It looks like we'll soon find out; the Supreme Court has
accepted cert on
McDonald v. Chicago, a gun rights case brought by Alan Gura, the lawyer who won the
Heller case. The court has been dodging the twin questions of whether the Second Amendment protects an individual right to bear arms, and whether it can be incorporated against the states, for decades. It looks like the question will finally be settled--at least as much as Supreme Court decisions ever settle things--in the next year.
Oh, the hilarity that will occur in these comments.
Megan, thanks for clearly defining the two issues:
1) "individual right to bear arms"
2) "incorporated against the states"
Did Heller.v.DC provide a clear statement that #1 is true?
And if so, is McDonald.v.Chicago directed at a clear statement regarding incorporation?
1: Depends who you ask. I'd say no, it simply held that the Second Amendment prevents the federal government from forbidding most people to keep some types of firearms in their homes.
2: What do you mean by "directed at"? The order (see http://www.scotusblog.com/wp/todays-orders-40/) states the issue as:
(my bold)I don't see any good reason that the rest of the bill of rights (or any other "privileges and immunities" that may be found in the constitution outside the bill of rights) would be incorporated but the 2nd wouldn't.
But IMO there doesn't even need to be any incorporation for the amendment to be valid against the states. The 1st needs incorporation because it is "Congress shall make no law", so absent incorporation it says nothing about the state legislatures making laws, and would only apply to federal restrictions (technically it says nothing about federal regulation, only legislation, but regulatory bodies derive their authority from legislation). The 2nd amendment's closest equivalent term is "shall not be infringed", not "shall not be infringed by the federal government".
1. Yes, according to SCOTUS. There is no ambiguity. From DC v. Heller:
The answer, of course, is that the second is clearly not a "real" amendment in the sense that it does not protect a real right -- nor, I hasten to add, do many of the others in the supremely over-hyped "bill of rights".
Real rights are more solid and lasting. They are granted by well-intentioned progressive overlords and include, but are not necessarily limited to, the following:
- The right to effective, extensive, up-to-date medical care
- The right to nutritious, environmentally-sustainable, delicious food
- The right to clean, attractive, well-designed, modern housing situated in easily-walkable, vibrantly-diverse, multi-use communities
- The right to meaningful, sustainable, socially-reponsible employment
- The right to societally-approved free expression of sexual preference with other consenting beings
The provision of these rights should be society's top -- indeed, perhaps only -- goal. Protecting supposed "rights" like "free speech" or "freedom of religion" or "free assembly" or "the right to bear arms" or whatever else is beyond outmoded.
In a society as rich as ours, every single person's "freedom" should be utterly trammeled if that is what is necessary to provide everyone with an equitable, meaningful, environmentally-sustainable, socially-reponsible existence.
Sure, we have this atavistic desire to cling to these archaic concepts, and that is largely understandable b/c they are familiar and comfortable. But we will not be living in a just, progressive world until we throw them on the dustbin of history as they deserve and allow our betters to redesign our society in a more perfect form.
Naturally, the evil Republicans will try to frighten us with their soceror's talk of "negative rights" and "limited government". Hopefully, the Supreme Court will make the right decision and end our country's sad devotion to this ancient religion of so-called "rights" and help us to conjure up a new progressive age and discover a base for meaningful growth. Then we can be proud of the technological progressive achievements we have constructed.
Frightfully well said. I nominate Blighter for the Progressive Utopia Czar with the inherent power to take away our guns, money, religion and free speech. Just shut up and be happy you silly cows....
Oh, God, this is the funniest thing I've read all day.
That was even funnier when Oliver Wendell Holmes, Jr. said it back in the day. But practically no one got the joke, including most of the rest of the Supreme Court.
I am, sadly, not enough of a legal historian to get the joke. Please explain?
I'm afraid I was actually being sarcastic. Oliver Wendell Holmes, Jr. was the great architest of legal progressivism, and of the overthrow of the older tradition of "substantive due process," under which laws interfering with life, liberty, and property tended to be automatically unconstitutional. Holmes's dismissal of this was in his comment that "The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics" in his dissent in the Lochner case . . . Social Statics being a work in which Spencer argued for the typical libertarian fundamental rights of life, liberty, and property and even for "the right to ignore the state"; Holmes later told a friend "All my life I have sneered at the natural rights of man." His theory was that the law was the command of the state.
