This. Whether a law is just needs to be considered in light of its worst-case abuse potential, not just on the basis of how it is currently being applied. It is a great advantage of the common law system that over-broad, ill-specified or otherwise broken laws can be remedied through precedent, however the responsibility still lies with the government to make laws that are well-considered, based on sound principles and not overly broad.
1. Since the first amendment allows the free exercise of religion, prayer must be allowed in schools as long as no specific religion is established via those prayers?
2. Since the second amendment allows the right to keep and bear arms, without further amendment, that right should be unrestricted by any registration process considered onerous or restrictive?
(e.g., as a student I can gather other students and pray during lunch, but as a teacher I can't force my students to pray.)
Prayer is allowed in schools, government-officer-led prayer is not allowed in public schools.
Not true in California and I think New York state. Threatened in D.C., and I'm no doubt missing more than a few examples.
Needless to say, the majority of US gun owners are opposed to registration (to the point that such a requirement nationwide would light a slow match to a hot civil war; as it is, the post-Sandy Hook registration laws in Connecticut and New York state have been mostly ignored, in these Bluest of states), especially since there are no significant benefits to such schemes. Plenty of us know our 20th Century history as well and the retail and wholesale democide that registration led to abroad.
Also, The 2nd Amendment refers to a state government sponsored and maintained military force. The idea there is an individual right, is a novel invention in the last 30 years. In fact, it was never recognized until all-to-predictable 5-4 decision in 2010.
You are wrong about this.
Please read District of Columbia v. Heller in full (2008). It reviews the history, with ample explanation of the meaning, phrasing, and expectations elucidated through founding-era sources. Please see section D, which has an extensive discussion of how this right was discussed in the 19th century. Upon reviewing the evidence, the court concludes:
> It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.
There is significant evidence in the way of commentary, court opinions, legislation, etc. justifying that the right was understood as an individual right throughout this time:
> In Nunn v. State, 1Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:
> “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law which contravenes this right, State or Federal, is repugnant to the Constitution, and void [...]”
> Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States [...].”
Lastly, you misconstrue the nature of the 5-4 decision. Two years earlier, in 2008, the same justices as who you are referring to also dissented in Columbia v. Heller, and wrote:
> #1. Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals.
> #2. Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting. I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. [...] I shall, as I said, assume with the majority that the Amendment, in addition to furthering a militia-related purpose, also furthers an interest in possessing guns for purposes of self-defense, at least to some degree.
Even the dissenting votes agree that the right to bear arms individually for self-defense is a right protected by the Second Amendment, at least to some degree. Their dissenting votes are based on a disagreement about the scope of that protection, and how it interacts with competing interests in those cases. The dissent involves questions like whether the Second Amendment is incorporated by the due process clause.
The right to arms was part of English common-law (English Bill of Rights of 1689) and in 1689 the right was claimed to be a reinstatement of "ancient rights" originally granted by James II. Fear of a slave revolt was not the primary reason for this right in either time.
In U.S. Supreme Court's D.C. vs Heller (2008) decision ( https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller ), the court claimed that historically the right to bear arms was:
'"clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.' ( https://en.wikipedia.org/wiki/Second_Amendment_to_the_United... )
In The Illinois Supreme Court in People v. Aguilar (2013), the history and reason for the 2nd amendment was summarized ( https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller ):
> "guarantee[s] the individual right to possess and carry weapons in case of confrontation" (id. at 592); that "central to" this right is "the inherent right of self-defense"(id. at 628); that "the home" is "where the need for defense of self, family, and property is most acute" (id. at 628); and that, "above all other interests," the second amendment elevates "the right of law abiding, responsible citizens to use arms in defense of hearth and home" (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.
If the primary reason for the right to keep and bear arms was to guard against slave revolt, it would have been more central to the discussion. Instead, the U.S. Supreme Court was focused on whether or not it was an individual right to self-defense, and they determined it was. While protecting oneself from a slave revolt could be one case of self-protection it was by no means the primary reason.
Let's keep in mind the text of the Constitution:
> [T]he right of the people to keep and bear Arms shall not be infringed.
The foundation of this discussion is simple: that right shall not be infringed. Courts through US history have respected its value and significance:
Any law which contravenes this right is repugnant to the Constitution and void. That's a pretty strong statement to make, and it has been reinforced on many occasions.
