Time for SCOTUS to step into the fray

[AlexanderA]

The 2A militia is clearly "The People" as mentioned in the operative clause. It says the right of the people shall not be infringed, not the right of the militia.

That's correct. The "people" in the operative clause is the same as the "militia" in the prefatory clause. However, the prefatory clause is still important because it sets out the purpose for which the people are to be armed, which is the protection of themselves and the state in a military context. In other words, there are two distinct considerations here: one is the people to whom the right applies (everybody) and the other is the scope of the right (in terms of the weapons to which it applies). Justice Scalia didn't want to touch this with the proverbial ten foot pole, because it would validate his worst nightmare, which was that ordinary people would have the right to own machine guns. In fact he minimized the scope of the Amendment to common handguns in the home.

The militia clause is going to become of paramount importance in the coming cases testing the constitutionality of "assault weapon" bans. If the Court continues to follow Scalia's reasoning that the militia clause is a nullity, then AWB's are probably going to stand. Because of not paying attention to the militia clause, we can say goodbye to our AR-15's. We'd be on firmer ground, in this respect, if the last word from the Supreme Court was the 1939 Miller case rather than the 2008 Heller case. All that the Heller case stands for, really, is that the authorities cannot flat-out ban handguns. (They can still regulate them out the kazoo, as we see in the District of Columbia today.)

 

[Tommygunn]

AlexanderA, while I appreciate your logic and the reasoning behind your belief in the importance of the 2A's militia clause (and the following is NOT intended to contradict your argument) keep in mind also that the amendment clearly states "the right OF THE PEOPLE to keep and bear arms shall not be INFRINGED."
The word "infringe" means (1.) "to intrude into," or (2.) "to diminish." An assault weapon ban qualifies on both those definitions. In fact, there are a plethora of laws already on the books already that violate the 2A. IMHO we must thus concentrate on arguing that past violations do not mean we should accept present or future violations.
Eg.; "Is it okay to rob a bank today because it was robbed two days ago, and three weeks ago, and four years ago?"

The first clause (militia) of the 2A is , IMHO, an "exemplar." It is a central but NOT EXCLUSIVE reason for the second half of the amendment.

The idea of AR-15s being protected as "militia" weapons isn't invalid, but also, isn't really necessary. Also, keep in mind that very many types of weapons have had or have military applications as well.

 

[AlexanderA]

As much as I would like to rely on the literal language of the 2nd Amendment, that is not where the jurisprudence stands today. Arguments before the Supreme Court in future gun cases will not be made in a vacuum, but only in reference to previous decisions. That is why examining the nuances of the Heller case, and the weaknesses and strengths of Scalia's analysis, is so important.

 

[GEM]

I've always said that the the decision will be made on the personal views of the Justices on firearms rights. Then they parse language and look for precedent. Some lawyer types don't like this as they like to view themselves as above personal impulses and the political fray.

Scalia's language, 'common usage', the view of all of them being Ivy elites will be interpreted through whether they truly understand firearms usage and whether they think the common schmuck like us should have a specific type of weapon. The antigun lower court decisions quote Heller and make a big point of the self-defense rationales for banning this or that.

They also get so involved in their own rhetoric and terminology (to basically show their arcane knowledge) that they forgo clear decisions and produce ambiguous prose that has tremendous loopholes, so to speak, that can support gun control - even when the decision seems to be a positive one.

I am sad to say that those who think that Gorsuch and Kavanaugh will appear leading the SCOTUS down the steps of the Court carrying the Golden Tablets of RKBA Truth, that will void state bans, negative federal restrictions on NRA, SBRs, etc., ease carry and the like - are mistaken. The NRA says this for funding raising. Donald claims this to garner pro-gun support. I don't think it will happen.

Congress is a lost cause. They have no interest in legislative solutions as a priority. With the House being lost to the supposed pro-gun party, forget it. They will say they will defend the RKBA to get your bucks and do nothing to roll back state laws now going into effect. A real solution to the attacks on the RKBA would have negative business and vote gathering effects on the pro-gun legislators and organizations. Some cause oriented organizations would be happy. Some pro-gun but business oriented organizations would suffer with a real win.

I've said this before and it makes some Scalia and organizational loyalists unhappy.

 

[Tommygunn]

As much as I would like to rely on the literal language of the 2nd Amendment, that is not where the jurisprudence stands today. Arguments before the Supreme Court in future gun cases will not be made in a vacuum, but only in reference to previous decisions. That is why examining the nuances of the Heller case, and the weaknesses and strengths of Scalia's analysis, is so important.

I would never deny that previous decisions affect today's court decions.
I am simply profering my opinion, based on my understanding of the plain meaning of words, phrases and sentences, tempered by what I have read about this nation's founders' intents.

I also think many courts are persuaded by public and social sentiments.

It doesn't make their decisions right, or mean they are ACTUALLY protecting constitutional rights ....but, yes, it does mean we get to live with the results, good or bad, regardless of our opinions.

Someone once quiped; "let justice prevail, though the sky may fall." Yeeeeup....

 

[readyeddy]

I see Heller in a more positive light.

As has been pointed out by others here, Scalia needed the votes so he had to include language to assuage fears by allowing for reasonable restrictions.

The fundamental question of individual vs. collective right was not yet decided. So if it were ever determined by the SC that the 2A only concerned a collective right for a state to have an organized national guard, then wouldn't individuals be susceptible to practically any type of gun restriction or prohibition? There would be no need for anti-gunners to repeal the 2A.

The SC could have simply denied cert for the Heller case, but that would also leave open the possibility of a future SC holding for a collective right.

When I read Heller, I think that Scalia wanted to confirm the individual right to hopefully prevent the disarming of Americans, but he could do only so much with what he had.

Of course rights can be eroded through so called reasonable restrictions, but at least we have the legal foundation that the 2A is an individual right and cannot be dismissed wholesale. In other words, Heller was a first step. Moving forward we need to find a way to win sufficient popular support, which will lead to political and judicial support. If we don't get our act together, then yes I can see us losing just about everything.

So no, I don't think we can expect much support from the SC or any other branch of government until we are able to gain more popular support.

 

[armoredman]

I like firearms. A lot. I own and operate them (safely and legally). I carry for defense and I train. But I’ve also had many years to mature, to educate myself and train, and learn moderation. And I can’t help but think that there’s something missing from the pro-2A argument that everyone should have easy access to everything (in its purest form). All rights have limits, for good reason. I think we can mostly agree on this site that an individual should not be allowed to possess certain weaponry that poses an unreasonable threat to the public, like grenades, without some extremely strict scrutiny. So we accept that there are lines and limits. Where they fall is the question, and to me, that’s not really a judicial question. It’s a legislative and economic one.

No, it is not true - how many grenade attacks were carried out by lawfully possessed grenades prior to the enactment of the GCA 68 addendum to NFA34? How many mortar attacks? Tank guns used in robberies? Straw man and wrong. I know people who possess fully functional ARMED tanks and armored vehicles - not ONE has committed a crime with them, and even if ONE did - it would not invalidate the argument, no more than one persons' misuse of an item should cause the entire country to suffer. Sorry, but I reject that argument - the 2A should encompass all arms suitable for personal use, regardless of type. This slippery slope is what brought us the AWB in 94. The next one will have no expiration period and confiscation without compensation.

 

[AlexanderA]

When I read Heller, I think that Scalia wanted to confirm the individual right to hopefully prevent the disarming of Americans, but he could do only so much with what he had.

Scalia could also have confirmed an individual right without negating the militia clause, by stressing the universal nature of the 18th century militia. Yes, the RKBA attaches to the militia, but we are all members of the militia. That would have been the elegant, "originalist" solution. Instead, we got a limited decision that protects only handguns in the home.

The basic problem was that Scalia was a Fudd. He didn't think civilians should have military weapons.That of course is the exact opposite of the original intent of the 2nd Amendment.

The fact that Heller is seen as a pro-gun decision gives an alibi to judges (including Supreme Court justices) going forward. They can go no farther than Heller and still tout themselves as being pro-2nd Amendment.

 

[JTHunter]

In light of Kavanaugh's siding WITH the lefties on the bench in this Planned Parenthood case, IS he going to be the conservative justice we were hoping for or just another "switch hitter"??

 

[AlexanderA]

Kavanaugh said flat out in his confirmation hearings that he didn't think machine guns should be legal. I can easily see him voting to uphold an AWB.

 

[GEM]

We really don't want to get into the merits of the Planned Parenthood case. That decision does show that people who expect 'conservative' purity (if that is a value) cannot truly predict decisions.

I do think, as said before, expecting SCOTUS to be the savior of the RKBA is probably not in the cards. It's a marketing point for some but don't count on it.

 

[readyeddy]

Scalia could also have confirmed an individual right without negating the militia clause, by stressing the universal nature of the 18th century militia. Yes, the RKBA attaches to the militia, but we are all members of the militia. That would have been the elegant, "originalist" solution. Instead, we got a limited decision that protects only handguns in the home.

The basic problem was that Scalia was a Fudd. He didn't think civilians should have military weapons.That of course is the exact opposite of the original intent of the 2nd Amendment.

The fact that Heller is seen as a pro-gun decision gives an alibi to judges (including Supreme Court justices) going forward. They can go no farther than Heller and still tout themselves as being pro-2nd Amendment.

Scalia wrote that the 2A militia is comprised of the unorganized citizenry which was the purpose of the operative clause, but he reads Miller to limit "ordinary military equipment" with "in common use", so as to allow the prohibition of military weapons that are not in common use by civilians. Of course, the argument is illogical where there are weapons that are not in common use because of existing laws that may be violative of the 2A's purpose to arm a citizen militia.

But Scalia acknowledges that a practical solution was required in order to avoid a "startling" reading of Miller. Scalia may or may not have believed that it was unacceptable to allow automatic weapons and grenades to be commonly available, but it was probably a certainty that he would not have obtained the votes for his majority if he had insisted on allowing all ordinary military equipment.

 

[AlexanderA]

But Scalia acknowledges that a practical solution was required in order to avoid a "startling" reading of Miller. Scalia may or may not have believed that it was unacceptable to allow automatic weapons and grenades to be commonly available, but it was probably a certainty that he would not have obtained the votes for his majority if he had insisted on allowing all ordinary military equipment.

Nevertheless we are stuck with Heller and we are probably not going to like the result when the time comes for an up-or-down SC vote on an AWB.

 

[GEM]

Scalia had to placate Kennedy according to Stevens. It might not be a good idea to get the Court to take an AWB, weapons limitation case.

 

[The Liberal]

I very strongly disagree with any interpretations of the 2A that attempt to justify personal ownership of explosives, crew-served weapons, etc.

 

[DeepSouth]

I very strongly disagree with any interpretations of the 2A that attempt to justify personal ownership of explosives, crew-served weapons, etc.

I have to ask, are you opposed to owning black powder, because a pound of black powder is quiet the explosive. Most reloaders own enough explosives to level half their house, so are you opposed to reloading?

I’m not trying to argue, although I likely do disagree, I’m truely curious how and where you draw that line.

And when say you oppose it, do you mean you oppose the view that that is in fact what it says. Or do you oppose that it should say something other than that... hope that makes sense. Maybe a better way to put it, would be, if someone convinced you the 2A did in fact affirm that right would you still oppose it?

 

[readyeddy]

I regret using the word grenade. I was trying to make an illustrative argument. Please lock this thread for being off topic.

 

[jdc1244]

From the OP’s linked article:

“The two majority judges followed the trend of other Circuits where the Second Amendment is being degraded and reduced to second-rate status. Only a month ago, the First Circuit ruled the Second Amendment does not apply outside of the home.

The rogue Circuits are able to do this because the Supreme Court has been refusing to hear Second Amendment cases for nearly a decade. The Supreme Court only hears a limited number of cases. They are not required to hear all cases.”

In general, this sort of ignorance, hyperbole, and wrongheaded nonsense doesn’t help.

With this ruling the Second Amendment is not “being degraded and reduced to second-rate status.”

Rather, the right is being subject to a limitation consistent with current Second Amendment jurisprudence, no different than any other right, such as speech or religious expression.

With regard to magazine capacity regulation, the courts are in no manner being ‘rogue’ – as other circuit courts of appeal have likewise upheld magazine capacity restrictions, in agreement with the level of judicial review applied.

Indeed, as long as the lower courts remain in agreement with regard to the regulation of firearms, the possibility of the Supreme Court hearing most, if any, gun cases is virtually non-existent.

Given how the Court has considered other controversial issues, it likely will continue to refuse to hear gun cases until such time as an appellate court dissents from its sister courts – such as having the effect of invalidating a state’s AWB or magazine capacity measure.

We must accept the fact that the Supreme Court doesn’t consider this and other firearm regulatory measures ripe for review, satisfied to allow Second Amendment jurisprudence to continue to evolve through the political and judicial process.

Indeed, our only recourse at this time to oppose such regulations and restrictions is through the political process.

 

[danez71]

With this ruling the Second Amendment is not “being degraded and reduced to second-rate status.”

True. They should have said the 2A continues to be treated like a second rate Right.

Rather, the right is being subject to a limitation consistent with current Second Amendment jurisprudence, no different than any other right, such as speech or religious expression.

Double talk.

The 2A is being subject to limitations as well as other BOR are subject to limitations.

But the limitations on the 2A are not consistant with, and are far more restrictive than, those placed against the 1A.

Thus, the 2A is being treated as a lessor, 2nd rate, Right.


I thought the pen mightier than the sword?

Are we picking and choosing which Rights are important and which are not?

 

[AlexanderA]

I very strongly disagree with any interpretations of the 2A that attempt to justify personal ownership of explosives, crew-served weapons, etc.

Then you must also disagree with current law, under which ownership of "destructive devices" and "crew-served weapons" is legal. Even new destructive devices can be made and registered (unlike machine guns). AFAIK regulated destructive devices have never been used in crime.

I own several "crew-served weapons." The way I see it, this sort of thing is at the very heart of the 2nd Amendment. After all, the British marched on Concord to seize the colonists' artillery. According to one of the Founding Fathers (Tench Coxe), the 2nd Amendment is meant to cover "every terrible implement of the soldier."

 

[The Liberal]

True. They should have said the 2A continues to be treated like a second rate Right.




Double talk.

The 2A is being subject to limitations as well as other BOR are subject to limitations.

But the limitations on the 2A are not consistant with, and are far more restrictive than, those placed against the 1A.

Thus, the 2A is being treated as a lessor, 2nd rate, Right.


I thought the pen mightier than the sword?

Are we picking and choosing which Rights are important and which are not?

The restrictions on the 1

Then you must also disagree with current law, under which ownership of "destructive devices" and "crew-served weapons" is legal. Even new destructive devices can be made and registered (unlike machine guns). AFAIK regulated destructive devices have never been used in crime.

I own several "crew-served weapons." The way I see it, this sort of thing is at the very heart of the 2nd Amendment. After all, the British marched on Concord to seize the colonists' artillery. According to one of the Founding Fathers (Tench Coxe), the 2nd Amendment is meant to cover "every terrible implement of the soldier."

Honestly, I do. Only the relatively high price of procuring (and the relative scarcity) of crew-served weapons keeps them out of use in crimes, and certain magazine-fed semiautomatic weapons approach crew-served weapons in terms of how many bullets they can accurately launch downrange. If those cost controls were removed, I’d be a staunch opponent of the unrestricted ownership of those weapons.

With that being said, I’m not opposed to their ownership by collectors, museums, bodies of individuals, etc. People willing and able to pay for those tools are (with one exception I can think of) pretty stable, and making policy based off of Route 91 is a flawed idea because there’s a lot of deadly ideas millions of dollars of resources opens up. But there are limits- no reason anyone should have a SAM, anti-tank munitions, etc.

 

[danez71]

I very strongly disagree with any interpretations of the 2A that attempt to justify personal ownership of explosives, crew-served weapons, etc.

I don't think anyone has said the 2A protects gasoline, fertilizer, pressure cookers or 1/3 of the plumbing dept at home depot.

 

[danez71]

Only the relatively high price of procuring (and the relative scarcity) of crew-served weapons keeps them out of use in crimes,

A complete novice with a few bucks and the help of Google blows your theory out the window.

MGs are simply not the 1st choice here.

 

[Zendude]

The Constitution states that the people have the right and moral obligation to overthrow their government in the case it becomes oppressive or tyrannical. One of the intents of the 2A seems to be to ensure that the people have the means necessary to revolt when justified. It doesn’t make sense that “the people” in this case means “the state” because “the state” might very well be the tyrannical government that is the target of the revolt. Therefore, the 2A would seem to imply that military weapons are exactly what the people should have the right to own. The Constitution does not concern itself with hunting rights or even concealed carrying very small weapons.
It is disturbing to think of such events, especially since military weapons have become so destructive but that’s what it says.
I am not saying that I personally think people have the right to own nuclear weapons, but am just pointing out a clear connection between the 2A and military operations.

 

[GEM]

Unfortunately, the defense against tyranny is not important in the current debate. Heller focused on self-defense of the home and meandering about tyranny in discussing of the militia clause. It did not clearly support defense against tyranny.

The NRA does not think from its marketing surveys that defense against tyranny 'sells', so they don't push it. Also, some of those who would fight against governmental tyranny now and in history may not fit their marketing demographic. Thus, they sell insurance and wine.

The build up of cases that support state weapons and mag bans suggests to me that there is little chance, a golden decision that wipes out such will be forthcoming from the Court.

The evil truth about organizations is that they sometimes are more interested in organizational survival than winning a cause that puts them out of business. Clear wins legislatively or judicially takes away a major marketing focus for legislators, governmental executive candidates and business oriented gun 'rights' organizations.