stands unassaulted means that people still believe in the ballot to rectify GWB. It would be incredibly dangerous to convince me that the ballot does not exist, your ignorance is appalling. I will absolutely not detail in any manner, whatever, the mechanisms that make this statement true. This much I will tell you, I know any number of shooters with weapons that can reach out over 3/5 of a mile and make someone extremely ill with a firearm with one shot, including myself.

    As for the general uprising of the sort you seem to refer, I doubt any matter of principle would bring that on, the Revolution was not instigated by the masses, either.

    The funny thing about rights is that they exist outside the purview of those as yourself or GWB. The BOR acknowledges these predating the Constitution.

    A note about your quote of the 2nd, "a free state" you may notice is not capitalized nor is "state" used with a determinative modifier, it is a state of being not a physical location or government. You attempt to associate it with the government, sorry. It is a fact that during the Ratification it was specifically noted that the 2nd is not about hunting or sport but that it would surely enhance those usages. How you get from any of these points to a collective right is unfathomable. Miller was specifically about the militia applicability of a sawed off shotgun, nowhere in the decision was any question raised regarding memebership in a militia. Not one sentence. Collective right was not brought up until the idea of banning gained currency and a method of justifying it required. The fact that 4 justices decided to see it that way is disturbing, just as the fact that 4 justices saw Habeas as disposable.

    This is about authoritarianism, not left or right and you can find plenty of that mind set anywhere.

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    so, Pat & Chuck, what you're saying is that you are ready, if need be, to take to the streets and start shooting people. that's basically what it comes down to: your right to bear arms, besides allowing you to feed your family and deter criminals, will enable you to maintain democracy and liberty under the Constitution because you are willing to go shoot people.

    in fine, other Americans. the "wrong" Americans. the ones what be taking away your liberties at the point of a gun.

    oh yea, we know how well that works. and there's no doubt that the people who use their guns to protect my freedom will be the "right" Americans. they will assuredly have my genuine interests at heart. i will sleep real good tonight knowing i am protected in my liberties by trustworthy gun-toting Americans. it's the same reason i enjoy my walk to work in the morning, knowing all them drivers have their eyes open for me and are driving ever so carefully to ensure no harm befalls me.

    and while it's clear i find this line of thinking lacking in merit (words i choose in deference to my friendship with and respect for P&C), i also know that neither gent is thinking that's the most important thing. as both have said repeatedly — and i fully agree with this — the real need is to protect our freedoms, not with a gun but with political action. if we ever get to the point where we have to resist our own government thru force, we will have failed as a nation and no one really needs to bother at that time.

    happiness is not a warm gun; it's a freely cast ballot and democratically run government.

  • Mssr. Ti (unverified)
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    Pat & Chuck,

    Thank you for restoring my faith in liberalism.

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    A third poster, Kevin, incorrectly says "The DC ban was on handguns and explicitly excluded rifles and shotguns. So it's not accurate to characterize it as "disarming" citizens." This is one of those statements that's so clearly untrue that it marks the writer as either so ignorant of the facts as to be unworthy of attention, or dishonest and attempting to mislead the uninformed. My thanks go to two other posters who set the record straight - DC's laws banned all possession of handguns, and they required rifles and shotguns to be stored in a manner designed to make them useless for self-defense.

    Requiring rifles and shotguns to be disassembled does not constitute a ban. So in fact my assertion was correct. But anytime a Libertarian/Republican accuses me of being ignert I consider it a badge of honor.

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    I agree with Chuck and Pat to the extent that it seems abundantly clear in the full historical context that the militia aspect meant the ability to wrest control of our own Republic away from a (future) despotic federal government as much as it referred to forming militias to help the federal government fight off a foreign aggressor. I don't see any way to avoid that understanding from the full context of the writings of Thomas Jefferson alone, let alone those of several others too.

    However... Douglas K hit the proverbial nail squarely on it's square head with this gem:

    Banning certain classes of "arms" does not offend the constitution, as long as people have reasonable access to some weaponry.

    Exactly!

    Banning handguns does not meaningfully inhibit the military capability of a militia for a variety of reasons. Thus it does not meet the definition of infringe - which in this context means " to encroach upon in a way that violates the rights of another" since a militia formed with just long rifles would actually be preferable in many circumstances to a militia of just handguns.

