Trump Administration Files Brief Urging SCOTUS to Overturn NYC Gun Law

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This is not political theater this is not a stunt. There are real people getting jammed up on their web of laws that are intended to essentially ban all firearms.

You better pay attention because this is not a matter of states rights. They frame it that way but intentionally go too far. Bloomberg and other financial elites have a vision of a disarmed America and NYC is their stronghold. You want to know what they have in store for you? Look no further than NYC.

Don’t think it can happen? Well they do and are working hard for it. Do your own research but there is millions being poured into the anti gun lawmakers, the media, and anti gun organizations.
 
There are real people getting jammed up on their web of laws that are intended to essentially ban all firearms.

You better pay attention because this is not a matter of states rights. They frame it that way but intentionally go too far.

This right here.


I don't understand trumpeting states rights to severly cobble the 2A..... but not for the other BORs.
 
The point is that politics is the art of managing various levels of hypocrisy. I am not defending NYC's laws or suggesting they should not be challenged in court. I am pointing out that in the realm of competing politics, Federalism (which "philosophically" would entail respect for municipal rights) always falls before the power and ambition of the Federal power.

No, municipal rights are not federalism and have never been treated as such because these are creatures of the state governments, not independent cities. Sovereignty belongs to the states, the U.S., and Native American tribes on reservations in the U.S.

I have no idea what you actually believe federalism is but since the Founding, there are certain things that states cannot do. One of which predates the Constitution was hindering the right to travel and for that the States agreed to give up part of their sovereign rights to pass laws to do such in the Articles of Confederation. That was then incorporated into the new Constitution using the same language of privileges and immunities. Because of SCOTUS decisions in Dred Scott as well as Barron v. Baltimore, the Reconstruction Congress made damn sure that the privileges and immunities in the 14th clause is expressly a limitation on the states and that the federal government through Congressional lawmaking can enforce it.

Even after the relative evisceration of this clause in the Slaughterhouse Cases, this decision still had the court declaring that the right to travel was fundamental and Congress could protect it. Thus, it is not hypocritical to have Congress and the executive enforce this as IT IS THE CONSTITUTION and due to the Supremacy Clause, the actions of the federal government are supreme in their given enumerated powers over the states. Enforcing the privileges and immunities clause of the 14th is an enumerated power of the Federal government as per the 14th (let alone the others) and therefore any state or locality action against such is unconstitutional by definition.

Even under the old dual federalism doctrine which died during the New Deal, the federal government for example via the ICC had the right to require desegregated railway cars in railroads that crossed state lines. Likewise, the states segregation laws did not apply to federal military bases nor to federal property in general.
 
That doesn't negate the right of the states to set gun laws. Scalia said precisely that in Heller.
Please provide a citation.

As long as that law doesn't violate the 2nd Amendment, it's valid. And before the Heller decision, more than a century of jurisprudence held that the 2nd only applied to the federal government and the constructionist idea that the right to keep and bear arms was of a military intent and tied to militia service.
I doubt it, but it doesn't matter, we're living post-Heller and McDonald now.
 
Please provide a citation.


I doubt it, but it doesn't matter, we're living post-Heller and McDonald now.

The O/P probably does not recognize what obiter dicta is but it is extraneous reasoning not needed to resolve the case. The D.C. and MacDonald cases dealt with situations where the regulations were so severe in restricting firearm ownership and use that the 2A was a dead letter in those jurisdictions. Under any standard of review (which is not specified in the decision nor in MacDonald), the laws in these jurisdictions would fail the rational basis test as you cannot regulate a constitutional right for individuals out of existence. Implicitly Justice Stevens recognizes this and so his argument is that the 2A is only a collective right for states to have militias and he distorts history to make it so.

Scalia's argument, buttressed by excellent history of firearms law btw, is primarily a textual one.

In every instance where the word "People" is used in conjunction with a right, it is an individual right not a collective one. For yourself, do a control f with the text of the Constitution and Bill of Rights if you want to see. When the Constitution refers to States and their powers and prohibitions, it says "states"
For example,
Article I, Sec. 2, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. . . "
The 1st Amendment, ". . . the right of the people peaceably to assemble. . ."
The 2nd 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."
4th Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . ."
9th Amendment , "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
10th Amendment, ". . .are reserved to the States respectively, or to the people."
17th Amendment, ". . The Senate of the United States shall be composed of two Senators from each State, elected by the people . . .[ vacancies are filled] . . until the people fill the vacancies by election as the legislature may direct."

I left out the famous example of We the People of the United States in the preamble which would read quite differently if it said, "We the States of the United States, etc."

Consistently when referring to the powers of the states, the Constitution and amendments say "states" not "people". So you cannot consistently read the constitution as using states and people as synonyms as it will not literally make sense. That is Scalia's primary argument in interpretation. Thus, it is a right that is given to individuals who might use it for collective action such as a militia or to counteract a tyrant but the right itself is understood as individual.

Part of the issue confusing the matter is that we seldom talk of negative versus positive rights. Opponents of the 2A consistently wish to treat firearm ownership as a privilege (a positive right is granted by government via legislation or court action) for a collective societal purpose which under common law can be overridden by standard legislation. A negative right pre-exists before government and as Locke provided, people enter into governing compacts to protect these rights. Note that all the government has to do is not act to infringe your freedom of speech or right to own a firearm via actions. It does not require government buy you a firearm but simply leave you alone to chose to do so. A positive right, such as Social Security, comes from legislation and thus its terms can be altered by ordinary legislation (as the Supreme Court has repeatedly ruled.)

However, given the prior history of the right under the English Bill of Rights, the state constitutions that guaranteed the right prior to the U.S. Constitution, and even the historical situation indicate that an individual right had to exist.

Technically, absent international law, states as such do not have "rights" within the Constitution, instead, they have their residual powers remaining after they joined the United States and restrictions on powers that were granted to the new United States by the conventions ratifying the original document (and agreed upon by new states as a requirement for entry/reentry to the Union). Once, the Bill of Rights was applied definitively to the states via the Reconstruction Amendments, it is patently a restriction on the powers of the states so that individuals within those states can call to the federal government to negate state actions in violation of the U.S. Constitution and Bill of Rights.

Those proposing "states" rights are echoing John Calhoun in arguing that the U.S. Constitution was a compact of states similar to that of the Article of Confederation where each state reserved its ability to abrogate the compact (and any duties under it.) Lincoln argued that the preamble of the Constitution begins with We the People of the United States not how the Articles listed each state by name and repeatedly dealt with the state itself. Second, the nature of the ratification was through popular conventions of people elected for that purpose in each state, not by state legislative ratification. It is not a treaty of the states and cannot be for the federal government to be able to interact with individuals without the mediation of the state that they live in. In other words, that dog won't hunt. It is not a treaty of the states.


Here is what O/P is referring to in Scalia's majority opinion in Section III which is dicta to the case:

"III

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[Footnote 26]

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."


BTW, Cruikshank did not deal with whether states had the powers to create militias but simply denied that a white mob depriving African Americans of their firearms violated the Civil Rights Act of 1871. The Court held that the right to bear arms was not a protected civil right. The whites were appealing their federal convictions for deprivation of civil rights by disarming African Americans during a race riot.

Miller did not deal with the power of states to have militias either as it dealt with an ex parte appeal of a district judge's ruling that the NFA was unconstitutional. Miller absconded but his sawed off shotgun more or less became the appellee. Justice Sutherland held that because the firearm was not in common military use that the U.S. government could restrict ownership via the congressional taxing clause power (note not banning it but making such expensive and difficult to obtain.) So that supposed century of constitutional precedent does not deal with militias at all as the interpretation of the 2A was first used to deprive African Americans of their right to own firearms and then a right of a bootlegger to have a sawed of shotgun without paying the $200 NFA tax and registration. Cruikshank was an odious decision that also felt it was fine to deprive African Americans of their rights to peaceably assemble, vote, etc.