In effect, then, he was putting forth quite seriously the ideas that blighter put forth sarcastically. And by swaying the Supreme Court to accept his philosophy, he removed the legal barriers to the Progressive movement, which gave us popular election of senators, the federal income tax, the Federal Reserve, government ownership of spectrum and the restrictions on freedom of speech that it justified, prohibition of alcohol and narcotics, national quotas in immigration, and eugenics and the compulsory sterilization of the "unfit" (it was Holmes who wrote that "three generations of imbeciles is enough" in a decision declaring forced sterilization constitutional). Such measures clearly started us down the road toward where we are now . . . which I think is equally evident whether you think that was a good thing or a terrible mistake.
I was in turn making a joke by suggesting that Holmes was being funny, rather than deadly serious. And now I've spoiled it by explaining it, I expect. But I hope the information is interesting!
That
Was
Awesome
Please, just let the gun-lovers keep their guns in a nice air-tight decision. Maybe I'll not have to hear people whining about liberals trying to take their guns ever again.
Whiners are especially grating when they accurately diagnose the sentiments of liberals whining about Heller.
The very fact that these cases were contested is pretty conclusive evidence that some people, at least, wish to ban guns. You get the liberals to stop trying to take our guns, and we'll stop whining. Seem fair?
Roe hasn't stop whining about attacks on "reproductive freedom," nor should it, because there really are people who are trying to ban abortion.
Pireate: Google HR 42
Seriously. Google it.
It won't pass, but still - if you're looking for proof that Congressmen are looking to actually confiscate firearms, there it is.
If not for the Second Amendment we'd all live in a utopian world where guns are banned and violence is unknown. Like Cuba.
HR 42? You mean:
http://thomas.loc.gov/cgi-bin/bdquery/z?d109:H.R.42:
"To ensure that the right of an individual to display the flag of the United States on residential property not be abridged."
???
I mean, first of all it passed already. Second of all, I fail to see what it has to do with the conversation. Third of all, I'm not worried about what ONE or MANY congressmen are interested in doing. I am interested in what 218 Representatives and 51 Senators want to do. Those things are political reality - the rest is posturing by folks who do posture for a living.
But I googled your nonsense. How exactly the US is supposed to become Cuba because we're allowed to display our flags on private residential property is beyond me.
I'm going to guess HR 42 was not what you meant to point to, but it is an amusing mistake. Perhaps HR 45?
Amen to that, ThatPirateGuy. This is the biggest non-issue ever.
Odd, then, that these cases had to be brought at all, and that somebody was willing to pay a lawyer to defend the laws banning (yes, that is banning) broad classes of guns.
Odd that the courts have to handle frivolous cases brought by Orly Taitz. Anyone can bring a case. With regards to "someone paying a lawyer" to defend a law? We all pay for that lawyer. In Heller, the District of Columbia government was defending their own law. There were many groups that provided amicus curiae briefs (for both sides) but if you're attacking a law as unconstitutional, it is defended by a government attorney.
So the "somebody [who] was willing to pay a lawyer" was the government. There's no conspiracy here -- just the regular functioning of court system. When a law is challenged on civil rights issues, the government defends it. The reasoning, I presume, is that our laws are established by the legislature and should not be thrown out simply because they are challenged. A judicial body must rule as to whether the challenge overrides the will of the majority to create regulation.
jjhare, my point seems to have zoomed right over your head. If, as PirateGuy and Nimed claim, this is a "non-issue," then the laws which these cases challenge would not be on the books. The mere fact that the challenged laws exist at all means that this is an issue, rather than a non-issue.
Actually replying to jjhare:
Many of the municipalities surrounding chicago, when sued, chose to dispose of their bans (unsure if they actually repealed or merely conceded they would be indefensible). So they chose NOT to burden the taxpayer with the costs of defending what is very likely going to turn out to be unconstitutional
Actually, some amendments are more amendmenty than others. Really. Ask a constitutional lawyer.
Well, if it isn't incorporated against the states, I would love to see the reasoning as to why not.
It will be the same as the dissent in Heller: "We prefer that these laws remain in place. They seem like a good idea to us."
Read anything Scalia has written about substantive due process. Read the "Slaughterhouse Cases". There is plenty of SCt precedent relating to incorporation/non-incorporation and Scalia and Thomas would have to engage in some serious gymnastics to find incorporation here when they object so strenuously to it elsewhere.
That's why its such an interesting issue, especially with the current makeup of the court. Will Scalia and Thomas remain faithful to their prior objections? How might the Court distinguish P&I here from the rulings in the Slaughterhouse cases? Will the left side of the court distinguish the 2d from other rights incorporated against the states on substantive due process grounds (and, if so, how)?
This is much more interesting than Roe cases because there are so many countervailing forces at work. Should be an epically long opinion and I wouldn't be surprised by 4 or 5 separate opinions concurring and dissenting. I *would* be surprised if there is a majority opinion as to the entirety of the opinion, rather than just the judgment. I doubt that this will be the final word on the matter, either way.
I would love to see an explanation of why some rights are incorporated and others aren't that doesn't boil down to "we like these ones and not those".
If wishes were horses, beggars would ride.
In fact, logic would dictate that it doesn't need to be "incorporated." Because the First Amendment says "Congress shall" and is therefore logically operative only on the federal government, but the Second is in the passive voice and lists no actor, but merely states "shall not be infringed," and therefore obviously means "not by any actor whatsoever."
From what I read, in the original ruling in Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights did not apply to the states. By the time the Supreme Court got around to overturning that precedent, however, many of the states had already moved to add the rights to their own constitutions. So, for example, the eighth amendment right to a grand jury for capital crimes has never been brought again before the Supreme Court; and so the precedent that this right is not incorporated still stands.
Mishcief and PaulE
You may want to examine the 14th. Without that, you would be correct. I believe that is the explanation for why any amendments are incorporated against the states.
I don't need no stinkin' Bill O' Rights. I am well endowed by my Creator with un-alienable rights goddammit!
This is a point that most liberals really don't comprehend.
The Bill of Rights merely lists some of the rights that we are endowed with by our Creator. It does not itself guarantee our rights, nor does it enumerate all of them. The list itself does not limit the rights we've been endowed with by our Creator. And the Supreme Court isn't our protector.
And of course the Supreme Court will rule that the 2nd Amendment will be incorporated upon the states. Just like all the other rights. They shouldn't need to do it, but if it keeps the doddering old fools in wine and cheese and cases, let them do these one at a time if they so please.
God gave us the rights ... not men.
And anyone who disagrees can take it up with my 12 gauge.
But can someone who disagrees take it up with your m249? What about 100 years from now your great grandkid's plasma rifle?
Somewhat toungue in cheek, but also somewhat serious. If we had the courts 100 years ago that we have today, you wouldn't be able to own a 12 gauge. You should just be contintent with your continental army edition black powder musket.
Technology and time will render the 2nd amendment pretty much meaningless. New classes of weapons will be regulated out of existence for private owners, rendering the 2nd amendment relatively toothless and quaint.
250 years ago you could own the exact same weapons as the military. I'm not arguing for the sale of true assault weapons at Walmart here, but I am pointing out the concern that if the 2nd Amendment is designed to protect our liberty, and to allow citizens to protect themselves from tyranny, then technology progress combined with regulation is rendering (has rendered?) it obsolete.
We'll probably be dead before its an issue though...
A plasma rifle sounds cool...
And, yes, some people read the 2nd Amendment as saying that Rhode Island - or even just Providence - can develop their own nuclear arsenal, as part of their own local militia.
The point that is consistently lost, particularly to liberals but not only, is that the founders recognized how tyranny grows if people aren't enabled to physically stop it. Not just at the ballot box, although that is clearly preferred, but through confrontation if necessary. That is, indeed, the intent of the 2nd Amendment.
The founders weren't anarchists, and they certainly weren't traitors to their own Constitution. They merely recognized just how powerful evil is - and how sometimes you have to stop it at the tip of a bayonet. Or worse.
You are correct, but only to a certain point, re: how quaint our weapons will be. For whatever reason, the old Yamamoto quote of their being a rifle behind every blade of grass is making the rounds again. It's a real quote, and there's certainly enough truth in it. There are plenty of situations where a group of people armed with deer loads would give the local police more than they could possibly handle. Even if they had ray guns...
Yes, if a revolt occurred and one side had hunting rifles while the other had drones carrying laser guided bombs, it would quickly be crushed. But revolts don't always happen that way - particularly if the soldiers are volunteers. Most soldiers (I use that word generically) are conservative. If a revolution was truly in response to tyranny... well, remember the October Revolution.