  • Gordon Morehouse (unverified)
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    I'm WAY late to the party on this, but Steven says:

    it was the right of the people to form militias bearing armaments clarified into an individual right to keep unsecured loaded handguns in ones own home.

    Where, exactly, did the Supreme Court specify that handguns may be explicitly kept unsecured? California has tough regulations regarding locking devices and gun safes. I don't see anything in the ruling preventing any level of government from requiring that people store their weapons securely. It follows that people would then be criminally liable for negligent discharges of unsecured firearms. As a very left-leaning handgun owner I have NO problem with that concept.

  • Gordon Morehouse (unverified)
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    Bert Lowry says: They oppose the 1st Amendment for war protesters. They oppose the 4th (and 5th) Amendments for people who are arrested (they call it coddling criminals). They oppose the right to habeus corpus (on the grounds that terrorism is so scary we need the government to take that right away from us in order to protect us). Basically, conservatism has always maintained that constitutional rights are on loan from the government and can be taken back when necessary. They wouldn't phrase it that way. But that's what they think.

    This goes to a point which I've often thought of for a long time. Conservatives aren't about 'conservation' of anything when it gets in their way. They're only pro states rights until states get uppity and start marrying gays and sending black kids to school (and many of those 'conservatives' were Dixiecrats). In a pure political sense, a true 'conservative' would be an ACTUAL strict Constitutionalist, ie not using that as a code word for being a neocon patsy.

    Miles said: Couldn't agree more, which is why the SC indicated pretty clearly that reasonable time, place, and manner restrictions are okay. If we can apply the same TP&M restrictions to firearms that we can to speech, gun control advocates are going to be pretty happy. After all, you can't walk into a school, church, or business and make a political speech anytime you want. You can't disrupt others with your speech unless you get a permit. And you can't engage in speech that is potentially harmful, such as yelling "Fire!" or inciting a riot.

    Yes. States, counties and cities should be able to draft gun control laws which make sense for them within the bounds of what is guaranteed to us by the Constitution. When I decided I wanted a handgun, the longest part of the process was waiting for shipping to my FFL dealer. A gun is a deadly weapon whose primary intent is to kill something. A car is a transport device that happens to be fairly likely to kill something. In Oregon, we require more education and testing with cars than we do with guns in order to obtain them. Personally, I think we should require more education, testing and safety regulations for both cars and guns.

    As a responsible firearms owner it's my duty to keep my weapons secure and to be well trained in their operation. Beyond my personal practice and research and reading, I will be taking classes in their safe and effective operation as my budget allows but my personal issue here is that I wasn't ever required to, and I'm only required to take a very basic class if I want a concealed carry permit. I'd gladly submit to mandatory training and testing in order to exercise my right, particularly to concealed carry. With that right comes heavy responsibility.

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    (One last comment before I put this thread, and myself, to bed.)

    Pat Ryan's series of selected quotes, a highly selective subset chosen specifically to enhance the idea that personal arms are useful against a tyrannical government, ignore the salient fact that the founders making those arguments lost the political argument. The simplest and most efficacious way of preventing standing armies from being used by tyrants to oppress the people - outlawing them - was ultimately rejected.

    The reason then was the same as it is today: professional armies are vastly more effective than part time militias, and abstract theories of future tyranny were no match for the painful memory of recent occupation by the English king. Instead, the founders set about creating both the finest army (and navy) in the world, and instituting heretofore unheard of traditions in its citizen soldiers, such as expecting them to disobey unlawful orders, even given by a commanding officer.

    This - not some absurd legalization of pistols or other arms - is what actually protects this nation from tyranny. The often stated assertion that legalized small arms protects us from anything is laughable. No group of right wing survivalist kooks, would last one hour against the power of the United States military, no matter what they could legally buy. (As if legality would even matter at that point.)

    Our safety, our essential freedoms, are guaranteed not by hardware, or even laws, but by the essential honor of the brave men and women that make up the United States military. With only a few exceptions, they are, and seek to remain, the "good guys", even in terrible conflict.

