It’s time to pay our last respects to some of the most often repeated ideas of the later twentieth century, now killed off by the Supreme Court’s Heller decision. I’ve been arguing against these ideas for more than forty years and now it’s time to bid them farewell.
RIP “Collective Right”
This has been the cornerstone argument of gun bigots for decades. Advocates of this idea focused on one word – “Militia” to the obsessive exclusion of everything else, ignoring the historical and political contexts of the Second Amendment, including its presence in the Bill of Rights.
Even gun control advocates now admit what a fraud this idea was:
“The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.
I've never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written - and give it such pride of place, the No. 2 position, right behind such bedrock freedoms as speech and religion.”
Eugene Robinson, Washington Post Writers Group
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/06/30/EDUN11FONE.DTL
Heller:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home”. Page 1
Enough said.
RIP “US v Miller” established collective right.
In 1939 the Supreme Court heard a case of a Mr. Miller, who had been convicted of possessing a sawed off shotgun in violation of the National Firearms Act.
His conviction was upheld by the Supreme Court.
Many antigun advocates have bemoaned the shattering of “seventy years of precedent” by the Heller decision:
“…with this decision, seventy years of precedent has gone out the window.”
Senator Dianne Feinstein
http://blog.thehill.com/2008/06/26/ruling-destroys-seventy-years-of-precedent-sen-dianne-feinstein/
“In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a ‘militia.’”
New York Times
http://www.nytimes.com/2008/06/27/opinion/27fri1.html
The Heller case did NOT contradict, ignore or reverse 70 years of precedent. What it did do was decisively establish that the collective right “precedent” set by Miller NEVER EXISTED:
Heller:
“None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.” Page 2.
"It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment." Page 50.
So the “Seventy years of precedent” was merely the result of wishful thinking, a liberal’s fantasy, the all too common product of outcome driven logic.
RIP “The Second Amendment only applies to muzzleloading muskets.”
I have to confess that I’m going to miss this now dead idea, if only because it was so easy to refute. If the Second Amendment only applies to the technology available in the late 1700s, then freedom of speech only applies to standing on a soapbox or leaflets printed on a hand-cranked press, not to views expressed via radio, television or the internet.
Heller:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”. Page 8.
All Supreme Court Heller quotes from:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf
RIP “Collective Right”
This has been the cornerstone argument of gun bigots for decades. Advocates of this idea focused on one word – “Militia” to the obsessive exclusion of everything else, ignoring the historical and political contexts of the Second Amendment, including its presence in the Bill of Rights.
Even gun control advocates now admit what a fraud this idea was:
“The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.
I've never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written - and give it such pride of place, the No. 2 position, right behind such bedrock freedoms as speech and religion.”
Eugene Robinson, Washington Post Writers Group
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/06/30/EDUN11FONE.DTL
Heller:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home”. Page 1
Enough said.
RIP “US v Miller” established collective right.
In 1939 the Supreme Court heard a case of a Mr. Miller, who had been convicted of possessing a sawed off shotgun in violation of the National Firearms Act.
His conviction was upheld by the Supreme Court.
Many antigun advocates have bemoaned the shattering of “seventy years of precedent” by the Heller decision:
“…with this decision, seventy years of precedent has gone out the window.”
Senator Dianne Feinstein
http://blog.thehill.com/2008/06/26/ruling-destroys-seventy-years-of-precedent-sen-dianne-feinstein/
“In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a ‘militia.’”
New York Times
http://www.nytimes.com/2008/06/27/opinion/27fri1.html
The Heller case did NOT contradict, ignore or reverse 70 years of precedent. What it did do was decisively establish that the collective right “precedent” set by Miller NEVER EXISTED:
Heller:
“None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.” Page 2.
"It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment." Page 50.
So the “Seventy years of precedent” was merely the result of wishful thinking, a liberal’s fantasy, the all too common product of outcome driven logic.
RIP “The Second Amendment only applies to muzzleloading muskets.”
I have to confess that I’m going to miss this now dead idea, if only because it was so easy to refute. If the Second Amendment only applies to the technology available in the late 1700s, then freedom of speech only applies to standing on a soapbox or leaflets printed on a hand-cranked press, not to views expressed via radio, television or the internet.
Heller:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”. Page 8.
All Supreme Court Heller quotes from:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf
:banghead: and self defense has nothing to do with it
:banghead:
