Saturday, August 13, 2011

It's an individual right

The issue isn't whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question we are trying to decide. The text of the Amendment, its history, and the decision in United States v. Miller, 307 U. S. 174 (1939), provided a clear answer to that question.

In that case. The Supreme Court upheld a conviction under that the National Firearms Act holding that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment The Court took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

6 comments:

  1. "But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

    Incorporation just happened. While it took decades for 1st amendment issues to be resolved, I would garner it will take significantly less time for the 2nd.

    And of course we do have 'shall not be infringed' (which hasn't been tested), as well as protection with arms in common usage.

    McDonald mentions 'fundamental' right enough times its probably not terribly hard to figure our a framework once the level of scrutiny is decided. As far as you and I know, the court may eventually just adopt the same methodology as used with the 1st.

    I predict strict scrutiny or intermediate. Rational is unlikely at best. We'll know soon enough within the next 2 years. Fast enough by federal standards.

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  2. Incorpotation?

    How can something which relates to Federal powers under Article I, Section 8 Clause 16 be incorporated against the states?

    If you believe that the Second amendment means that:

    the right of the people to carry arms shall not be infringed?

    Then, do you believe that criminals and terrorists have a right to arms?

    Please reread this post and try to understand it.

    But given the gibberish you posted, I doubt that is possible.

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  3. Then, do you believe that criminals and terrorists have a right to arms?

    14th. Due process already eliminates such issues.

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  4. How can something which relates to Federal powers under Article I, Section 8 Clause 16 be incorporated against the states?

    Article I, Section 8 Clause 16 amended by 2A upon ratification. 2A takes precedent.

    If you believe that the Second amendment means that:

    the right of the people to carry arms shall not be infringed?


    Its dicta and what the courts believe. Miller doesn't address this potion. As the court found, its a separate clause much as religion and assembly are separate freedoms.

    Then, do you believe that criminals and terrorists have a right to arms?

    14th and due process. One is neither of the 2 labels unless they have been found guilty of a crime. You ought to know that already.

    "But given the gibberish you posted, I doubt that is possible."

    I thought you profess to have gone to law school? Any 1st year student would understand what I've written above.

    May I suggest you refresh yourself of the following terms

    'fundamental rights' with regards to the framework used to refrain local/state power.
    'incorporation doctrine'
    and
    'levels of scrutiny' as in strict, intermediate, and rational.

    Heller and McDonald are dicta; as in holding. They are as likely to be overturned as Slaughterhouse, Roe v Wade, etc.

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  5. It seems to me the 2nd Amendment is anachronistic and meaningless. Why gun-rights folks keep leaning on it is a mystery. If guns were another tool like any other, why cite the Constitution for proof of the right to own it?

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  6. "It seems to me the 2nd Amendment is anachronistic and meaningless. Why gun-rights folks keep leaning on it is a mystery. If guns were another tool like any other, why cite the Constitution for proof of the right to own it?"

    Because there are plenty of you out there that would ban any gun you could. Then there are those like Laci that continue to beat the dead horse about some silly collective rights notion that was popular with a some folks for a few years.

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