    The President and his Republican cronies have besmirching that honor by coercing our military into the performance of inhuman acts, quietly forcing the retirement of all who objected, is perhaps the most unpatriotic and fundamentally anti-American act I have witnessed in my lifetime. The members of the military know it too, which is why they overwhelmingly support Barack Obama.

    Those who accuse others of having a "pre-9/11" mindset have a pre-1776 mindset. At their core, they are royalists, economic feudalists, and in the Revolutionary period clearly would have been Tories siding with the King.

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    Gordon Morehouse: Where, exactly, did the Supreme Court specify that handguns may be explicitly kept unsecured?

    I thought that last was going to be my last post on this topic (sigh).

    The DC law allowed rifles and shotguns, but only if they were disassembled into a state that they weren't immediately usable (only for the mythical "necessary armed insurrection" against the U.S.). Heller rejected the argument that this was sufficient to be compatible with citizens' Second Amendment rights, so while by no means has everything been litigated yet, the right to possess some weapon usable at a moment's notice appears to be envisioned by the Court to be part of the Second Amendment. Whether you define a trigger lock as "securing" a weapon is highly debatable, especially given the cheapness of so many of them.

  • Gordon Morehouse (unverified)
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    Steven, I guess my argument is that the ruling may be interpreted to block onerous requirements of keeping firearms disassembles at all times, etc, but I still don't see how it's broad enough that it could be construed to prevent government entities from requiring that firearms be secured when one might reasonably expect that they be -- for example, when unattended. If you leave your home for the day and there's a gun inside lying around loaded and unsecured, you are asking for trouble.

    Also, GunVault among other manufacturers make "no look" pistol safes which can be opened by punching in a combination by feel -- there are grooves where you slide your fingers and then punch buttons under your fingertips in a given sequence. This can be accomplished in total darkness in seconds. With these types of devices and some practice, there's no excuse for leaving loaded guns lying around. They can be secured and yet still ready to use.

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    To Steve and TA, Ill offer one more comment in two parts:

    My post with the quotes was in response to Lee's assertion that this argument was not historically legitimate. And hell yes the quotes were "a highly elective subset". Guess what. I know that there was a fierce debate among the founders too.

    Also, don't patronize me without reference to my actual statements up thread. I specifically stated that in any theoretical encounter the State would always win.

    It is the threat in the aggregate that I argue to be a deterrent to nascent authoritarians.

    <hr/>

    I can make these arguments without impugning the integrity of the arned forces.

  • Hillabomination (unverified)
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    Shocking B/O Headline: Supremes Establish an Individual Right to Gun Ownership

    "No freeman shall ever be debarred the use of arms." -- Thomas Jefferson, Proposed Virginia Constitution, June, 1776.

    "Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson, Commonplace Book, 1774-1776.

    In fact, the framers knew that private ownership of firearms was pervasive in Colonial America. The mere fact that private ownership of firearms has persisted for the last 240 years is proof the 2nd Amendment protected this right. Ironically, it required a draconian ban on private ownership/storage of firearms by the D.C. City Council to require an initial interpretation of the 2nd Amendment.

    The English Language has evolved in the past 240 years, making it possible to misinterpret the constitution. For example, what does the term "well-regulated" mean? A modern reader might assume that "regulated" implies the oversight of the state, given our current subordinance to government regulations.

    The following usage examples are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

    1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

    1714: "The practice of all well-regulated courts of justice in the world."

    1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

    1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

    1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

    1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

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    No freeman shall ever be debarred the use of arms." -- Thomas Jefferson, Proposed Virginia Constitution, June, 1776.

    "Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson, Commonplace Book, 1774-1776.

    The problem with these quotes are..they're not in context with Jefferson's belief that the U.S. should never have a standing army. Jefferson believed that our country should be defended by individuals who know how to properly handle a gun. He never envisioned that our nation would grow as it did (hell--until he was President he never thought we'd be industrialized, much less become what we are today).

    Once a standing army was established, the well-regulated militia clause becomes a pretty shaky foundation for the 2nd. Which is why, IMO, Justice Stevens has such a strong dissenting opinion. There is a very conservative activist judiciary on the Court right now and I believe they're ignoring the intent of the founders with this decision.