> In State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States [...].”
So, why do you believe it was decided wrongly? It seems clear to me that the Second Amendment was intended to protect the individual right to bear arms, not just for military service but for self-defense. The right was seen as necessary for a free society, both in the sense of the strength to resist invasions as well as to resist tyranny of one's own government.
There was dissent in the Heller case, but not about whether the Second Amendment recognizes an individual right. Both of the dissenting votes recognized that it does.
No, its a matter of seizing the guns itself being prohibited by the Constitution. This is not analogous to the case at issue, where the Court would rely on the governments promise not to do what the interpretation of the law the government asks to be upheld would be allowed, instead, what is proposed with regard to the 2nd Amendment is trusting the government not to do something that would be easier with information it has as a result of the interpretation of the law it advocates, but which would still be prohibited by that interpretation. While there may be a problem with that, its not the same type of problem, and bringing it up is mostly inviting a derailment of the thread rather than adding anything to the discussion of the issue at hand in the article.
Note that the "right of the people to keep and bear arms" is a precondition, according to the 2A, for a "well-regulated militia", not vice versa. If you want to repeal the 2A, repeal the fucker, don't try to sneak repeal under the wire with a license to twist the grammar of the law till it says what you want. That just opens the door for the government to justify violating, say, the first and fourth amendments.
That's a fairly strained interpretation, especially given that where the 2A sees a necessary pre-condition (well-regulated militia to the security of a free state) it expressly identifies it as such: a more reasonable interpretation would be that the 2A is based on the strongly implicit premise that right of the people to keep and bear arms is at least useful to a well-regulated militia, whereas a well-regulated militia is a necessary precondition for a secure, free state.
Let me quote from : The [NRA under its new leadership] pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
Look, you're welcome to your opinion; I'm not expecting to change it. But you should recognize that the point is quite a bit more debatable than you make it out to be.
 https://www.law.yale.edu/sites/default/files/documents/pdf/F... (the Reva Siegel article linked from ; that link is dead -- I think this is the intended article)
These articles are examples of what I call "sneaking repeal under the wire". Just because an article comes from a scholarly source doesn't mean it stands up to scrutiny: Michael Bellesiles landed himself in hot water attempting to argue this very issue, that the right to personal arms is a recent invention. The first tell I found in the sources you cited was when Toobin called the amendment text "ungrammatical"; it's perfectly grammatical, just not rendered in modern style.
A more modern restatement of the amendment would be: "Since a well-trained militia is necessary to the security of a free state, the right of the people to own and carry weapons shall not be infringed." The thinking of the time -- and this is all in the freakin' Wikipedia article on the Second Amendment should you care to look -- was that the right to self-defense and to defense against tyranny were of paramount importance -- thinking that predates the Constitution and has its roots in English law. To raise a defense force from among the people it was thought necessary to protect their right to own, train with, and carry weapons.
Now you may say that this right is trumped by others' right to live peaceably without fear of being shot. I won't disagree. But what you should be agitating for is repeal of the second amendment, whose language is very plain once you parse it; not for the courts to obfuscate and reinterpret the meaning. That way does lie tyranny, for the next step is for the courts to interpret away your right to not be searched without a warrant, your right not to be punished for a crime without due process, etc. Because hey, the Constitution is a living document; that means its meaning in times of old has nothing to do with today.
(My belief is that the Constitution was intended as a living document and that's why it has a well specified amendment process of which we should avail ourselves.)
> Now you may say that this right is trumped by others' right to live peaceably without fear of being shot. I won't disagree.
Okay -- we agree on something :-)
> But what you should be agitating for is repeal of the second amendment
This doesn't follow. We all know about restrictions on speech that are seen as legitimate -- yelling "fire!" in a crowded theater, etc.; the examples are familiar -- yet the arguments for these restrictions are not taken as arguments for repealing the First Amendment altogether.
I certainly think that my right to live peaceably, as you say, without fear of being shot, is worthy of some protection and needs to be balanced against gun ownership rights.
I also wonder how well even armed citizens can defend themselves against a tyrannical government in this era of militarized police, modern weapons, and SWAT teams. 240 years ago, the arms technology race had only barely started; now it is in full swing. We know how arms races end: the side with the most money wins. Even if the Second Amendment came to be read to permit citizens to own tanks, drones, etc., people can't afford them.
