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Reactions to Supreme Court Ruling on Gun Rights

By Jeralyn, Section Court Decisions
Posted on Thu Jun 26, 2008 at 10:33:35 AM EST
Tags: Second Amendment, gun rights (all tags)
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Here's a thread for reactions, your own and others, to today's Supreme Court decision in D.C. v. Heller. I have provided selected quotes from the opinion here.

< Supreme Court: Second Amendment Conveys Individual Right to Bear Arms | Thursday Open Thread >

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    Reactions to Supreme Court Ruling on Gun Rights | 190 comments (190 topical)

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    The "conservatives" (5.00 / 3) (#1)
    by andgarden on Thu Jun 26, 2008 at 10:37:01 AM EST
    are willing to practice judicial activism. The shtick about "legislating from the bench" is once again revealed as opportunistic nonsense (in my opinion. . .).

    I donb't think so (5.00 / 3) (#4)
    by befuddledvoter on Thu Jun 26, 2008 at 10:41:55 AM EST
    This opinion is very consistent with Scalia's textual approach.  This is not judicial activism at all.  The right to bear arms in this country precedes our federal constitution.  And how is this activism??

    [ Parent ]
    Two reasons (5.00 / 2) (#7)
    by andgarden on Thu Jun 26, 2008 at 10:43:38 AM EST
    One, as BTD says, overturning precedent without acknowledging it. And two, misreading the Constitution to suit political aims.

    [ Parent ]
    the right to bear arms (5.00 / 2) (#9)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:44:04 AM EST
    in the service of a MILITIA predates the Constitution.

    that is what the 2nd amendment protects.

    [ Parent ]

    That was the reading I always understood (5.00 / 1) (#12)
    by andgarden on Thu Jun 26, 2008 at 10:46:01 AM EST
    to be correct. The left has given up on that recently.

    Who would have thought that we'd have a Democratic nominee who recognized an individual right to bear arms? Not me.

    [ Parent ]

    Self defense (none / 0) (#88)
    by Wile ECoyote on Thu Jun 26, 2008 at 11:40:57 AM EST
    is best left to the Government.  It works so well in DC.

    [ Parent ]
    This is an argument to repeal the law (none / 0) (#94)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:43:33 AM EST
    It has nothing to do with the Constitution.

    [ Parent ]
    I think the individual right to bear (5.00 / 1) (#21)
    by gyrfalcon on Thu Jun 26, 2008 at 10:55:51 AM EST
    arms for personal protection so pre-dates the Constitution that it was simply assumed and didn't need to be spelled out, like, say, the right to own a horse so you could get from place to place.  The Founders were not prescient and could not envision today's world.  In the world they knew, it would have been inconceivable that individuals could be told they couldn't own a gun, since that would in practice mean a death sentence.

    I don't like guns and would be thrilled to have everything but single-shot rifles for hunting in the countryside banned, but I think it can't legitimately be done until there's a broad enough consensus on it to pass a Constitutional amendment-- largely thanks to the hysterical but all too persuasive NRA "slippery slope" propaganda.

    Speaking, of course, totally as an utter layman on constitutional issues. (ie, I may well not know what I'm talking about!)

    [ Parent ]

    So it is a 9th amendment argument you present (5.00 / 1) (#26)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:59:15 AM EST
    Scalia would not agree with you. He does not believe the 9th Amendment protects any rights. He is a fierce opponent of the entire unenumerated rights doctrine.

    I take it you disapprove of the opinion even if you agree with the result then.

    [ Parent ]

    If indeed the right to bear arms (none / 0) (#38)
    by frankly0 on Thu Jun 26, 2008 at 11:11:20 AM EST
    was meant to embrace the sorts of needs you describe, why wouldn't the Founders have said something like this instead of what they did say:

    A well regulated Militia, being necessary to the security of a free State, and men, having the imperative to defend themselves and their families, the right of the people to keep and bear Arms, shall not be infringed.

    You see, that's my problem with Scalia's forced interpretation of the language of the Second amendment. He's acting as if the purpose of the right had not been mentioned, which it was, or as if further possible purposes -- such as the general right to self defense -- had not been omitted, which they were.

    His is just a contrived interpretation of the actual language of the amendment. The natural interpretation would pay due note to what was said, as well as to what was not said.

    [ Parent ]

    What "the people" meant in the 1780's (none / 0) (#96)
    by Dadler on Thu Jun 26, 2008 at 11:44:49 AM EST
    Think about what, in fact, was meant by "the people" at the time of the constitution's drafting.  The founders intended land owning males essentially.  By the way, guns were not so available then, or cheap, or reliable.  The government bought it's revolutionary war weapons from Europe, since there were no manufacturers of any not here.  It wasn't until the 19th century, leading up to the Civil War slaughter, that technology and manufacturing advances and government encouragement and support allowed for large scale production.

    [ Parent ]
    Bone-Headed Liberal that will not accept the facts (none / 0) (#190)
    by Cajunrebelrouser on Sat Jun 28, 2008 at 08:02:29 PM EST
    Your argument that the founding fathers never could foresee the availability of firearms is ridiculous. Could the founding fathers foresee broadcast television or the internet? I guess the first admendment does not apply?  

    You are still trying to argue that the people do not have a right to bear arms. What is it about Liberals  that they are so open-minded that their brains fall out? Plain simple English is not acceptable for Liberals. Why is it that Liberals are so smart that they can not conceive that they may hold a wrong opinion? I'm wrong from time to time , but I can understand 'the right of THE PEOPLE'

    [ Parent ]

    You're arguing what you think the law (none / 0) (#51)
    by myiq2xu on Thu Jun 26, 2008 at 11:21:16 AM EST
    should be.

    As of today, that's not what the law is.

    I always thought Miller was a bad decision.

    [ Parent ]

    I am arguing what the law WAS until today (none / 0) (#84)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:39:42 AM EST
    The Court today, without justification, overturned a 68 year old precedent.

    As you know, the overturning of settled precedent is no small thing and believing that the precedent is wrong is NOT ENOUGH to overturn it.

    [ Parent ]

    Lawrence v. Texas? (none / 0) (#110)
    by Alec82 on Thu Jun 26, 2008 at 11:58:12 AM EST
    That precedent was younger.  I'm not sure what justified overturning it beyond believing that it was wrongly decided.  

    [ Parent ]
    The younger the precedent (none / 0) (#120)
    by Big Tent Democrat on Thu Jun 26, 2008 at 12:18:58 PM EST
    the less deference it deserves.

    [ Parent ]
    Does that really make sense? (none / 0) (#186)
    by Alec82 on Thu Jun 26, 2008 at 09:12:12 PM EST
    If you think about it, the older precedent is, the less well-settled many of the principles supporting that decision are likely to be.  Moreover, there's a much stronger argument to be made, textually and historically, for a right to own a gun than there is, say, for the right to have sex with a person of the same gender.

    [ Parent ]
    Originalism (none / 0) (#140)
    by MKS on Thu Jun 26, 2008 at 12:50:54 PM EST
    means everyone is entitled to his or her own musket.

    [ Parent ]
    The rights of the people belong to the state.... (none / 0) (#185)
    by Rojas on Thu Jun 26, 2008 at 08:00:22 PM EST
    But wallmart Inc. is a person....

    age of reason


    [ Parent ]

    Oh, I don't know about that (5.00 / 1) (#11)
    by gyrfalcon on Thu Jun 26, 2008 at 10:45:55 AM EST
    Seems to me it's a thoroughly legitimate interpretation of the 2A, one which half the legal scholars in the country, or more, agree with, including some who aren't reactionary right-wing gun nuts.

    Since I'm not a legal scholar, I'd get real originalist and decide the Constitution was only protecting ownership of the basic kinds of firearms that existed at the time, that being single-shot rifles, and that anything outside that was never even conceived of being constitutionally protected-- ie, handguns, automatic weapons, etc.

    I wonder if Scalia et al have ever given a moment's thought to the number of people who will die or be permanently maimed as a result of their decision.

    [ Parent ]

    DC had the ban since 1976 (5.00 / 1) (#19)
    by befuddledvoter on Thu Jun 26, 2008 at 10:53:49 AM EST
    DC has one of the highest homicide rates in the country. The ban does nothing to address this.  It is illegal guns for the most part used in homicides. Scalia well understands this.  

    He is a hunter and during oral argument, it was obvious he was very familiar with firearms.    

    [ Parent ]

    So Scalia as legislator? (none / 0) (#24)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:57:55 AM EST
    that is your defense of this opinion?

    [ Parent ]
    well the legislature (none / 0) (#48)
    by Salo on Thu Jun 26, 2008 at 11:18:12 AM EST
    tend to be a bit ginger about comitting to any lawmaking. So he's filling a void.

    [ Parent ]
    Please do not put those words in my mouth (none / 0) (#85)
    by befuddledvoter on Thu Jun 26, 2008 at 11:40:39 AM EST
    Scalia is anything but a legislator.  That is your spin only.  I mentioned Scalia being a hunter and very familiar with firearms termonology because I thought it was interesting, and nothing more.    

    [ Parent ]
    these were the words from your mouth (none / 0) (#104)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:50:50 AM EST
    DC has one of the highest homicide rates in the country. The ban does nothing to address this.  It is illegal guns for the most part used in homicides. Scalia well understands this.

    You cast Scalia in the role of judging the efficacy of the DC law.  My comment put no words in your mouth. you wrote those words, not me.

    [ Parent ]

    does he hunt (none / 0) (#25)
    by TimNCGuy on Thu Jun 26, 2008 at 10:58:20 AM EST
    with a handgun?

    Was it argued in any way that a ban on handguns would have any effect at all on hunters?

    [ Parent ]

    He hunts with Dick Cheney ... (none / 0) (#68)
    by Ellie on Thu Jun 26, 2008 at 11:28:18 AM EST
    ... which is worse.

    [ Parent ]
    If he hunts with Dick Cheney (5.00 / 1) (#123)
    by myiq2xu on Thu Jun 26, 2008 at 12:26:57 PM EST
    then he probably wants to be able to shoot back.

    [ Parent ]
    I still can't believe Cheney and his Ringwraiths (none / 0) (#157)
    by Ellie on Thu Jun 26, 2008 at 01:14:07 PM EST
    ... made that old man apologize.

    [ Parent ]
    Sorry if this is chatty... (none / 0) (#171)
    by Thanin on Thu Jun 26, 2008 at 03:44:38 PM EST
    but this is just hilarious.

