The Greatest Gun Battle in History Begins This Tuesday

[Arlo]

Gonna probably hate myself for stepping in here, but it's where it gets confusing for me.  Be clear I'm a gun owner, with a couple of AR-15s and a couple of AKs among the collection so I'm not just trying to raise a fuss.

I've always read the 2nd amendment in the context of the entire document.  To me what it has always said, and this is trying to frame it within the time frame it was written, that the Feds can't tell the people they can't have personal weapons.  It doesn't say that there can't be regulation on a State level.  It refers to Militia in more then one place and makes it clear that the states are to regulate their own militias under standard guidelines set down by the Feds on the chance they need to be used to defend the country as a whole, but even that is on the OK of each state which provide the leadership for said state militia.  It also says that the Feds would provide the arms if neccesary.

So that individual right to bear arms is also subject to the training and regulation of each state which each of us would be responsible to as gun owners.  If it hits the fan, we're an armed force to be used under federal training guidelines implimented by each state and under the leadership of local officers.

The whole goal of the amendment, reading it from here, was to allow the citizens of each state some protection from the federal government implementing martial law over the country and taking control with a federal army.

So basically a state could impliment different gun laws, yet be responsible to provide it's own militia of armed citizens, trained by the state leaders under federal training standards.

None of that conflicts with any of the statements quoting founding fathers on people owning guns.

Sensible moderate viewpoint without hyperbole. Thank you. 

[lasersailor184]

Perhaps I'm wrong, but I always believed that the constitution regulated what the Federals AND the States could and couldn't do.


For example, it is not only upon the Federal government to not violate the the parts of the Bill of Rights, but the States as well.  The States specifically have to abide by the rights set out, for example in the 4th amendment.



Because of this, it means that the state governments have ABSOLUTELY NO RIGHTS TO RESTRICT GUNS WHATSOEVER.

[wrag]

Gonna probably hate myself for stepping in here, but it's where it gets confusing for me.  Be clear I'm a gun owner, with a couple of AR-15s and a couple of AKs among the collection so I'm not just trying to raise a fuss.

I've always read the 2nd amendment in the context of the entire document.  To me what it has always said, and this is trying to frame it within the time frame it was written, that the Feds can't tell the people they can't have personal weapons.  It doesn't say that there can't be regulation on a State level.  It refers to Militia in more then one place and makes it clear that the states are to regulate their own militias under standard guidelines set down by the Feds on the chance they need to be used to defend the country as a whole, but even that is on the OK of each state which provide the leadership for said state militia.  It also says that the Feds would provide the arms if neccesary.

So that individual right to bear arms is also subject to the training and regulation of each state which each of us would be responsible to as gun owners.  If it hits the fan, we're an armed force to be used under federal training guidelines implimented by each state and under the leadership of local officers.

The whole goal of the amendment, reading it from here, was to allow the citizens of each state some protection from the federal government implementing martial law over the country and taking control with a federal army.

So basically a state could impliment different gun laws, yet be responsible to provide it's own militia of armed citizens, trained by the state leaders under federal training standards.

None of that conflicts with any of the statements quoting founding fathers on people owning guns.

Wonderin if I've read some things into it that you haven't?

IMHO the Preamble lays out a considerable amount of information regarding the Amendments?

I find myself thinkin how can they BAN the so called assault weapons when those are the very weapons that the Militia requires?

In fact some hold the view that the rifles used by some of the colonials were far better and more accurate then the muskets the kings men mostly used?

So some of the colonials actually had weapons that were STATE of the Art at that time?

That being the case, how can you BAN current state of the art weapons, and still have an effective militia?

Doesn't make sense to pass such laws, and didn't make sense when they passed such laws, and will not make any sense should they pass more such laws.

I point out that Blackstone referred to the RIGHT of SELF DEFENSE as the 1st LAW of nature!

Also one of the Justice's referred to a portion of our history when people had weapons to defend themselves against attack of any sort.