This is what Chief Justice Waite had to say about the 2nd in passing, "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. "

No words about being a collective right anywhere nor do we see a discussion of the militia nature of the 2A. Waite's opinion is patently absurd in that the drafters of the 13th, 14th, and 15th Amendments overruled Barron v. Baltimore and granted Congress the power to enforce each of these amendments. He is quoting dead precedent in doing so. The Court acted equally lawlessly in relegating the privileges and immunities clause, the equal protection clause, and the Civil Rights case to grant African Americans full citizenship after the Civil War. Generally, the court's record in protecting rights other than of railroads during the 1870's to 1890's is abysmal.

 
I’m sorry but I can not even humor any discussion regarding wether the 2A intends for private citizens to own firearms. It’s written very plainly and anyone who says otherwise reminds me of a Pig from the book Animal Farm.
 
I’m sorry but I can not even humor any discussion regarding whether the 2A intends for private citizens to own firearms.

Yes, but what firearms? And under what conditions? If we are talking only about an individual right (for self defense and hunting), then the right might logically be limited to revolvers, shotguns, and bolt-action rifles. In order to have a broader right, you have to bring the militia aspect into this. I contend that the militia language in the 2A is crucial, and that the militia = the people.
 
I sure hope it doesn’t. I want the Supreme Court to act on and decide cases based entirely on merit and Constitutionality. Not for the desires, wishes, or urges of ANY administration.


That is the way it us supposed to work. But unfortunately it doesnt in the real world.
 
Yes, but what firearms? And under what conditions? If we are talking only about an individual right (for self defense and hunting), then the right might logically be limited to revolvers, shotguns, and bolt-action rifles. In order to have a broader right, you have to bring the militia aspect into this. I contend that the militia language in the 2A is crucial, and that the militia = the people.


Any guns, in any public place, with the only exceptions being children and felons.

And if you are too dangerous to have a gun in public you should still be in prison.
 
That is the way it us supposed to work. But unfortunately it doesnt in the real world.

If it were the case, why do we get split decisions? One justice's constitutionality is another's unconstitutionality - based on their personal beliefs. This is especially true on social issues. The law was constructed by people and is not subject to mathematical proofs.
 
No dichotomy there. According to contemporary commentary at the time the Amendment was adopted, the people are the militia. If the Amendment is seen in this light, the general public has a right to the standard weaponry (machine guns, etc.) that the armed forces use. The idea of militia universality, grafted on to the Miller case (1939), gives us that result. This should be the main thrust of 2nd Amendment interpretation, not the aberration that is Heller. Heller was just a political compromise among the Justices, and not a statement of originalist principle.
Y sentiments exactly. Reading 2a this way should render gca34 and gca 68 moot. Unconstitutiional.

This is the way I see it.

Some folks want States to be able to further restrict/eliminate abortions. Some States would like to do the same with firearms, despite their being a 2nd amendment.

I realized long ago that I am a libertarian vs an R or D though.

I don't believe our founding fathers would have ever included abortion as legal as a right.
 
Any guns, in any public place, with the only exceptions being children and felons.
OK, but a simple individual right doesn't get you that. (As I said, all it gets you are revolvers, shotguns, and bolt-action rifles.) To get to a broader right, like the one you describe, you have to bring in the underlying philosophy of the 2nd Amendment, which is that the general citizenry is to be as well armed as the standing army. We're a long way from that in the current 2nd Amendment jurisprudence. One might even say that the Heller case was its very antithesis.
 
OK, I understand how abortion rights debates and state laws might seem a parallel to gun rights. However, we do not discuss the pros and cons of abortion on THR. That leads to a flame war which we don't want.