    "vote for Senator Mccain and you'll get more of the Same." - Hillary Clinton
    [ Parent ]
    Even shotguns (none / 0) (#108)
    by Wile ECoyote on Thu Jun 26, 2008 at 11:55:35 AM EST
    and long rifles had to be turned in or rendered inoperable in DC.

    [ Parent ]
    Handgun history is older than USA (none / 0) (#77)
    by wurman on Thu Jun 26, 2008 at 11:35:09 AM EST
    This is a brief, non-technical summary (link):

    By 1754 the civilian use of firearms had been common in England for some three hundred years and in its American colonies from the outset. Over the centuries, technology had led to the replacement of cumbersome, heavy, and inaccurate military weapons by more reliable and smaller flintlock muskets and, in the eighteenth century, by the famous Brown Bess musket. Lighter fowling pieces and pistols were also available and popular for personal protection and hunting. By the mid-seventeenth century, well-to-do women had taken to carrying little "pocket pistols" that could fit in a purse. By the eighteenth century the handgun had also become the weapon of choice for duels and highway robbery.

    For a replica of General Washington's pistol see here (link):

    One more for effect (link):

    George Washington's favorite weapon was a flintlock pistol made by the famous London gunsmith Hawkins in 1748. This perfect non-firing replica features working hammer and trigger mechanisms. It has a simulated-brass engraved barrel and silver-finished engraved fittings, including Washington`s nameplate on the grip. This is the most famous of all colonial classic weaponry, a keepsake to hand-down generation to generation

    Firearms tech was more advanced than your comment indicates.

    [ Parent ]

    Fell too far from #21 (none / 0) (#83)
    by wurman on Thu Jun 26, 2008 at 11:39:40 AM EST
    Response to gyrfalcon

    [ Parent ]
    An excellent agrument! (none / 0) (#100)
    by Wile ECoyote on Thu Jun 26, 2008 at 11:46:16 AM EST
    and freedom of speech was never meant to encompass the internet, radio, telegraph, telephone, computers or TV either.  After all, they were not envisioned by the framers.

    [ Parent ]
    Rights kill people? (none / 0) (#191)
    by Cajunrebelrouser on Sat Jun 28, 2008 at 08:04:36 PM EST
    How many people have died because of the First Admendment? Im sure many. Should we scrap that one?  Come on man grow the hell up!

    [ Parent ]
    Since when is upholding (5.00 / 2) (#13)
    by talex on Thu Jun 26, 2008 at 10:46:02 AM EST
    an Amendment to the Constitution activism? You may not like guns but the law of the land is the law of the land.

    I say thank God they upheld the law of the land.

    [ Parent ]

    i don't see how anyone can read the 2nd ammendment (5.00 / 1) (#31)
    by TimNCGuy on Thu Jun 26, 2008 at 11:03:00 AM EST
    and then assert with a straight face that the right to own firearms is distinct and separate from the militia.

    The ammendment is on 27 words long and the first 4 words are "A well regulated militia"

    [ Parent ]

    yeah (none / 0) (#57)
    by talex on Thu Jun 26, 2008 at 11:23:54 AM EST
    and a militia are citizens...

    and the guns they own are regulated.

    So what is your problem?

    [ Parent ]

    That is what I came to also (5.00 / 1) (#73)
    by MissBrainerd on Thu Jun 26, 2008 at 11:32:49 AM EST
    The court did not say there could be no regulation, just no outright bans.

    [ Parent ]
    my problem is that the (none / 0) (#70)
    by TimNCGuy on Thu Jun 26, 2008 at 11:30:54 AM EST
    court said the right to arms was separate from the well regulated militia.

    And, if you don't separate it from well regulated militia, and there aren't any state militias NOW, having been replaced with the National Guard, there would seem to me to longer be a RIGHT to a gun.

    So, it seems logical the a state or local govt should be allowed to ban certain types of weapons if they wanted to.  Especially if that state or local govt has no plans to organize a well regulated militia in its name.

    [ Parent ]

    I'm glad the court (none / 0) (#79)
    by talex on Thu Jun 26, 2008 at 11:37:22 AM EST
    said the right to arms was separate from the well regulated militia. That makes your previous argument null and void.

    In many ways the language of the constitution 200 years ago was inadequate to address more modern times and the 'intent' of the framers. It is up to the courts to update that 'intent' with laws that fit the times.

    Botttomline: Guns will never be outlawed in this country.

    And if they ever were outlawed by some future US Government you will end up wishing you owned one.

    [ Parent ]

    isn't the argument of the strict constructionists (none / 0) (#132)
    by TimNCGuy on Thu Jun 26, 2008 at 12:39:36 PM EST
    that judges should not be trying to interpret "intent".  they should just look and see what is actually THERE in the constitution and not be trying to adjust it to make it apply to today's society?

    I never advocated OUTLAWING guns.  But, I see no valid reason for not allowing different locales such as DC to ban certain types of firearms.  And, I see no need for the average citizen in a urban environment to own a hand gun.

    [ Parent ]

    Well (none / 0) (#135)
    by Steve M on Thu Jun 26, 2008 at 12:44:36 PM EST
    if the average citizen is a yuppie, you may be right.  But every major urban area has places where you simply can't count on timely police protection.   Some places are so dangerous that the cops won't go there, period.  If I were forced by circumstances to live in such a place, you better believe I'd want a gun for my family's protection.

    Banning handguns might be acceptable if we lived in a world where everyone can just dial 911 and the police are there within minutes to make everything safe.  In the rural areas, and in the more dangerous parts of the urban areas, that's not the actual situation.

    [ Parent ]

    well then wouldn't you expect (none / 0) (#168)
    by TimNCGuy on Thu Jun 26, 2008 at 02:12:25 PM EST
    that persons who live in dangerous urban environments would feel even safer if they had a machine gun instead of a hand gun?  then they would be able to "mow down" multiple gang members and ner-do-wells faster by just spraying ammo in the general direction of the group that intended to do them harm.

    [ Parent ]
    the people (none / 0) (#192)
    by Cajunrebelrouser on Sat Jun 28, 2008 at 08:10:47 PM EST
    Who exactly are "the people" ?   Being that you are so intelligent and I so dumb , please explain who "the people" are.

    [ Parent ]
    I don't think the Constitution says (none / 0) (#14)
    by andgarden on Thu Jun 26, 2008 at 10:47:24 AM EST
    what you think it does, apparently.

    [ Parent ]
    The 2nd ammendment is problamatic (5.00 / 1) (#76)
    by MissBrainerd on Thu Jun 26, 2008 at 11:34:22 AM EST
    Is there another ammendment that is so ambiguous and open to many different interpretations?/

    The Constitution is the best document ever written for free people, but nothing is perfect.

    [ Parent ]

    Apparently (none / 0) (#54)
    by talex on Thu Jun 26, 2008 at 11:22:04 AM EST
    the courts, the federal government, states, counties and cities - and millions of law abiding citizens disagree with you and agree with me.

    The argument about the 2nd amendment is fruitless with people who are just afraid to death of guns.

    [ Parent ]

    Not Afraid Of Guns (none / 0) (#139)
    by daring grace on Thu Jun 26, 2008 at 12:49:33 PM EST
    Unhappy with the pervasive misuse of them, but not otherwise afraid of them.

    But arguing how many agree with you is unpersuasive as to the correctness of this ruling: It's the argument that maintained oppression, like slavery, and second class citizenship status for anyone not a property owning white male in the U.S. for years.

    Tradition and prevailing values can be lousy moral compasses.

    [ Parent ]

    Wyatt Earp (none / 0) (#143)
    by MKS on Thu Jun 26, 2008 at 12:53:31 PM EST
    wasn't afraid of guns but still enforced the city ban of his day....

    [ Parent ]
    Most people who are killed are killed (none / 0) (#165)
    by MKS on Thu Jun 26, 2008 at 01:38:14 PM EST
    by people they know....

    As a parent, I would be afraid to let my kid play in homes with guns....Handguns are meant to kill people....

    I do think the D.C. ban was a bad law--people should have a right to a handguns in their homes for self-protection.....

    Personally, no guns in our house; and there are so many, many murder/suicides...I like the idea of using brains over brawn for protection....Lighting, alarms, barking dogs, calls to 911, etc....  

    [ Parent ]

    We don't keep guns in our (none / 0) (#181)
    by Grace on Thu Jun 26, 2008 at 05:17:59 PM EST
    home either.  I also believe that your brain is your best weapon.  

    Not only that, as someone else once said:  "If anyone wants to hurt me, he's going to have to bring his own gun."  

    [ Parent ]

    I've never even held a gun.... (none / 0) (#189)
    by kdog on Fri Jun 27, 2008 at 11:38:18 AM EST
    but I full support the right of individuals to own them...even assault rifles.  

    I go with the Lousville Slugger home security system myself...and my mutt.  I'd be too afraid of an accidental shooting somebody to own a gun...it's very hard, if not impossible, to accidentally bat somebody.  I always thought if you want to kill somebody you should use a knife or blunt object....up close and personal.  Guns make it too damn easy to kill....too bad we can't uninvent the blasted things.

    But if the authoritarian police state trends, and food and gas price trends, continue...I might just have to get one yet....to be prepared for a Mad-Max like existence in a post-apocolyptic America:)

    [ Parent ]

    Applause!! (none / 0) (#90)
    by befuddledvoter on Thu Jun 26, 2008 at 11:41:57 AM EST
    Thank you!

    [ Parent ]
    the most interesting thing here is (none / 0) (#2)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:39:57 AM EST
    the decision to overturn a settled precedent but to not own up to doing so.

    [ Parent ]
    The decision doesn't "overturn" Miller (5.00 / 1) (#40)
    by scribe on Thu Jun 26, 2008 at 11:12:19 AM EST
    Rather, Scalia (correctly) notes that (a) Miller was a one-sided decision in that Miller never filed a brief (only the United States filed a brief) and (b) the discussion of the Second Amendment and precedent in the United States' brief was cursory at best and (c) goes on to limit Miller pretty much to its own facts.

    It's not overturning - it's distinguishing.

    Actually, Scalia has some verbiage regarding (i.e., denigrating) Miller and one-sided adjudication which would properly and accurately be put to use to condemn things like ... military tribunals, CSRTs, and such.

    [ Parent ]

    Hah! (none / 0) (#87)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:40:53 AM EST
    I grant you Scalia CLAIMS he did not overturn Miller, but you and I both know he did.