  • Terry (unverified)
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    Listen up, all you gunslingers out there who argue (foolishly) that the Second Amendment was designed in part as a check on the danger of government excesses. Yes, I mean you, Pat Ryan and Chuck Butcher.

    The Constitution is the bulwark, with its fastidiously enumerated checks and balances, against a government run amok, not the fear of citizens taking to the streets with their fintlocks and muskets. And the Constitution, I remind you, predates the Bill of Rights.

    As my older brother (he advocates the abolition of all handguns, as do I) wrote yesterday in a guest post on my site, the Second Amendment surely does not confer an individual right to "keep and bear arms."

    He elaborates today in e-mails to my gun owning younger brother who disagrees:

    "The argument essentially boils down to whether 'A well regulated Militia' was the sole reason or just one example for 'the right of the people to keep and bear arms' ".

    My older brother's reponse:

    "I agree. It boils down exactly to that. Unfortunately for the pro-gun nuts, the 'well regulated Militia' reason is the only reason that actually appears in the amendment."

    In a follow-up e-mail he wrote:

    "If the Framers had written the Second Amendment this way - 'The right of the people to keep and bear arms, shall not be infringed' -- [Jerry] wins the argument.

    "So, why didn't they just write it that way? If all the Framers wanted to do was ensure that the government could not prohibit individual ownership of guns, wouldn't the simple statement above have been sufficient?

    "The inconvenient truth is that the Framers prefaced that simple statement with an inconvenient (to gun nuts) phrase --'A well regulated Militia, being necessary to the security of a free State...'

    "Why in the world would the Framers have gone to the trouble to add that phrase? And how can the gun nuts just flat out ignore it?"

  • Chuck Butcher (unverified)
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    Once again, in no way is a standing army a deterrent to the institution of tyranny nor is it in any manner a reflection of the fact that humans arm themselves and always have. The well regulated militia is one of the reasons, it is not exclusive, its existance is justified by the "a free state" part of the statement.

    Carla's argument hinges on adding words or thoughts that aren't in the 2nd. It does not say "Only because a well..." It is a fact that the idea of a collective right being the meaning is historically very recent, well later than the developement of machine guns and Presidential assassinations. In the face of the Civil War the 2nd wasn't tinkered with, that says something in itself.

    Kevin loves to ignore the military and civil usagae of handguns, they are the quintessential close range, close encounter weapon, they also do not have (generally) the problem of over-penetration, ie shooting someone at close range with a rifle means that bullet will exit at a very lethal velocity. I suppose watching ER means you're qualified to diagnose brain surgery? If you don't know about guns how the hell can you expect to be taken seriously? You propose to interfere with rights on the basis of what? Movie magic?

    There are a lot of things printed that I don't like and that can be easily shown to reinforce and incite hate and crimes - do you propose to ban printing presses because of that or just writings involving civil disobedience or those involving race? Some people will abuse rights, that is a fact, the 'thing' is not the issue, the behavior and its causes are.

    A firearm is a powerful weapon and it is a concrete exemplar of a civil liberty as well as an almost genetic disposition to be armed. Mucking about in that arena means you are going to get serious blowback. (blowback - the escaping gases from a firearm's chamber toward the shooter - our very terms of language)

    Stevens didn't like the opinion for reasons beyond the Constitution, Scalia's opinion also has garbage in it -ie phoning. The decision and dissents are gooped up with political considerations, that is unfortunate and detracts from the meaning of the decision. As a Constitutional issue the thing was pretty simple, the social and political considerations mucked it up.

    There is a lot of extra-Constitutional verbiage running around this thread, that isn't about the Constitution nor the literature surrounding the Ratification, it is all about I don't like this or I like this. For Pete's sake, Barak Obama early in the Primaries recognized publicly the individual right - it is the fallout that has people going off. The agenda of the draconian gun control advocates drives their analysis, not the literature nor history. If you think you're that right on the issue, amend the Constitution, the problem is you do not have the support required. If you think that the times preceding Ratification until around WWII were not firearm violent, you have not paid attention, and they did not spark this collective rights idea.