Considering the Continental Congress didn't consider a large standing army constitutional, the Second Amendment probably should have been an adequate safeguard against liberty. Strange that nobody talks about getting rid of that constitutional abomination.
What I really love about the Second Amendment is it's punctuation.
Technology and time will render the 2nd amendment pretty much meaningless.
A successful revolution does not require defeat of the US Army on the battlefield, which is impossible (and was pretty tough back in the day, see Whiskey Rebellion). It merely requires causing enough trouble to force the politicians into concessions (See Iraq, Afghanistan) or cause such a morale drop in the Army that they refuse to fight.
For that, pretty ordinary weapons are fine, even against huge technological disparities. As to drones with bombs: there are a LOT more armed citizens in the US than bombs.
True. But what is also true is that revolutions always involve citizens committing a lot of illegal actions. Laws forbidding the possession of weapons will be ignored along with the laws protecting government property, using force against the police, etc.
It does help if citizens have piles of weapons in their homes to begin with. But it would help even more if citizens are allowed to have grenades and bazookas in their homes. There's obviously a need to balance these things out.
Nimed,
The willingness to illegally own a gun is useless without a supplier, and a revolution will require a lot more guns than we can expect to be smuggled from Mexico, unless we're willing to wait 30 years while we slowly build up our armory.
Re: grenades and whatnot, reliable tactical rifles and suitable handguns are enough to (say) force your way into the local Guard Armory, especially if a few of the Guardsmen are on your side.
What do you mean "will"? We're still talking hypotheticals, right? I thought we had agreed that all the stuff we've been planning is to be discussed in only in a secure channel.
So there is a need to balance things out. In your view, citizens must be allowed to have at home at least the necessary firepower to assault local Guard Armories. I don't know about that. Somebody that knows more about these things than me should make the case that all we would ever need is home-made explosives and large supplies Guy Fawkes masks.
The amendment states:
"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 "people" in this instance refers to the distinction between the newly constituted government (the potential infringer) as opposed to the individual STATE (i.e, the people). Other interpretations of this are self serving BS. The ordinance in Chicago (I am a resident) does not prohibit owning firearms (explicit prohibition - which could be rationally opposed), it prohibits owning handguns (meaningful regulation of a class of device).
The ordinance is in place because handguns are overwhelmingly present and facilitate violence in ways that other methods of doing harm do not. (and I swear I will shoot the next person that says "guns don't blah, blah, blah") YES, there are other ways of killing, but in Chicago, 90% of those killed, GET killed because a Lorcin .380 or better was instantly available. Not a shotgun, not a rifle, not an AK or an AR; they get killed because a gun with substantial power was instantly at hand. They get killed because the killer was able to approach with his weapon concealed until his lack of skill with it wasn't relevant. The "defending your home" BS is just that, because unless your weapon is loaded and accessible, and you are closer to IT than the intruder is to YOU, you are unlikely to be ABLE to respond like you do in your fantasy. Defending your home? Best bet is a pistol grip Mossberg 12, (like MINE, 2 hands, less precision req'd) and a rehearsed PLAN.
The delusional nonsense about "tyranny" and 'forcing your way into the local Armory' is evidence for GREATER regulation not lesser. Local control over local issues, isn't that what you preach? Well HERE, the prevailing desire is to NOT be shot by some pencil neck p**sy,who wouldn't raise his voice, or look you in the eye, UNLESS he had a gun. All of the discussion about "rights" is simply morons mouthing words fed to them, for reasons they don't have the ability to really comprehend.
So says the would-be tyrant who wants to confiscate all guns and leave the government with a monopoly on the use of force.
Less a tyrant than an idiot. Ulysses, you DO understand that criminals are not deterred by the laws prohibiting the posession and use of firearms? You understand the concept of a "public good" where the fear that a potential victim is armed serves as a deterrent? Did you know that the UK, with draconian gun control laws, is still 4X as violent as the US? http://www.dailymail.co.uk/news/article-1196941/The-violent-country-Europe-Britain-worse-South-Africa-U-S.html
Do you understand, and are you confortable with, the fact that the unavailability of firearms means that the small, old, weak, of "different" are at the mercy of the large and brutal? I think that the average "pencil neck p**sy," not to mention 115 lb woman, 70-year old man, or homosexual, has more to fear from a 6'4", 280# man than the reverse.