Personally I think the right to communicate with my fellow citizens unmonitored is more important, and in the end more likely to be decisive.
Citizens have proven very capable of defending themselves in Iraq, Ukraine, Syria.
It's true that a government willing to firebomb entire cities and murder literally everyone could overcome that resistance. However, in the modern era a government that did that would quickly see the entire world turning against them.
It's also worth keeping in mind that even large, powerful, and well-armed militaries are only a fraction of the populace. In the US, something like 1/100 people are in the military. So if the US military turned against the population, and the population resisted, they'd have to fight a force that's potentially 100 times their number. Unless they were willing to firebomb their own cities and murder innocent civilians (as opposed to guerrilla fighters), they'd quickly be overcome.
Wrong. All 9 Supremes interpreted it as an individual right, they could hardly do else so given the written history of all this and the plain language of the Bill of Rights (which amendments, after all, confer a collective vs. individual right?). What they split 5-4 on what did that really mean anything in practice, or, ultimately, could D.C. freeze its registration, and require to you keep your guns unloaded and disassembled until an intruder entered the room you were in.
A set of laws I'll note were often nullified by sympathetic juries. Since Heller and McDonald, a majority of the court clearly holds that you only have a right to keep and bear arms in your home, they've denied cert on all relevant appeals since McDonald.
No. There were two dissents, one by Stevens, one by Breyer. From Wikipedia :
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Justice Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
You must be thinking of the Breyer dissent. Even that does not stipulate that the right is individual, but just argues that even if it is, the DC law was permissible.
Even people who agree with you on the issue recognize that the Stevens dissent does not support an individual right .
Or to restate, it is my understanding that the dissents accept an "individual right" interpretation in some abstract sense before interpreting the whole as meaning nothing for individuals. Which I'll admit is a fine distinction, but this is from the group that finds a right to what they claim is privacy from the "penumbras" and "emanations" of explicit constitutional rights. So making find distinctions like I think I'm seeing, which don't really make any sense anyway is par for the course.
Specifically why not? It seems pretty clear to me. Let's take it point by point.
() the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended
Isn't that pretty clearly an argument that it's not an individual right? I'm sure you disagree with it; I'm sure you think that the individual right aspect is clearly expressed; but given the militia clause and the use of the collective term "the people", someone else might not read it that way. I'm not asking whether you agree with the reading, I'm asking whether you can see that, given that reading, the fact that the framers chose this wording is an argument that they didn't intend an individual right. If not, why not?
() that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only
This seems pretty clear too.
I'll skip the next two points and come to this:
() The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Again, I understand that you think that is exactly the choice the Framers made. Does this very point not show you the depth of the disagreement here?
As for the Reason article, again you claim it does not support my contention. And again, I ask you to explain. The author, Damon Root, senior editor of Reason, clearly thinks it does; see the second sentence.
Look, I don't always have a lot of respect for the Justices either. I think Scalia is an arrogant windbag, and don't even get me started on Thomas. But I would never go around thinking that they don't actually disagree with me.
Post-Heller, post-McDonald, it's moot. The Court's word is Constitution.
If the anti-gun (really, pro-authoritarian-state) minority wants to ban firearms: they should lobby for a Constitutional amendment (which will undoubtedly fail), and then lobby for each individual state to ban arms - keeping in mind, some states have arms in their constitutional documents as well.
And then, once all of the appropriate legislative and political actions have been completed, this group can have police (who will need firearms to actually enforce this law, and most of whom are pro-private-firearms themselves) go door to door and round them up.
What could possibly go wrong?
Every time one of these shootings happens RKBA repeal gets dragged closer to the Overton window. The only question is how much more human blood must be shed.
In the same amount of time, there have been about 158 fatalities due to being struck by lightning.
In 2013 alone, there were 611,105 fatalities due to heart disease and 56,979 due to influenze and pneumonia. The stats are a bit out of date, but from 2005-2009, ~3,500 people drowned each year.
If you're worried about yourself or a loved one dying, don't worry about dying in a mass shooting. It's about as likely as being struck by lightning.
1996 was the year the Australians banned guns.
The problem is not the tools but the people.