    The decision at this time is a function of politics just as its not coming forward since the Sullivan Act was political. The previous SCs didn't want to rule on this, it was going to go this way, margins might have differed, or there would be an explosion. The majority fell all over itself trying to keep this decision very narrow in scope and it still is going to have a bunch of legal fallout for draconian or capricious laws.

    Lets connect our brains folks, there isn't a poster on this thread with any desire to be confronted in their home or on the street by a criminal armed with a gun. Not one. No one on this thread is in favor of murder or accidental shootings (opinions about suicides belong to the suicide). Move forward from there.

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    Kevin loves to ignore the military and civil usagae of handguns, they are the quintessential close range, close encounter weapon, they also do not have (generally) the problem of over-penetration, ie shooting someone at close range with a rifle means that bullet will exit at a very lethal velocity.

    It seems that you're expressing a concern about collateral damage. If so then I have to point out that it's a vacuous argument since missing the target completely is a vastly greater source of potential collateral damage.

    2000 data from the NYPD found that officers involved in actual on-the-job shootings hit their target less than 16% of the time. And they train regularly at shooting ranges. How much worse would it be among the average gun owner who shoots their weapons much less often?

    If you're concerned about stopping power then I'd point out that an FBI study found a .223 Remington from a rifle had less chance of over-penetration than a 9mm Luger handgun round.

    I suppose watching ER means you're qualified to diagnose brain surgery?

    If you say so. Personally, I don't watch ER so I wouldn't know.

    If you don't know about guns how the hell can you expect to be taken seriously?

    I don't believe you'll take anything I say on this subject seriously unless it conforms to your pre-existing opinions. C'est la vie. That reality doesn't make your argument any stronger or mine any weaker.

    You propose to interfere with rights on the basis of what? Movie magic?

    (begin sarcasm) No, not movie magic... TV magic! Gun Smoke to be precise. Festus Haggen was the fount of all knowledge, don't ya know? (end sarcasm)

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    If you think that the times preceding Ratification until around WWII were not firearm violent, you have not paid attention, and they did not spark this collective rights idea.

    A-historical as always, Chuck.

    The first ruling that a state legislature could regulate the manner by which guns could be used was in Amyette v State in 1840. The collectivism argument about militias was first reviewed by the US Supreme court in 1820, and the context of the case sheds a great deal of light on the role that "a well-regulated militia" played in common understanding at the time.

    As to the argument that the term "regulate" was not used in the context of, well, regulation, let's not forget that the word "regulate" appears elsewhere in the US Constitution in the context of both regulating commerce and maritime regulation.

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    Carla's argument hinges on adding words or thoughts that aren't in the 2nd. It does not say "Only because a well..." It is a fact that the idea of a collective right being the meaning is historically very recent, well later than the developement of machine guns and Presidential assassinations. In the face of the Civil War the 2nd wasn't tinkered with, that says something in itself.

    We don't tend to interpret the Constitution based on the words of the document alone--but by the intent of our founders, Chuck. Hence the use of the Federalist Papers in many a Constitutional/BofR discussion. That's also why we bring in the writings of Jefferson--especially in a discussion of founders intent on First Amendment matters--as his writings are rather extensive.

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    One other point: It should not be lost on anyone that the NRA did not bring this case before the Supreme Court until Bush put 2 more appointees on the bench, nor that Thomas, Scalia, Alito, and Roberts -- the 4 justices who form the court's activist conservative core decided the way that they did in this case.

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    Carla Axtman: We don't tend to interpret the Constitution based on the words of the document alone--but by the intent of our founders, Chuck.

    Actually, there are two ways: "Originalism", which is what you're talking about, and "Evolving Standards", which is generally what Chuck was describing.

    As I noted in my first comment in this thread, it seems (some) liberals and (most) conservatives have switched Constitutional theories on Heller. Carla, you are essentially arguing for the exact same legal doctrine that was used against Roe v. Wade: the founders didn't specifically interpret the language then the way it is commonly interpreted today. Republicans are arguing the precise opposite.

    Both ways of interpreting the Constitution has merit, but I feel if you choose one way, you ought to stick to it. To me, Evolving Standards is the only way to go, as otherwise we are stuck without guidance, as new technology this nation's founders could never have dreamed give us all sorts of new issues to tackle.