Let that branch of the discussion be snipped. Meaning - NO pro or con abortion discussions.
 
If it were the case, why do we get split decisions? One justice's constitutionality is another's unconstitutionality - based on their personal beliefs. This is especially true on social issues. The law was constructed by people and is not subject to mathematical proofs.

We've always had Supreme Court Justices of varying ability. Beyond ability, we've had our share of Supreme Court Justices whose personal and political ideas weren't in sympathy with the original intent of the Constitution.

Thurgood Marshall, by all accounts I've read was a decent man, but he was famous for his remark, "Do what's right. If that's not the law, let the law catch up." Which sounds wonderful until you step back and ask yourself how that's different from a benevolent dictatorship.

I don't want a Supreme Court Justice ruling in favor of his conscience. I want him following the letter of the Constitution to the best of his ability.

The core of the Constitution is a mistrust of government and a deep trust in the common man.
 
That is where 1791, 1792 militia acts prove founding fathers intent.
Partially. But I contend that the "constitutional militia" or the "2nd Amendment militia" is more universal than even the early Militia Acts. The "constitutional militia" was everybody -- the maximum manpower pool, if you will -- and the Militia Acts selected a segment of that to act as the nation's standby military force. If more were needed, Congress could go back to the constitutional militia and designate more for service (such as by raising the age limit, for example).
 
Thurgood Marshall, by all accounts I've read was a decent man, but he was famous for his remark, "Do what's right. If that's not the law, let the law catch up." Which sounds wonderful until you step back and ask yourself how that's different from a benevolent dictatorship.

President Trump on Wednesday voiced support for confiscating guns from certain individuals deemed to be dangerous, even if it violates due process rights.

“I like taking the guns early, like in this crazy man’s case that just took place in Florida ... to go to court would have taken a long time,” Trump said at a meeting with lawmakers on school safety and gun violence.

“Take the guns first, go through due process second,” Trump said.

Trump was responding to comments from Vice President Pence that families and local law enforcement should have more tools to report potentially dangerous individuals with weapons.

Moral actions are complex. One of the theories of moral psychology postulates that the highest stage of moral development is when you follow the tenets of your own conscience to help and not humanity, even if it means disobeying written laws or religious writings.

The defense against tyranny argument suggests that at times we would fight against a written law for a moral just cause. The letter of the Constitution may seem crystal clear to one and someone else have a different view. That was certainly true in the build up to the Civil War and post war Jim Crow actions. It is still the same today.
 
Moral actions are complex. One of the theories of moral psychology postulates that the highest stage of moral development is when you follow the tenets of your own conscience to help and not humanity, even if it means disobeying written laws or religious writings.

The defense against tyranny argument suggests that at times we would fight against a written law for a moral just cause. The letter of the Constitution may seem crystal clear to one and someone else have a different view. That was certainly true in the build up to the Civil War and post war Jim Crow actions. It is still the same today.

When a person is free to follow their personal moral judgments, they're in a position of absolute power. Suppose I decided the world would be better off without a given individual? Even if you personally agreed with that judgment of that individual, you'd balk at my willingness to take him out, recognizing that giving me that power would be more dangerous than allowing someone we both deemed a criminal to live in the absence of real proof of any kind of crime that hadn't stood the test of our court system.

Sometimes a moral person has to disobey law. When he does, he has to be ready to pay the price. Any individual's sense of morality is always a fallible guide. That it's the only thing we have aside from law outside ourselves just speaks to the precarious moral dilemma of human existence. Every law I obey isn't because I'm happy with it. Sometimes compliance is no more than a recognition of the power and the reach of the state.

The Constitution and the court systems supporting it were set up in the full knowledge that the edges and the gray areas of the law would be forever in dispute. Some of the problems people have today with the Constitution arise from a fundamental difference in the way so many people view the world today. The prevailing thought among the Framers came from a combination of Christianity and Neo-Platonism. The belief was that an absolute truth, an absolute right, and an absolute justice existed. If it were impossible for any man to have a clear and complete picture of these absolutes, they nevertheless existed. The words of the Constitution were the Framers best attempt to codify these innate rights.