    [ Parent ]
    One should only count (none / 0) (#133)
    by scribe on Thu Jun 26, 2008 at 12:42:36 PM EST
    a decision as having been overruled, when the Court explicitly says "we overrule...".  Otherwise, one can run into nasty problems when writing or responding to briefs.

    As the law stands now, Scalia (for the Court) distinguished Miller into relative insignificance, but the Court did not overrule it.  But, it still has some vitality left.

    [ Parent ]

    Which is the first thing Stevens's dissent (none / 0) (#3)
    by andgarden on Thu Jun 26, 2008 at 10:41:21 AM EST
    calls them out on.

    [ Parent ]
    And what precedent (none / 0) (#6)
    by talex on Thu Jun 26, 2008 at 10:43:17 AM EST
    would that be? Don't say states rights.

    BTW - off topic - but is this blog going to remain silent on Obama's cloture non-vote yesterday?

    [ Parent ]

    Miller (none / 0) (#10)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:44:52 AM EST
    Are you unfamiliar with the case?

    [ Parent ]
    As justice Stevens writes (none / 0) (#16)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:48:16 AM EST
    [S]tate militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.27 As we explained in Miller: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." 307 U. S., at 178.

    (Emphasis mine.)

    [ Parent ]

    I'm not quite sure (none / 0) (#32)
    by talex on Thu Jun 26, 2008 at 11:04:01 AM EST
    how that makes your case. Stevens is saying Miller guaranteed the Second Amendment. Again Miller had to do with registration not banning.

    [ Parent ]
    you asre mistaken (none / 0) (#36)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:09:37 AM EST
    Miller declared that ownership of a machine gun was not guaranteed under the Second Amendment outside of use in a Militia.

    [ Parent ]
    Vaguely familiar (none / 0) (#20)
    by talex on Thu Jun 26, 2008 at 10:55:33 AM EST
    as a gun owner I think I recall Miller being about the registration of guns not the outright banning of them, in this case handguns.

    Apples and oranges. How can you even begin to argue that Registration and Banning are the same? You must be anti-gun to come to that stretch of a conclusion.

    [ Parent ]

    You are mistaken (none / 0) (#28)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:00:01 AM EST
    Miller involved the banning of machine guns.

    [ Parent ]
    Excuse me (none / 0) (#35)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:08:42 AM EST
    It involved the claimed constitutional right to own a machine gun.

    [ Parent ]
    A MACHINE GUN!!! (none / 0) (#72)
    by talex on Thu Jun 26, 2008 at 11:31:29 AM EST
    MACHINE GUN!!!

    MACHINE GUN!!!

    MACHINE GUN!!!

    If your argument can't distinguish between a gangsters MACHINE GUN and a law abiding citizens hand gun then there is nothing to argue about because you have no argument.

    If you can't distinguish between a case having to do with a 1934 gangster era case "Passed in response to public outcry over the St. Valentine's Day Massacre" and the banning of hand guns of law abiding citizens in their own homes then you have no argument.

    Apparently you don't believe in the right for a citizen to own a handgun in their own home. Is that correct?

    [ Parent ]

    My argument is based on the Constitution (none / 0) (#92)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:42:39 AM EST
    not on you ALL CAPS response.

    If I understand you correctly, you are saying the 2nd Amendment meant "handguns" not "machine guns" when it uses the word "arms."

    It is an interesting interpretation.

    [ Parent ]

    Whatever Man (none / 0) (#130)
    by talex on Thu Jun 26, 2008 at 12:38:30 PM EST
    You know damned well that the distinction between handguns and sporting arms versus automatic weapons is well documented including a now expired 10 ban on assault weapons.

    So your argument is totally nonsense. Give it up. You are just flat wrong and not looking any to knowledgeable on the subject by making such arguments.

    [ Parent ]

    The D.C. ban was overbroad (none / 0) (#146)
    by MKS on Thu Jun 26, 2008 at 01:01:24 PM EST
    It should have been struck down on privacy grounds....One's right to privacy includes having a hand gun in one's home for personal protection.  Griswold and penumbras ride again.

    It could have been struck down on the basis of violating people's "liberty" under Substantive Due Process.  Those routes would have required less legislative writing than Scalia's opinion.

    [ Parent ]

    Whatever Man - pt 2 (none / 0) (#134)
    by talex on Thu Jun 26, 2008 at 12:43:47 PM EST
    additionally when the 2nd amendment was written there were no readily available over the counter automatic weapons to be had.

    In addition society back then was not what it is today. Use a little common sense Armando. Sometimes the constitution has to be reworked to reflect the realities of today and sometimes we need to have judges that have to try to determine the 'intent' of the framers and put it into present day terms and laws. If those things were not done we would still have slaves and women would not be able to vote.

    [ Parent ]

    Heh (none / 0) (#137)
    by Steve M on Thu Jun 26, 2008 at 12:47:15 PM EST
    So you're under the impression that slavery ended, and women got the right to vote, as a consequence of judicial decisions?

    BTD has not argued that there is no difference between machine guns and handguns.  He has simply argued that Scalia did not offer any convincing basis for setting aside prior precedent.  The reason, it seems to me, is that Scalia's actual reasoning process is completely inconsistent with his ostensible judicial philosophy.

    It's all well and good for you or me to write "sometimes the constitution has to be reworked to reflect the realities of today."  Tell me, have you seen language like that in many Scalia opinions?