Perhaps reading some of the words said thus far may help?

http://gunshowonthenet.blogspot.com/2008/03/dc-v-heller-us-supreme-court-case-07.html

The above link is not the only one available either I'm sure others can post more.

IMHO it's pretty clear that the 2nd was intended as a INDIVIDUAL RIGHT, and I find much of what was recorded in the Federalist and Anti-Federalist papers, which BTW is a record of the formation of our government and the Bill of Rights, AGREES!

True one has to do some reading and thinking to find out such but IMHO it's well worth it.

[Guppy35]

Perhaps I'm wrong, but I always believed that the constitution regulated what the Federals AND the States could and couldn't do.


For example, it is not only upon the Federal government to not violate the the parts of the Bill of Rights, but the States as well.  The States specifically have to abide by the rights set out, for example in the 4th amendment.



Because of this, it means that the state governments have ABSOLUTELY NO RIGHTS TO RESTRICT GUNS WHATSOEVER.

It's all about that comma and how folks interpret it as well as what the founding fathers meant in their references to militias and their training and regulation.

As I said, I'm a gun owner and then some so I'm not anti-gun at all.  But I'd also be lying if how I read the 2nd amendment told me it was just a blanket, everyone can have a gun without any kind of training or regulation.  I don't see it saying that.

I get stuck on the reference to Militia which is spoken of specifically elsewhere in the constitution.  I can't believe they just threw that word out there lightly.



The Congress shall have Power To ... provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

[Guppy35]

Wonderin if I've read some things into it that you haven't?

IMHO the Preamble lays out a considerable amount of information regarding the Amendments?

I find myself thinkin how can they BAN the so called assault weapons when those are the very weapons that the Militia requires?

In fact some hold the view that the rifles used by some of the colonials were far better and more accurate then the muskets the kings men mostly used?

So some of the colonials actually had weapons that were STATE of the Art at that time?

That being the case, how can you BAN current state of the art weapons, and still have an effective militia?

Doesn't make sense to pass such laws, and didn't make sense when they passed such laws, and will not make any sense should they pass more such laws.

I point out that Blackstone referred to the RIGHT of SELF DEFENSE as the 1st LAW of nature!

Also one of the Justice's referred to a portion of our history when people had weapons to defend themselves against attack of any sort.

Perhaps reading some of the words said thus far may help?

http://gunshowonthenet.blogspot.com/2008/03/dc-v-heller-us-supreme-court-case-07.html

The above link is not the only one available either I'm sure others can post more.

IMHO it's pretty clear that the 2nd was intended as a INDIVIDUAL RIGHT, and I find much of what was recorded in the Federalist and Anti-Federalist papers, which BTW is a record of the formation of our government and the Bill of Rights, AGREES!

True one has to do some reading and thinking to find out such but IMHO it's well worth it.

I don't think you can ban them Wrag, in reference to their use by the 'militia".  I think you could argue that it would allow you a whole lot more in terms of being part of that Militia.  It's the old "F16 in the driveway" argument.  As long as I'm willing to be subject to training and regulation, there's nothing stopping me from having one.  Should it hit the fan, I'm responsible to be available for call up.

You can't keep me from having my AR-15s, but I have to be ready to use them beyond just plinking on the weekends and be subject to the military training neccesary to use them in that scenario.  Maybe the gun training class i took when I was 13 is all that means.  I don't know. 

[Toad]

Any links for that Toad?

Nope, just a lot of reading. First of all, read the transcript of the oral argument, noting which justices asked which questions. For example Ginsburg focused on reasonable restrictions of the right to bear. I took that as a good sign when a liberal justice doesn't bother investigating the individual right but focuses on how she might legally restrict that right. I think Souter and Stevens may stick to the collective right but 7-2 suits me.

Then I read a lot a analysis of the arguments, including the other side like Brady. Seems to me the general opinion is that individual right will prevail. The antis are all focused on preserving restrictions.

