McDonald ET AL., v. City of Chicago SCOTUS ruling in favor of 2nd...Woo Hoo

[insanebikerboy]

A state may not be able to outright ban gun ownership, but they can still make it exceedingly difficult to attain one and illegal to carry in public. But the ruling is harmful to those who want the federal government's power to be limited.

That wonderful American Heller is currently challenging DC's process of getting a gun, which could have impacts around the nation. If you're not aware, it is amazingly difficult to get a gun there now, even after the ruling from the original Heller case.

 

[helolumpy]

" ... The question in this case, then, is not whether the Second Amendment right to keep and bear arms (whatever that right’s precise contours) applies to the States because the Amendment has been incorporated into the Fourteenth Amendment. It has not been. The question, rather, is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom. And to answer that question, we need to determine, first, the nature of the right that has been asserted and, second,whether that right is an aspect of Fourteenth Amendment “liberty.” Even accepting the Court’s holding in Heller, it remains entirely possible that the right to keep and bear arms identified in that opinion is not judicially enforceable against the States, or that only part of the right is so enforceable ..."

Now I ask you: what in the fuck does the above mean ... ??? It is noteworthy that Breyer, Ginsburg, and Sotomayor did not join in this opinion. Thank God (I believe the Supreme Court still says 'God') the guy is retiring ... and soon.

My take is that this is Stevens’ way of saying the court should make a determination on what the 2nd Amendment actually means.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The American Bar Association has said that the verbiage in this Amendment is the most hotly debated sentence in the Constitution.
This might be Steven's way of getting gun control increased by having the court actually spell out what the 2nd Amendment means. Does the right to keep and bear arms apply to all citizens or only those who are part of a well regulated militia? If the latter, then who regulates that militia? Since the militia is a State function, the States would have the power to then determine who can own a gun since they will determine who is in the militia.

 

[Steve Wilkins]

My take is that this is Stevens’ way of saying the court should make a determination on what the 2nd Amendment actually means.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The American Bar Association has said that the verbiage in this Amendment is the most hotly debated sentence in the Constitution.
This might be Steven's way of getting gun control increased by having the court actually spell out what the 2nd Amendment means. Does the right to keep and bear arms apply to all citizens or only those who are part of a well regulated militia? If the latter, then who regulates that militia? Since the militia is a State function, the States would have the power to then determine who can own a gun since they will determine who is in the militia.

The ABA is also a pretty left leaning organization. Regarding the 2nd Amendment and the "well regulated Militia", let's recall that the Constitution was written such that the Federal government's power was limited and the first ten amendments were not even supposed to be necessary. The Bill of Rights does not "give" us any right whatsoever. Whoever believes this is sadly misinformed.

 

[helolumpy]

The Bill of Rights does not "give" us any right whatsoever. Whoever believes this is sadly misinformed.

Well James Madison and Thomas Jefferson both felt they were important enough to add, so I'll defer to them.

 

[nittany03]

Well James Madison and Thomas Jefferson both felt they were important enough to add, so I'll defer to them.

The fact that the Bill of Rights exists does not mean that the Bill of Rights grants people any specific right. If you believe that it does, you misinterpret one of the essential differences between the American style of government and the European style from whence it came. Governments do not grant rights. Constitutions do not grant rights. Rights are inherent in one's being born a human being. Governments can only support or violate these rights, not create them. The State is not the font of liberty, merely its enforcer. A government derives its just power from the consent of the governed. Sound familiar? Reread John Locke, John Stuart Mill, and Thomas Hobbes. I think Jefferson and Madison would agree with me. The State exists to support and protect the People, not the other way around.

And if that makes me a right-wing wingnut, then bag me up and ship me off to the hardware aisle at Home Depot.

 

[Seafort]

+100 to nittany03.

I just explained this elsewhere:

Inherent civil rights should not be denied to any person. Again, the historically the US has had only a marginally better track record with this than anyone else, but inherency is supranationalist and rather held by humankind as a whole by virtue of being human.

The Bill of Rights was put into place because certain members of the Constitutional Convention were concerned that a future administration would ignore or abridge them if not spelled out. The amendments only make clear was already understood to be the sort of "inalienable rights endowed by their Creator."

And I'm a liberal, Democratic voting, Austinite.

The Second Amendment is a description of an inherent right of a person to bear arms in case the need arises to defend one's self, one's family, and one's property. It is not a mandate to own a gun (I don't, I won't), but nor can it be twisted to allow the States to abridge, truncate, or unreasonably restrict the ownership of a gun.

Period. End of Story. You want it changed? Repeal it with a 2/3rds majority.

 

[helolumpy]

The fact that the Bill of Rights exists does not mean that the Bill of Rights grants people any specific right. If you believe that it does, you misinterpret one of the essential differences between the American style of government and the European style from whence it came. Governments do not grant rights. Constitutions do not grant rights. Rights are inherent in one's being born a human being. Governments can only support or violate these rights, not create them. The State is not the font of liberty, merely its enforcer. A government derives its just power from the consent of the governed. Sound familiar? Reread John Locke, John Stuart Mill, and Thomas Hobbes. I think Jefferson and Madison would agree with me. The State exists to support and protect the People, not the other way around.