    [ Parent ]

    Yes, I have (none / 0) (#149)
    by MKS on Thu Jun 26, 2008 at 01:04:41 PM EST
    Scalia believes that the Original Intent matters....

    In this case, the Founders weren't liberals afraid of guns; so, guns is good.  You have to get back to the anti-liberal, god-fearing beliefs that made this country great.  And guns are part of that....

    [ Parent ]

    Okay (none / 0) (#151)
    by Steve M on Thu Jun 26, 2008 at 01:07:41 PM EST
    Please point me to one or two of the Scalia opinions you've seen where he has written something like "sometimes the constitution has to be reworked to reflect the realities of today."

    [ Parent ]
    Bush v. Gore (none / 0) (#155)
    by MKS on Thu Jun 26, 2008 at 01:10:26 PM EST
    Scalia believes in a living, breathing constitution flexible enough to avoid anarchy....And federalism, allowing states to  have their own laws, can be so darned inconvenient when conservatives don't run the states....

    [ Parent ]
    I gather (none / 0) (#158)
    by Steve M on Thu Jun 26, 2008 at 01:15:44 PM EST
    that you agree with me that Scalia has never written anything like that.

    [ Parent ]
    Ahem, Bush v. Gore (none / 0) (#161)
    by MKS on Thu Jun 26, 2008 at 01:24:23 PM EST
    Scalia was with the majority on that one....No such thing as Federalism when it becomes inconvenient.....

    Loosey, goosey, Equal Protection analysis to be applied according to one's own political belief, righto?

    [ Parent ]

    Which militias use only handguns? (none / 0) (#145)
    by MKS on Thu Jun 26, 2008 at 12:55:24 PM EST


    [ Parent ]
    Well, once again (none / 0) (#188)
    by pedestrian on Fri Jun 27, 2008 at 11:12:44 AM EST
    that is a distinction for the legislature, not a constitutional argument.

    Does your copy of the Second Ammendment say that people have an individual right to own handguns, but can only own machine guns as part of a well-organized militia?  

    [ Parent ]

    I'm not mistaken (none / 0) (#41)
    by talex on Thu Jun 26, 2008 at 11:12:52 AM EST
    DC had to do with hand gun banning which are use for personal protection and sport shooting.

    Hand guns are not machine guns. So your saying that they are one and the same and that the SCOTUS " overturn[ed] a settled precedent" is hogwash. The two cases are entirely seperate

    In my post I specifically named handguns. And then you come back with machine guns? Ridiculous. The two are apples and oranges as are Miller and the recent Heller case.

    One must be able to distinguish between a hand gun and a machine gun in order to rationally argue the difference between the two cases I suppose.

    [ Parent ]

    he's not saying that at all (none / 0) (#78)
    by TimNCGuy on Thu Jun 26, 2008 at 11:37:11 AM EST
    he's saying if it doesn't go against anyone's  constitutional RIGHTS to ban machine guns, why is it unconstitutional to ban hand guns?

    How have the justices justified allowing the ban of machine guns and not allowing the ban of hand guns?

    Who gets to decide which weapons can be banned and which cannot?

    Did this ruling auomatically negate the ban of machine guns?  If it didn't, why wouldn't someone just use this ruling to overturn the ban on machine guns?  and on, and on, and on until every one of us can own any type of weapon we want to.

    [ Parent ]

    The answer (none / 0) (#93)
    by talex on Thu Jun 26, 2008 at 11:43:05 AM EST
    to your question about the difference between machine guns and hand guns is well documented and I won't try to sumerize it here.

    But I will say that a little common sense in distinguishing between the two would go a long way to answering your own questions.

    [ Parent ]

    Well (5.00 / 1) (#102)
    by Steve M on Thu Jun 26, 2008 at 11:48:35 AM EST
    It would be nice if the answer were well documented in this opinion.  Judges are supposed to explain the reasons for distinguishing or harmonizing prior precedent, not leave it to random Internet commentors to explain What Scalia Really Meant.

    [ Parent ]
    Who said there was any precedent? (none / 0) (#124)
    by talex on Thu Jun 26, 2008 at 12:31:58 PM EST
    I don't think precedent was even argued in the case was it?

    [ Parent ]
    the second ammendment doesn't (none / 0) (#144)
    by TimNCGuy on Thu Jun 26, 2008 at 12:54:36 PM EST
    state anything specific about DIFFERENT types of firearms.  if you can't constitutionally ban hand guns based on the 2nd ammendment, then how can you ban machine guns based on the ammendment?  The 2nd ammendment has no definition in it of firearm that would allow you to distinguish between a hand gun and a machine gun.

    [ Parent ]
    Ah, "common sense" (none / 0) (#162)
    by MKS on Thu Jun 26, 2008 at 01:25:49 PM EST
    as a basis of interpreting the Constitution....That doesn't sound like Originalism to me.....

    [ Parent ]
    Big Tent, I'm afraid that you are unfamiliar... (none / 0) (#187)
    by tommythegun on Fri Jun 27, 2008 at 05:45:48 AM EST
    with the case (Miller).  In point of fact, so are Stevens, and the dissenters, since they argued that Miller et al were convicted under an NFA violation in the case (which they weren't).  First off, Miller had nothing to do with machine guns.  The respondents in the case were arrested by Treasury agents for carrying a short-barreled shotgun across state lines without paying for a tax stamp.  Second, the Court's ruling in Miller did NOT require that any weapon subject to the 2nd Amendment be exclusively used in a militia, only  that the weapon in question (a short-barreled shotgun) had no reasonable relationship to the preservation or efficiency of a well-regulated militia (whether another weapon, which presumably might have had such a relationship, would be protected was a case that the Court never addressed). There is a subtle, but clear distinction which the Court in Heller realized, and which the dissent relying on Miller failed to grasp.