In general I got the impression that individual right will prevail from the commentary on both sides.

[Toad]

Dan,

I have to disagree. CJ Roberts said

"If it was limited to state militias, why would (the drafters) say 'the right of the people?' In other words, why wouldn't they say 'state militias have the right to keep arms'?"

Pretty favorable opinion by the Chief Justice there saying that it had nothing to do with a state militia. Then you have a liberal-leaning Justice, Kennedy, coming right out and saying the Second Amendment confers

“a general right to bear arms quite without reference to the militia either way.”

When you have the Chief Justice and the liberal swing-vote, things look pretty good for an individual right unrestricted by a subordinate clause.

Also, I'm sure you are aware of the Doctrine of Incorporation that stems from the 14th Amendment. At the heart of it, it focuses on

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law

The basics are summed up here:

The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.

So now which of the first 10 Amendments have been incorporated by the 14th?

1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Incorporated with respect to the protection agains "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.

Part of what will come next is an attempt to incorporate the 2nd once again. When it was rejected in 1876 the SC had never affirmed the 2nd as an individual right. If Heller accomplishes that, I think we'll see another attempt at incorporation with precedent being the 1st, 3rd, 4th, 5th, 6th and 7th Amendments. I think it would have a fairly good chance.

I think what will come first though is a series of cases that will wrangle over reasonable restrictions.

[Elfie]

Nope, just a lot of reading. First of all, read the transcript of the oral argument, noting which justices asked which questions. For example Ginsburg focused on reasonable restrictions of the right to bear. I took that as a good sign when a liberal justice doesn't bother investigating the individual right but focuses on how she might legally restrict that right. I think Souter and Stevens may stick to the collective right but 7-2 suits me.

Then I read a lot a analysis of the arguments, including the other side like Brady. Seems to me the general opinion is that individual right will prevail. The antis are all focused on preserving restrictions.

In general I got the impression that individual right will prevail from the commentary on both sides.

Thanks for that answer Toad.

[Guppy35]

Dan,

I have to disagree. CJ Roberts said
Pretty favorable opinion by the Chief Justice there saying that it had nothing to do with a state militia. Then you have a liberal-leaning Justice, Kennedy, coming right out and saying the Second Amendment confers

When you have the Chief Justice and the liberal swing-vote, things look pretty good for an individual right unrestricted by a subordinate clause.

Also, I'm sure you are aware of the Doctrine of Incorporation that stems from the 14th Amendment. At the heart of it, it focuses on

The basics are summed up here:


So now which of the first 10 Amendments have been incorporated by the 14th?

1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Incorporated with respect to the protection agains "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.

Part of what will come next is an attempt to incorporate the 2nd once again. When it was rejected in 1876 the SC had never affirmed the 2nd as an individual right. If Heller accomplishes that, I think we'll see another attempt at incorporation with precedent being the 1st, 3rd, 4th, 5th, 6th and 7th Amendments. I think it would have a fairly good chance.

I think what will come first though is a series of cases that will wrangle over reasonable restrictions.

I don't know the answer Toad.  I wish the framers had been more clear in how they worded it, and seperated talk of Militia from right to bear arms.  I can't with certainty know for sure based on the wording.

As you say the court will deal with it.  And right now it's a much more conservative court.  But the fact that we can recognize it, also speaks to the politics of it.  The court could and probably will in time swing the other way and the interpretation will be different again.

Again, I like to shoot and have a nice collection of weapons, but I can't look anyone in the eye and say with conviction that the 2nd amendment speaks specifically to that right to have them without some regulation.

Just my take, and I sure don't claim to be right, but I'd rather be honest about my questions about it.  As we all know it's a real flashpoint debate.  I appreciate that this one is civil

[potsNpans]

Does it not read ..."the right of the people"... and not militia whose right it is to bear arms.

[Toad]

The court could and probably will in time swing the other way and the interpretation will be different again.