Frankly, I don't think the authoritarians have the stomach for gun prohibition. They need to get busy, pronto. It's going to take more, a lot more, than tweets to people who already agree with them. And so far, they've done nothing to get their "Repeal the 2A" ball rolling. Time's a-wastin'.
Well, given that we won't take this passively and will start slaughtering them, retail or wholesale (e.g. kill Blue cities by taking out their electrical system), I would hope they don't "have the stomach" for it. Well, prior to using the amendment process to repeal the 2nd Amendment, and even then that wouldn't change the facts on the ground, just like outside of Illinois Heller and McDonald haven't much changed the facts on the ground.
Evidence for this?
Revealed preferences show Americans buying firearms in steadily increasing numbers, e.g. both November and Black Friday hit new NICS records.
It explains the meaning of the words and phrases, and their intention, and provides ample justification in the way of founding-era sources.
> There are many reasons why the militia was thought to be “necessary to the security of a free state.” [...] When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. [...]
> That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.
Arms are indeed a precondition for a militia, but it seems to me the 2A only exists because the need for a militia was perceived at the time. I'm not so sure that's the case today. In any event, you make a very good point about the danger of 'creative' interpretations.
> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
> Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. [...] [A]part from [its] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
The court also examined the meaning of the word "militia". The word had a different meaning at the time than it does today. The militia did not refer to a specific military force, like the National Guard today. Rather, it referred to a section of the populace:
> As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
> We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
If you want to curb private firearm ownership: please, introduce a constitutional amendment instead of trying to throw shit against the wall and see what sticks.
Then, once said amendment fails to get even a fraction of the support necessary, we can go back to business as usual.
I laughed out loud when I read this. You are very, very naive. If this is representative of your understanding of how US constitutional law works, you shouldn't be commenting.
How are you going to get it ratified?
And once it is ratified, how are you going to contend with state constitutions?
And once those are out of the way, how are you actually going to pry firearms from the hands of their owners?
There are orders of magnitude more private firearm owners than sworn persons in the United States, and these groups largely overlap.
An armed populace was viewed as crucial during the founding of the US because when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. The modern era demonstrates that this is still relevant: see Iraq, Ukraine, Syria, etc. There's a great documentary on Netflix that shows, from footage on the ground, what transpired while the Ukraine crisis unfolded. Ukraine's local self-defense forces gave the protesters a foothold that eventually took down the unjust government (at least, that's the narrative - I'm only remarking on their effectiveness as a fighting force, and their relevance to political change).
Echoing Pyxl101, "Quis custodiet ipsos custodes?" ("Who will guard the guards themselves?"). We gun owners believe we provide a needed bulwark against the worst forms of tyranny, and certainly notice that 20th Century tyrants for some inexplicable reason fell disarming targeted populaces was a prerequisite to slaughtering them wholesale. Given what an abattoir the 20th Century turned out to be, maybe you should seriously consider that bit of unpleasant history?
That whole preface was a compromise of sorts, a sop thrown to the anti-Federalists who wanted to outlaw standing armies and depend on the militia system. Which just wasn't practical in such an unthreatened place like the US, compare to Switzerland---and I wonder what will happen with their post-Cold War downsizing when things get hot again.
And there was the minor detail that George Washington, the essential man in all this, wouldn't sign off on such a prohibition. He's not as anti-militia as he's sometimes made out to be, but his position that a complete dependence on the militia system wouldn't do was unrefutable.
The well regulated part of it came from the observation that if you just keep the militia's weapons in armories except for formal practice and fighting, an excuse the British used to confiscate all of them in Boston, the militia members aren't going to be any damn good with them when put to the test.
Again going back to the Swiss system, at least during the Cold War once you were in the reserves you had to qualify with your personal weapon once a year, failure to score high enough signed you up for a 2 week refresher course. So they have an insane number of 300 meter range lines, subsidized and very high quality ammo sold at them (in theory you're supposed to use it all up on the spot), and a whole bunch of other things to encourage good marksmanship.
Hmmm, you know, going back to what the British did back then, very few of the arguments are new, and the Constitution and the Bill of Rights were based on direct, living memory of their depredations back then. Modify at your peril.
> [We] explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. [...]
> Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. [...]
> There are many reasons why the militia was thought to be “necessary to the security of a free state. [...] When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
2. Edit: Oh I misread slightly. I agree that registration systems should not be extreme to the point that they impede ownership if they want to be constitutional.