Much modern thought is devoid of these absolutes. Many people believe the interpretation of the Constitution to be the exclusive prerogative of the government. There's a vague idea that an individual ought to have some rights, or more properly privileges, which decent people in government should convey. The idea of innate rights seems alien to so much modern thought, or that the reach of the government should somehow be less than what it sees its interest.

The framers believed in untouchable, inalienable rights. Our typical modern legislator too often sees these rights as an unnecessary restriction on day-to-day government business. He has no real concept that those restrictions were exactly what the Constitution was designed to enforce.
 
The framers believed in untouchable, inalienable rights

Some of them didn't as they allowed for slavery. The way they dealt with it is to declare that Africans were not human and thus had no rights. Rights are not physical laws or mathematical principles. They are constructs of a society. It borders on a religious argument to think they exist outside of human creation. If that appeals to you, it is your belief system.

However the existence of religious forces outside the physical world is not a topic for our discussion on THR.

It's not like this concepts haven't been debate for millennia with no resolution except in the minds of subsets of various true believers.
 
BTW, I recommend folks go to that page and simply look at the number of amici briefs filed by states, non-profits, and so on.
I agree, worth reading, even though I have been reading for hours and have more to go....
 
Some of them didn't as they allowed for slavery. The way they dealt with it is to declare that Africans were not human and thus had no rights. Rights are not physical laws or mathematical principles. They are constructs of a society. It borders on a religious argument to think they exist outside of human creation. If that appeals to you, it is your belief system.

However the existence of religious forces outside the physical world is not a topic for our discussion on THR.

It's not like this concepts haven't been debate for millennia with no resolution except in the minds of subsets of various true believers.

I think it is related to the gun issue to understand that the Framers by no means universally accepted Lockean concepts of innate universal rights. It was a hotly debated issue in its day. Most of the Federalists thought the idea was crazy. They believed the people had the rights they gave them. John Adams had a Congressman thrown in jail for referring to him as "your rotundity." He was a bit portly.

Neither is the slavery question unrelated to today's Second Amendment issues because so many modern writers are prepared to say that anyone who could have accepted the economic institution of slavery had thinking so tainted that everything else they did and thought was so tarred with the same brush that we ought in good conscience to discard everything they said, did, or thought.

The problems seems to be a willful refusal to understand the thinking of the time. The concept of slavery was deeply embedded in the religious, scientific, and economic thought. The strongest advocates for the abolition of the slave trade didn't believe black people were equally mentally capable. Nothing may have done more to influence the eventual abolition of the slave trade in East Africa than Sir Samuel Baker's impassioned speeches and pleas to the Geographic Society. Yet, in one of his books he likens a black child to a monkey, showing promise, but the eventual inability to learn. He believed this as a matter of scientific principle. He was wrong, as we know today. In the early days of the 19th century, the waters were much more muddied. A good person wouldn't necessarily look at the evidence available to him and come up with the conclusions we would today.

That the best people, that the best minds of the day, were wrong on an important human issue doesn't in itself negate their contributions to the advancement of humanity in other areas.

We've had our share of odious judges on the Supreme Court, who have made odious decisions--witness Dred Scott and the decision a black man could not have standing before the court because he was merely property--but our errors don't negate our triumphs. And the Bill of Rights is one of the great triumphs of the American people.
 
Political stunt.

There will be loads of Amicus briefs. The President 's is more noticeable than some others.

But an allegedly Federalist administration calling for judicial action to overturn laws passed, however ignorantly, by the elected representatives of NYC residents is a stretch philosophically.

It's all messaging, which is fine.
So, if NYC passed a law authorizing chattel slavery, the Federal government should stand aside?
 
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