I will have to disagree with your view in that it seems that government doesn't take a 'unless is specifically prohbitited, then it's authorized' approach to rights as you view them.
(Not disagree agreeing with that is what the founding fathers meant however)

It seems that in today's environment, unless the right is specifically spelled out in the Constitution then the government feels it can regulate, tax, control or prohibit it if they desire.
For example, the Congress passed legislation regarding the registration of sex offenders under the Commerce Clause; which gives Congress the power to regulate commerce internationally, interstate and with Indian Tibes. How are Sex Offenders commerce???

So if the Bill of Rights was not specificlly spell out the rights they do, IMO we would have a very different interpratation of the Constituion today that we presently have.

 

[m26]

The Second Amendment is a description of an inherent right of a person to bear arms in case the need arises to defend one's self, one's family, and one's property.

I think that's a fairly tortured interpretation.

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

The plain text concerns the defense of the state, not the home. There's a fairly clear conditional in that sentence, which says the right of the people to bear arms is contingent on the necessity of a militia to our security. You could make an argument that it is (National Guard, Reserves), but I think that obscures the fact that gun ownership is a right today in a different way than it was in 1776.

If you want the constitution to unequivocally support gun rights, you'll need to change it, as you say, by amendment.

In the interim, I would think that a neutral observer (if there is such a thing) would have to defer to the 9th amendment in re gun rights.

So if the Bill of Rights was not specificlly spell out the rights they do, IMO we would have a very different interpratation of the Constituion today that we presently have.

The point is not that these rights need Constitutional protection to avoid getting trampled by an overzealous government. They do. The point is that we have natural rights to, say, free speech and freedom of religion that would exist whether or not the constitution exists. The constitution protects these rights that already exist, rather than magically granting them to us otherwise unworthy peons.

 

[m26]

Internet problems. Double post.

 

[Pugs]

The plain text concerns the defense of the state, not the home. There's a fairly clear conditional in that sentence, which says the right of the people to bear arms is contingent on the necessity of a militia to our security. You could make an argument that it is (National Guard, Reserves), but I think that obscures the fact that gun ownership is a right today in a different way than it was in 1776. .

If you want to go historical on it then you need to also consider what the militia was in the days of the founding of our country. It was composed of every male over 16 and to say that they were "well regulated' in the sense that with think today is erroneous. Without much of a standing Army expected for the country the militia was expected to muster in the event of their need. They did get much more well regulated as war approached (French and Indian, Revolutionary) but by no means was it expected that there was "drill weekend".

The equivalent today would be me having an M-4 in my safe ready to go defend the local populace in the event of need. Oh, wait. I have that.

 

[Seafort]

I think that's a fairly tortured interpretation.

You may think so, but SCOTUS doesn't agree, and historically, I don't think the Founders would either.

The plain text concerns the defense of the state, not the home. There's a fairly clear conditional in that sentence, which says the right of the people to bear arms is contingent on the necessity of a militia to our security. You could make an argument that it is (National Guard, Reserves), but I think that obscures the fact that gun ownership is a right today in a different way than it was in 1776.

Actually, given what the founders faced at the hands of the British, militias could not even be formed unless one was able to defend oneself and one's family and property. True, we now have pistols under the pillow instead of rifles above the mantle (well some of us have rifles above mantles as well), the idea of protection from home invasion is the same. Many of the rights in the Bill of Rights are specifically laid out because when British soldiers came into houses they:

Conducted searches and seizures without warrants.
Foraged without compensation.
Seized weapons that could have been used to prevent their entry.
Held people for long durations without charge.
Held people without lawyers.
Forced people to incriminate themselves under duress.

The language says that weapons in the hands of the people are for the protection of the "free State." The keyword here is free, as in liberty. This is not indicating a given government or administration or territory. It is speaking to the concept of a "free State."

If you want the constitution to unequivocally support gun rights, you'll need to change it, as you say, by amendment.

Proverbial you or was that actually directed at me? I'm personally very ambivalent about personal firearms. That doesn't change what I believe the Constitution says, and what SCOTUS has ruled that it does say. I'm not a gun lobbyist. I am not a member of the NRA. While I have been trained to operate firearms safely, I do not want one in my home. It is my right not to bear arms if I don't want to. That being understood, it doesn't change all of what I said above.

The founders wanted us to have guns in our houses ready to be used if necessary.

The point is not that these rights need Constitutional protection to avoid getting trampled by an overzealous government. They do. The point is that we have natural rights to, say, free speech and freedom of religion that would exist whether or not the constitution exists. The constitution protects these rights that already exist, rather than magically granting them to us otherwise unworthy peons.

Yes. I concur. The Founders clearly believed keeping a weapon in the home was an inherent right independent of any State granting it.

 

[m26]

I stand by my assessment. I'm not talking about the grand constitutional argument. The 2nd amendment "describes" in the text the right to gun ownership as based on home/self defense only very obliquely, if at all. That's all I'm saying.

Proverbial you or was that actually directed at me?

Two proverbials and one direct. English

 

[Seafort]

So are you seriously suggesting an interpretation where the right to "keep" and "bear" arms, just in case they're needed in the case of territorial invasion, means that actually using those arms in home defense is unconstitutional?

 

[mmx1]

Extraconstitutional, not unconstitutional.

 

[m26]

mmx1 has it.

"The second amendment makes no direct reference to home, property, or self defense."
^Do you object to this statement?