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    Carla, you are essentially arguing for the exact same legal doctrine that was used against Roe v. Wade: the founders didn't specifically interpret the language then the way it is commonly interpreted today. Republicans are arguing the precise opposite.

    Steve--while I strongly agree with the ideas behind Roe and am a staunch pro-choice woman, Roe is generally thought by many legal experts to be very weak reasoning and bad precedent. Its my opinion that Roe will eventually be overturned and that the battle will be won at the state level.

    Its certainly not what I would prefer..but I think that's where it's headed.

    I also think this particular 2nd case is weak and could very well eventually be overturned.

  • Oh my (unverified)
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    "Well regulated" has a very different meaning from "regulate".

    Kind of like "time for my constitutional" is only tangentially related to "Constitution".

    The larger reality is that the framers of the U.S. Constitution could hardly fathom the size and scope of Federal powers today. They feared that giving too much power to government would undermine individual rights, and they were right.

  • Chuck Butcher (unverified)
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    Carla, the Constitution as a whole is either the creation of governmental units or limits on those, it is extremely chary of granting powers. Roe V Wade was an expansion of limits on government using essentially the idea of privacy. What you are proposing to play in the case of he 2nd is an expansion of governemental powers into a specifically stated limit. There is a huge difference. This stands with Habeas and the 4th as directly stated limits.

    Sal is rather full of stuff as usual, the SC has refused to hear cases. The SC has not wanted to rule on this, for political and social reasons. (they also fell all over themselves to narrow this) Sal will nearly lose his mind on this issue, an issue about a thing but how much of that heat ever gets into issue of the reasons for criminal use of firearms? You won't find Sal getting all het up about plutocracy and the institutionalization of poverty. You won't find Sal getting crazy about the crushing of out-of-poverty job wages.

    There are direct contributions to firearm violence by governmental policy, the War on Drugs stands first as well as another piece of the authoritarianism ehancement. Nailing people into poverty creates violent reaction. Crime and poverty are joined at the hip. Educational failure and poverty are joined at the hip.

    Carla you should be wary of bringing Jefferson into a collective right argument, he won't fit despite his anti-standing army stance. He was aggressively individual right including statements that would be a bit too much to bring into a measured discussion.

  • Chuck Butcher (unverified)
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    Carla, the Constitution as a whole is either the creation of governmental units or limits on those, it is extremely chary of granting powers. Roe V Wade was an expansion of limits on government using essentially the idea of privacy. What you are proposing to play in the case of he 2nd is an expansion of governemental powers into a specifically stated limit. There is a huge difference. This stands with Habeas and the 4th as directly stated limits.

    Sal is rather full of stuff as usual, the SC has refused to hear cases. The SC has not wanted to rule on this, for political and social reasons. (they also fell all over themselves to narrow this) Sal will nearly lose his mind on this issue, an issue about a thing but how much of that heat ever gets into issue of the reasons for criminal use of firearms? You won't find Sal getting all het up about plutocracy and the institutionalization of poverty. You won't find Sal getting crazy about the crushing of out-of-poverty job wages.

    There are direct contributions to firearm violence by governmental policy, the War on Drugs stands first as well as another piece of the authoritarianism ehancement. Nailing people into poverty creates violent reaction. Crime and poverty are joined at the hip. Educational failure and poverty are joined at the hip.

    Carla you should be wary of bringing Jefferson into a collective right argument, he won't fit despite his anti-standing army stance. He was aggressively individual right including statements that would be a bit too much to bring into a measured discussion.

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    Chuck, gun rights/gun control isn't a very big issue for me, a simple google search will reveal that -- although I must confess to deriving some pleasure from punching a few holes in your a-historical NRA-driven regurgitations and rantings about guns.

    As for my interest in addressing economic fairness and poverty ...

    I'll let my interest in economic fairness, and my efforts to provide a living wage for the 40 or so people my company has employed in the last year speak for themselves.

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    Carla, the Constitution as a whole is either the creation of governmental units or limits on those, it is extremely chary of granting powers. Roe V Wade was an expansion of limits on government using essentially the idea of privacy. What you are proposing to play in the case of he 2nd is an expansion of governemental powers into a specifically stated limit. There is a huge difference. This stands with Habeas and the 4th as directly stated limits.