    Secondly, the dissent also failed to grasp the legal definition of militia (which, interestingly, the Court in Miller seemed to). The Miller decision found "...the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."  The Court in Heller correctly distinguished between the Unorganized militia (the type referred to in Miller, and recognized in the Militia Act of 1792, currently in 10 USC 311, which specifies all male citizens or those expressing an intent to become a citizen between the ages of 17 and 45, all females part of the National Guard, excepting certain public officers, as belonging to the Militia) and the Organized Militia (the type address by the Militia clause of Article I in the Constitution, currently organized under the National Guard following the Militia Act of 1903).

    [ Parent ]

    please don't go off topic (none / 0) (#15)
    by Jeralyn on Thu Jun 26, 2008 at 10:47:50 AM EST
    send an email if you'd like to see something else covered, or put it in an open thread. Thanks.

    [ Parent ]
    Sorry (none / 0) (#22)
    by talex on Thu Jun 26, 2008 at 10:55:56 AM EST


    [ Parent ]
    I think Stevens wraps it up nicely here (5.00 / 2) (#5)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:43:02 AM EST
    When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more
    than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.14 And the Court's emphatic reliance on the claim "that the Second Amendment . . . codified a pre-existing right," ante, at 19, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.

    (Emphasis mine.)

    In order for there to be a militia (4.00 / 1) (#29)
    by Radix on Thu Jun 26, 2008 at 11:00:13 AM EST
    the people would need to be armed, or there would be no point of a militia at all. At the time of the writing and signing of the constitution, rifles were common place. It may not have occurred to the writers that they would have expressly state the obvious, people have to have weapons if a militia is to be formed. Nor, do I imagine, that the writers believed that the states would have to telegraph their intentions by arming the citizens themselves, as one of the purposes of a state militia was to defend the state from the Fed.

    [ Parent ]
    you put the cart before the horse (none / 0) (#39)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:11:34 AM EST
    In order to assert the right under the Second Amendment, the use of the "arms" must be related to membership in "a well regulated Militia," not in the potential membership in a well regulated militia.

    [ Parent ]
    That's not the law (none / 0) (#47)
    by myiq2xu on Thu Jun 26, 2008 at 11:17:14 AM EST
    Scalia said so.

    [ Parent ]
    We are discussing (5.00 / 1) (#67)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:28:15 AM EST
    the Constitution, and indeed, I accept the statement of  Marbury v. Madision that the Constitution is what the SCOTUS says it is. So technically, you are correct.

    but Scalia's interpetation is incorrect. Even though it is now the law of the land.

    [ Parent ]

    I don't believe so. (none / 0) (#80)
    by Radix on Thu Jun 26, 2008 at 11:38:24 AM EST
    I believe I addressed this point in my original post. One of the purposes, as intended, for militias, was the check against an over reaching central government. If the citizens of a particular region didn't already own arms, then the State they reside in, arming them, would not go unnoticed by the Fed. I don't believe militia is a condition of own arms, instead, I view it as a extra benefit to a State or region of having an already armed populace.

    [ Parent ]
    Could this reflect on corporate personhood? (5.00 / 1) (#30)
    by Carolyn in Baltimore on Thu Jun 26, 2008 at 11:02:40 AM EST
    "All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body." from Scalia's opinion

    Through some sleight of hand ~100 years ago, corporations were granted the same rights as individuals. Which gives them huge power since they do not die and individuals aren't held to account etc etc etc.

    This quote gives me hope that someday we can revisit the fact that corporations are allowed rights that belong to the people.

    Yes, one can hope... (none / 0) (#170)
    by Rojas on Thu Jun 26, 2008 at 02:58:31 PM EST


    [ Parent ]
    Support for the Bill of Rights (5.00 / 1) (#34)
    by Jim J on Thu Jun 26, 2008 at 11:08:10 AM EST
    isn't just limited to warrantless wiretapping and other Fourth Amendment concerns.

    We have the right to keep and bear arms in this country. Period.

    The "but, but, only for militia" dissent is a red herring. No way the founding fathers intended for private citizens to be prohibited from owning personal firearms in any way, militia or no militia.

    Great decision by the court here.

    I've (none / 0) (#43)
    by Ga6thDem on Thu Jun 26, 2008 at 11:13:00 AM EST
    listened to some debates on this. The only agreement that most people can come to is that the second amendment was poorly written.

    [ Parent ]
    Well (none / 0) (#44)
    by Big Tent Democrat on Thu Jun 26, 2008 at 11:13:50 AM EST
    There is a convincing argument. "period."

    Actually, that is exactly what they intended. Otherwise the language about a well regulated militia would not have been included in the Amendment.

    More to the point, the Court has just overturned a 68 year old settled precedent without in any way explaining why that is acceptable.

    You can argue that Miller was wrongly decided, but that is not sufficient to overturn it.