Castle Rock vs. Gonzales, 2005. The Supremes ruled that citizens do not have a right to police protection (the plaintiff's estranged husband repeatedly violated a restraining order. He ultimately kidnapped and murdered the plaintiff's three children). This means that you're on your own.
I do agree with you that the idea of using a deer rifle to overthrow the government is a joke, though. My sense is that Tea-party nonviolent protests, labor strikes, and the common decency of the average American (volunteer) soldier is what it would take to back down the government. I will observe, though, that nonviolent protests can remain nonviolent as long as the SEIU thugs fear a peaceful protester with a Peacemaker.
You don't get to create facts by fiat. As William Renquist explained in United States v. Verdugo-Urquirdez (1990):
"the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
BTW...you are certainly an innovative thinker. Ineffective use of a civil right leads to that civil right being cancelled? Can I take away your right to free speech because you're "logic challenged"?
Nimed:
I should have pointed out earlier that the ideal revolution is of course NONviolent, and indeed any cause popular enough to deserve to win will attract lots of unarmed folks along with the armed ones. That is, less an Iraq scenario than a Tienanmen scenario. In that case, the existence of a large private armory--and the presence of concealable handguns in that armory--may help to prevent the government from doing something stupid in response to popular protest.
I agree, though, that in an actual rebellion, private possession of explosives and the knowledge of how to use them effectively would be worth thousands and thousands of men with rifles.
The "people" in this instance refers to the distinction between the newly constituted government (the potential infringer) as opposed to the individual STATE (i.e, the people).
So I take it that the First Amendment protects the right of state legislatures to peaceably assemble to pass laws, and the Fourth Amendment protects state governments from intrusions into their papers and effects, but neither has no impact on the power of the Feds to ban political meetings or search your house?
Winston Churchill's advice to Englishmen
in the event of a German invasion:
Each one kill one.
So I take it that the First Amendment protects the right of state legislatures to peaceably assemble to pass laws...
Rob Lyman: but we usually don't think of newspapers (First Amendment) or the owners of papers and effects (Fourth) in terms of state governments. But "well-regulated militias" are obviously governmental organizations.
Thought experiment: let's say a particular state government was genuinely concerned about federal tyranny, and like Switzerland required all able-bodied males to own rifles and participate in drills. But, in the interest of gun safety, and to make it difficult for these weapons to pass into use by criminals, it set up secured storage facilities and required that all the guns be stored there. Oh, and it authorized a number of different long gun models for use, but only officers were authorized to use handguns.
Now, I'd be against such a system, because I think citizens ought to be able to keep firearms at home for protection, but I think an honest, plain reading of the constitution would compel one to admit that the state in question was not acting unconstitutionally.
And for the record I oppose firearms bans, but think gun owners -- the vast majority of whom are responsible, prudent people -- ought to support regulations that enhance public safety (the kind of thing we see in countries that enjoy widespread firearms ownership but much lower rates of gun crime and homicide, ie., Switzerland, Canada, Germany, Finland).
But "well-regulated militias" are obviously governmental organizations.
Well, fine, but that's not what Ulysses said (he said people = state), or what the amendment says (the right of the "people," not the right of the "militia"). And of course, it seems to me fair for citizens to be worried about state-level tyranny too, given that it actually occurred in living memory.
I think an honest, plain reading of the constitution would compel one to admit that the state in question was not acting unconstitutionally.
If you're presuming that they also ban all private possession of arms, I'd disagree (though this probably isn't the time for a knock-down fight over it).
[Gun owners] ought to support regulations that enhance public safety (the kind of thing we see in countries that enjoy widespread firearms ownership but much lower rates of gun crime and homicide
Well, if you know of any such regulations, let me know. There are plenty of theoretical ones--required training and licensing, for instance--which seem to respond to vanishingly tiny threats (accidents are tragic but also infrequent). And of course the US has enjoyed much looser gun laws in the no-so-distant past, which corresponded with (but were not necessarily the cause of) much lower crime.
As in health care, international comparisons are tricky. Mexico has much stricter laws than the US, but isn't exactly Switzerland.
You know, I went to law school, and I felt we never spent enough time on the Third Amendment. There were whole semesters dedicated to different clauses of the First Amendment, and we blew past the Third in about two minutes on the second day of Con Law. Maybe that's my niche. Third Amendment scholar.