Of course it will shift; it will shift in the next President's term when justices that are even more liberal will be appointed to replace retiring justices.

The fortunate thing for gun owners is precedence. AFAIK, the SC has never directly addressed the 2nd on the basis of individual right. Now they will and if it goes our way it will be a very difficult precedent to overturn. I think this especially since CJ Roberts & Kennedy have come out so definitively saying the militia has nothing to do with it.

In that vein, I think it's important to get some reasonable restriction cases on the docket as soon as Heller comes down in favor of an individual right. The more restrictions that we can strike down before the court changes the better off we are with precedent.

[lasersailor184]

It's all about that comma and how folks interpret it as well as what the founding fathers meant in their references to militias and their training and regulation.

As I said, I'm a gun owner and then some so I'm not anti-gun at all.  But I'd also be lying if how I read the 2nd amendment told me it was just a blanket, everyone can have a gun without any kind of training or regulation.  I don't see it saying that.

I get stuck on the reference to Militia which is spoken of specifically elsewhere in the constitution.  I can't believe they just threw that word out there lightly.



The Congress shall have Power To ... provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

I was talking about whether or not the states have the rights to limit which guns can and can't be owned.

[Toad]

What you're talking about is incorporation and unfortunately the 2nd isn't incorporated into the 14th's protections.... yet. 

[Bingolong]

bingie must have gone fetal.    His "it all hinges on what the meaning of militia is" and "the people" means "the state"  ideas don't seem to resonate too well with 98% of "the people" and.. it seems.. the judges.

bingie seems to have left the room.   Back to england no doubt.

lazs

Sorry I didn’t think you fellows missed me so much
Well you must not of heard the same case I did. I listened to it three times, have read it at least twice and gone over the text liberally for a few hours with a few of my friends over some wine and cheese….. Hehe.

I’m with Iron no decision on individual or collective.

I don’t think it will be over turned. DC’s ban will stay.
I think the apart/trigger lock thing will go. Even though there are about to be finger print trigger locks and there are also digital lighted locks as well.

Toad you are still wrong Bubba! Militia was all over the case. DC allows the guns needed to “militia” so it’s not an infringement.

Sailor is right Gura is an idiot. Hahaha “Scalia.You want to say yes!” classic! He even concedes the restrictions. He also says for example that a safe is okay but a trigger lock isn’t. What a buffoon. Even if it does get ruled an individual right its going to be subject to whatever restrictions they, the government, would like as Bodhi pointed out.

Personally, I think Levy should have argued for Heller. LOL after, when the two sides at the mic for the media, you could just see the dejected look on Levy’s face [arrrggghh… my millions arrrgghh] poor fellow. In contrast the smug look on the mayors and Dellinger’s face, the look of victory.
Heck, Dellinger made a better case for Heller than Gura did.

Scalia says it himself “Since we need a militia, the right of the people to keep and bear arms shall not be infringed” however disingenuous he is being.

Ginsberg talks about “at the time” 1939 military sawed off shotguns were not military equipment. Same argument I made to you Lazie. On the same token this decision will be made as it applies at the time, 2008. Right? Well, all the judges all know the history of the militia up and too the present day. They know the militia is the NG. Why say anything, they know there is no way “the people” can defeat the government anymore. None of them expressed an interest in giving the people back machine guns so you can just count that out.

Is it an individual right to keep and bear arms that might be useful in militia service {collectively}, yes!

Roberts even touched on the restrictions and that they were allowable, no guns in the market place.

We will have to wait and see but if I had to venture a guess either way it wont be good for the conservative rightwing gun freak fanatics.

[Toad]

Dream on. I'll wager you now it's minimum 5-4 for individual right. It may even get to 7-2. You'll notice, since you've read the oral arguments three times, that even Ginsburg doesn't question on the individual right.

Roberts, Scalia, Thomas and Alito are givens. Kennedy tipped his hand with "“a general right to bear arms quite without reference to the militia either way.”


Name your stakes.