    Chuck--I understand the premise of Roe under privacy. I'm basing my opinion here on what I've read from a number of legal experts on Roe: specifically from What Roe v Wade Should Have Said

    There's also a compelling piece written by Justice Ginsburg on Roe and the way it shook out and why. The best link I've found is at Wikipedia, here.

    In terms of this particular 2nd amend case, its apparent to me that the SCOTUS disregarded the intent of the founders..which I think is an important piece of interpreting Constitutional law. Justice Stevens dissent is particularly sharp--and I think its reasonable because of the lack of attention by those on the affirmative side who seem to have abandoned intent in this case.

    And Chuck, I'm not using Jefferson to argue collective rights per se. I'm saying that Jefferson's views on guns and gun rights are heavily rooted in the idea that the U.S. shouldn't have a standing army--ever. Once we the U.S. abandoned that policy, the milita foundation for the 2nd weakens substantially. Given Jefferson's propensity for evolving thought (agrarian to industrialization of the U.S., manifest destiny, etc), its reasonable that Jefferson would have also made such an evolution on the standing army argument. Personally, I think its inappropriate to quote Jefferson on gun rights without that context in mind--which is why I brought it up.

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    As to the inversion of "the usual suspects" roles as to originalist and evolving standards point that Steve M. raises, http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062603655.htmlE. J. Dionne makes this case at some length in an interesting way. If Steve and Dionne are right, that's a good thing insofar as this case may be used to argue against specious forms of originalism that have driven the right-wing ideological agenda for 40 years.

    In addition to what Chuck B. has said about the Constitution restraining government, it and the Bill more specifically tend to restrain the Federal government vis a vis both the several states, and individuals. I think it likely that "a free state" was meant to refer both to the national standing army argument, and to individual states' standing toward a federal usurpation. Likewise it seems to be both a collective and an individual right, in exactly the sense that "the people" (whose right is being protected) exists simultaneously as a collectivity, and as a collectivity of individuals. Also, notably, in the liberal political theory of the day, "the people" are anterior to states -- it is individuals constituting themselves as a people who establish legitimate states, as the Preamble puts it in the very first sentence of the Constitution. Likewise the idea from the Declaration of Independence that "government derives its just powers from the consent of the governed." Further, it seems likely that the Ninth amendment, saying that the fact that a right is not specifically enumerated is not to be held to say it doesn't exist (in effect a constitutionally entrenched rule of construction) seems to tilt any ambiguity in the direction of an individual plus collective right. Further still, it seems that the Fourteenth Amendment, with strengthens the rights of individuals in relation to the several states, probably also tilts toward an individual right. (Specious authoritarian originalism tends to ignore both the Ninth and later amendments, most notably the Fourteenth.)

    Terry, the amendments are part of the Constitution, which does not predate them, but includes them equally to other provisions, and sometimes sets aside older provisions in favor of them. All of the amendments are part of the Constitution, including the Bill of Rights, and also all the rest. They change prior provisions or direct interpretations in particular ways, as a matter of deliberate revision. The original Constitution has no superior status to the amendments; they make the whole Constitution of which they are a part different from what it had been.

    Chuck's eloquent assertion of the unique power of firearms is exactly the reason why anti-gun-control arguments along the lines of "people will just use knives or clubs or rocks" make little sense.

    As for the regulation of militias, I think the militia movement of the 1990s exemplifies poorly regulated ones, and also gives me considerable pause about the application in practice of much of the ideology about standing up to tyranny, which was certainly deployed by the ultra-right, often explicitly racialist and anti-semitic, sometimes overtly theocratic and certainly patriarchal, authoritarian, anti-women's rights militias of the period. Because frankly I thought they were ultimately bullies and thugs who aimed to intimidate the vast majority who disagreed with them.