    [ Parent ]

    As to that language you mention: (none / 0) (#148)
    by Jim J on Thu Jun 26, 2008 at 01:03:34 PM EST
    It clearly does not limit gun ownership to militia. Otherwise it would have been far more explicit, yes? As in: "The right to keep and bear arms will be allowed insofar as the needs of a well-regulated militia dictate."

    Yes?

    The lack of distinct prohibition means we have the right to keep and bear arms in this country.

    Period.

    Deal with it.

    [ Parent ]

    Come on (none / 0) (#154)
    by Steve M on Thu Jun 26, 2008 at 01:10:21 PM EST
    You could make this "the language could have been clearer" argument in either direction.  Obviously the clearest way to convey that there is a right to keep and bear arms, period, is to write "There is a right to keep and bear arms."

    People who refuse to acknowledge that there are two sides to the argument make this particular debate extremely tiresome.

    [ Parent ]

    There are not two sides actually (none / 0) (#174)
    by Jim J on Thu Jun 26, 2008 at 04:06:59 PM EST
    The Supreme Court has ruled on this. There's one side, the correct side.

    Nice way to dodge my point, btw.

    So: Any answer as to why the fathers didn't specifically prohibit individual gun ownership in the absence of a militia if that's actually what they intended?

    Didn't think so.

    [ Parent ]

    Heh (5.00 / 1) (#175)
    by Steve M on Thu Jun 26, 2008 at 04:39:00 PM EST
    I can acknowledge that the language could be clearer in support of EITHER position.  Why can't you?

    The idea that once the Supreme Court rules, the issue is settled now and forever, is something I've noticed people tend to apply very selectively.  Prior to today, there was precedent squarely against the individual rights position, and I doubt you considered that the other side of the debate was the only correct side.

    Your immature brand of triumphalism is extremely annoying, and I'm just going to let you go on your way at this point.

    [ Parent ]

    No. (none / 0) (#52)
    by jtaylorr on Thu Jun 26, 2008 at 11:21:42 AM EST
    "We have the right to keep and bear arms in this country. Period. "
    The ruling was 5-4.
    So unless you feel you know more about the Constitution than Justices Breyer, Stevens, Souter, and Ginsburg, then this debate is hardly settled.
    The fact of the matter is, if Kerry had won in 2004, the ban would have been upheld.


    [ Parent ]
    A 5-4 decision is still the law (none / 0) (#62)
    by myiq2xu on Thu Jun 26, 2008 at 11:26:02 AM EST
    If pigs had wings they would be eagles.

    [ Parent ]
    You of course recognize (none / 0) (#156)
    by MKS on Thu Jun 26, 2008 at 01:13:02 PM EST
    that the Founding Fathers also believed in Federalism?  

    Certain rights would be protected by the Bill of Rights--that did not mean that the states did not have the ability to curb other rights...

    [ Parent ]

    OT but i've seen just how "progressive" (1.00 / 2) (#42)
    by Salo on Thu Jun 26, 2008 at 11:12:57 AM EST
    our friends are.  can we get a condemnation of th edeath penalty from his followers?  At least? pretty please?

    wow.

    Salo, can you stay on topic? (none / 0) (#66)
    by Tortmaster on Thu Jun 26, 2008 at 11:27:34 AM EST
    BTD, here is my best rationale:

    I figured Scalia would recognize that militas, at the time of the framers, were average citizens who did not belong to the Illinois National Guard or the Vermont State Police. Thus, whether you look at the "Right of the People" (obvious individual right) or the "militia" clause (militias used to be just average individuals), there was an argument for an individual right.

    For that reason, I thought an individual right would be recognized, and I really cannot argue with the logic -- although I want to do so.

    The big issue for me was regulation. Even if you have a fundamental right to own a gun, does it have to be a handgun (i.e. the automatic weapon, bazooka argument)? I would think that Washington, D.C. would have put on some very COMPELLING evidence vis-a-vis murder rates, accident rates, etc. Why can't a D.C. resident just own a shotgun -- not sawed off?  

    It will now become a challenge for municipalities to regulate the right as far as they can, but without an outright ban, and then try to respond to the court challenges that are sure to come.  

    It looks like this is going to go a similar route as Roe v. Wade, with a right announced and insular jurisdictions chipping away at the right through "regulation" of that right -- but with no outright ban. Yet.  


    [ Parent ]

    yapp yapp. (1.00 / 1) (#128)
    by Salo on Thu Jun 26, 2008 at 12:37:04 PM EST


    [ Parent ]
    And now we have yet (1.00 / 1) (#89)
    by mikeyleigh on Thu Jun 26, 2008 at 11:41:13 AM EST
    another mealy-mouthed, weasel-worded response from our constitutional law teaching Democratic nominee.  Senator Obama is truly pathetic.

    Sadly, it seems like an OK decision. (none / 0) (#8)
    by MissBrainerd on Thu Jun 26, 2008 at 10:43:42 AM EST
    I hate guns, would prefer no one have any at all, but this is America.

    Thank goodness they said we can still regulate in some ways.

    But how can we charge people with extra jail time for committing a crime with a gun they have a right to own?

    What makes it an ok decision? (none / 0) (#17)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:50:10 AM EST
    Is it a proper interpretation of the Constitution? does it respect a settled precedent of 68 years? Does its reasoning explain why a settled precedent has been overturned?

    It is a very poor decision.

    [ Parent ]

    If yo