    When I grew up in Massachusetts, April 19 was a state holiday called Patriots' Day, commemorating the Battle of Lexington and Concord. In 1993, April 19 was also the day that the BATF conducted the raid on the Branch Davidian compound in Waco, Texas in which 80 people were killed by fire. The convergence of these dates led some in the emerging militia movement to try to make April 19 "Militia Day" (for some in the racist parts of the militia movement, the proximity of Hitler's birthday, April 20, has also had an attraction). In the Portland area there was a plan circulating on locally-oriented usenet lists to make April 19, 1995 "Militia Day" by having pro-gun-rights advocates march openly armed in downtown Portland. Someone named Tom Cox was active in circulating the call. I am not sure if it is the same libertarian Thomas Cox who posted earlier in this thread. There was no indication that I can remember of a link to an organized "militia" group & it was explictly billed as a gun rights event and oriented toward Lexington & Concord rather than Waco as far as I can recall.

    What I remember most was debates in which slogans like "an armed society is a polite society" were being floated by proponents, and thinking, "no, an intimidated society."

    That Tom Cox called off the event as news of the bombing of the Murrah Federal Building in Oklahoma City (ca. 7 a.m. Portland time) came in.

    Some of T. A. Barnhart's remarks resonate with those concerns.

    In present circumstances, unity in trying to reverse overt erosion of constitutional civil rights and liberties by the executive branch of the federal government seems important. I personally feel more threatened by those actions than whatever remains of the "militia movement."

    However, I don't think we should romanticize the idea of armed popular resistance to overweaning government, either. In recent practical application, that idea has been violently reactionary. And the kind of militias that were forming in the 1990s seemed to have more prospect of evolving into the sorts of death squads or right-wing paramilitaries or private armies that we see at work in many civil conflict situations around the world than anything upholding real civil liberties.

  • anonymous (unverified)
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    Not only "conservatives" want to own guns. You really should get out of the city more.

  • Kurt Chapman (unverified)
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    Steve--while I strongly agree with the ideas behind Roe and am a staunch pro-choice woman, Roe is generally thought by many legal experts to be very weak reasoning and bad precedent. Its my opinion that Roe will eventually be overturned and that the battle will be won at the state level.

    Carla has stated it far better than I did. This decision seems to leap off the pages of The Bill of Rights in an easily understood manner. Roe, unfortunately is poorly written and relies on more than one logical shift legally in order to come to its conclusion. Roe is being discussed over 40 years later whereas this decision will fade because it makes legal sense.

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    Well, Kurt, I suppose we're going to have to agree to disagree on this one. I see nothing wrong with Roe extrapolating the fourth Amendment of the Bill of Rights into applying the same principal to our own physical bodies.

    While it is true, given the state of medicine in the 1700s, that our Founding Fathers never dreamed that such an issue would have to be resolved, it seems hardly a stretch at all, much less "poorly reasoned" as social conservatives like to posit. What is, after all, a more intimate possession to be protected from unreasonable search and siezure by the government than our own flesh and blood?

    Without the protection of Roe, there is no legal foundation to protect against a host of legislative violations - all of course passed in the name of morality - from interfering in end of life care ala Terri Schiavo, to blue-law enforced (or conversely, outlawed) circumcision, to forced tissue or blood donations. True Democracy is not merely following the will of the majority, but also respect for the minority in the placement of limits on what the majority can do.

  • randy (unverified)
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    Roe is a really stupid decision but I'm not sure how the discussion got over to it. In Roe the Court invented a right, Heller is about something that is actually written in the Constitution. Well to be more precise, Roe leveraged a right that the Court invented in Griswald but since most people on this board don't have legal backgrounds we usually skip that part of the discussion.

    When I was in law school we learned that most of the "big" cases were all rather stupidly decided. If you sit down and read thru Roe, Brown, etc you'll quickly see that most of those big cases don't make much sense. They were political decisions dressed up as judicial decisions but as decisions they stink. Brown has a bunch of social science babble in it that is nothing more than junk science. Roe has a stem winder about quickening going back to Biblical times. Roe also has some silly formula that the Court pulled out of their ass on trimesters. The whole thing was invented out of thin air and the Court has looked silly every since. That is why the justices hate Roe, they know it makes them look like morons for having handed that one down. Heller at least has some actual words in the Consitution to work with. There is a disagreement between the majority and the minority on how to deal with the very ackward phrasing of the Consitution, but now we have a decision. Next year we might have a different decision.

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