Tuesday, February 14, 2012

The Second Amendment is an Individual right--big whoop!

One of the major problem with saying that you find the individual right interpretation of the Second Amendment to be nonsense is that you have people such as LegalEagle45 who keep reminding me that its "an individual right".

But the problem is saying it is an individual right is that in and of itself is meaningless. 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.

But, the right created by the Heller-McDonald decisions is extremely limited.

the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Not to mention the holding:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

allows for registration and background checks.

It is an extremely limited "right" which was created by the Heller-McDonald decisions.

It is hard to find a federal judge more friendly to "gun rights" than Judge Sam Cummings of Lubbock, Texas. Judge Cummings achieved iconic status in the "gun rights" community in 1999 when, in U.S. v. Emerson, he became the first federal judge to rule that the Second Amendment confers an individual right to possess guns for private purposes. That ruling, literally, was unprecedented. Indeed Judge Cummings was sufficiently committed to a broad reading of the Second Amendment that, in the Emerson case, he dismissed the indictment of a very dangerous man for possession of a gun while subject to a restraining order. Timothy Joe Emerson had issued death threats against his estranged wife and her boyfriend, as well as pointing a Beretta pistol at his wife and their daughter during an argument. Judge Cummings, nevertheless, came down foursquare for Emerson's constitutional right to be armed.

What a law abiding citzen Mr.Emerson is!

Problem, Judge Cummings was careful to read the Supreme Court's Heller opinion and understand that it does nothing to support the gun lobby's constitutional extremism.Judge Cummings emphasized that the right recognized in Heller was, in his words "quite narrow," finding that "the Second Amendment does not confer a right that extends beyond the home." Judge Cummings cited the legion of other post-Heller rulings also confining Heller's scope to the possession and carrying of guns within the home.

Judge Cummings found no constitutional right for an 18-year-old to carry handguns in public according to the individual right created by Heller-McDonald. Indeed, he found no such right for anyone to do so according to the revised Second Amendment.

It is also worth noting that, four months ago, Judge Cummings rejected another NRA lawsuit and upheld the federal ban on gun dealer sales of handguns to persons under 21 years of ago, a restriction that obviously impacts the freedom of young people to have a gun inside the home for self-defense.

Wow, what is going on--I thought this was an individual right?

I'm sorry, but the only interpretation which makes any real historic or legal sense is the Civic Right interpretation which states that the Second Amendment applies only to Militia Activities.

But right now, it only means they can't ban guns.

No wonder the gun control crowd are silent about this travesty.

They are the real winners--not gun rights.

And saying it's an individual right is a meaningless statement.

15 comments:

  1. Heller and McDonald do go against Dog Gone's assertion that individuals have no right to own firearms. Forty states are shall issue or require no license at all to carry. There is work yet to do, but the trend is in the right direction.

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  2. By the way, I wonder if Justice Stephen Breyer will come to a new understanding now that he was attacked in his home by a man wielding a machete.

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  3. Hello Laci.

    You have lost the argument, yet you will not concede. You are a flame warrior who's caricature is quite similar to this one:

    http://redwing.hutman.net/~mreed/warriorshtm/palooka.htm

    Your knowledge of the 2nd Amend is quite superficial, and I am glad to have prodded you into actually reading Miller and Aymette. You have now familiarized yourself with the English Bill of Rights. Perhaps you have even familiarized yourself with Blackstone's Fifth Auxilary Right. Without having read those you were not even an amatuer, making silly mistakes about the actual ruling in Miller.

    You may now have even read some of Blackstone's Chapter the Thirteenth: Of the Military and Maritime States and discovered what a militia is and why a true militia can not be sent out of the country. You have been prodded by me to examine Perpich at depth and discovered what exactly the dual enlistment clause is and that there exists a militia independent of the National Guard authorized pursuant to 32 USC 109(c). Those militias do exist and are collective called the "State Guard"... they are true militias in every sense of the word.

    Yet your education in this area is woefully deficient. You must continue your education to include other instances of the duty of citizens to have arms. I suggest Blackstone's Book the First: Chapter the Ninth: Of Subordinate Magistrates... with special attention given to "posse comitatus" and "hue and cry" (topics directly addressed in the ratifying conventions in direct conjuction with the militia clauses.)

    With that said, I will explain in my next post why you have lost.

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  4. Hi Laci...

    The reason why you have lost is quite simple. It is quite easy to attack the broad individual rights thesis, to argue what the 2nd Amend isn't. This is because, and as I explained, the right-duty to arms are closely related. The right grew out of the duty. The right was actively encouraged by the crown so as to better serve the purposes of the duty. By encouraging and promoting this right it bolstered the participation and acceptance of the duty.

    Thus, you can easily cherry pick your material to point to militia purposes and mumble, militia, militia, militia all the while ignoring anything and everything which indicates a broad individual right. This is clear where you addressed Aymette, boldly pointing to "bear arms" while completely ignoring "keep arms". You did the same with the Congressional debates.

    First you promote Blackstone, then you ignore him. When obselence serves your purposes you employ it (cessat lex, et cessat lex) when it doesn't you ignore it. You employ a rule of statutory construction to deny that the "right of the people to keep and bear arms shall not be infringed" by seemingly importing a limitation from the preamble and stating that personal useage is not mentioned. Yet you ignore the rule regarding statutory construction of preambles which is that it is an aid to construction which neither limits or expands the operative provision and ignore thhe rule that rights are broadly construed...

    The rule of preambles is that when two competing interpretations are proferred you refer to the preamble to see which one better serves the purposes articulated... and this is exactly where you fail.

    We both agree on WHAT the purpose of the 2nd involves (even though you seem to resist that point of agreement by mumbeling militia militia militia). What we disagree upon is HOW the 2nd Amend achieves that stated purpose.

    I have articulated exactly how a broad individual right serves to protect and preserve the well regulated militia and have given specific examples of same in the 20th and 21st century, including the scenario in April 1917 where the feds totally destroyed the well regulated militia and sent them off to europe leaving the states defenseless. Such a fear being actually articulated in the debates in the ratifying conventions. Your response? Crickets.

    I prod you to articulate what your version of the 2nd actually protects. Finally after much prodding, you assert the absurd... That the 2nd creates an obligation on the feds to properly arm the militia!!!

    Excuse me? Apply your own rule of statutory construction. The feds are not even mentioned in the 2nd. I ask, how in the world can you create that out of nothing? Your response is telling... "you must look hard in some (unstated) books and study." LOL.

    I ask, "who has standing?" Your response: crickets."

    I ask whether such a theory has ever been litigated? You respond the 2nd is irrelevant since 1792.

    I point out that the militia still exists and that the NG was inadequately armed in 2003 requiring loved ones to purchase body armor on the private market and send them to the individual members of the NG. Your response? Crickets.

    Essentially you are arguing that the 2nd protects nothing. That there is no right whatsoever in the 2nd because a right without a remedy is no right at all. In doing so, you lose.

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    1. Look hard in some unstated books and study--that's the modus operandi of both Laci and Dog Gone: We're read the following, and even though it may or may not address the main point, we believe that you haven't read it, so we'll pretend that it's conclusive. We'll name a category of philosophy, as though the mere naming of it answers any questions. We'll say that consensus is the new origin of rights, but ignore evidence that consensus disagrees with us.

      And yet, the gun rights side makes errors in critical thinking. . .

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    2. Greg, the chronically dishonest commenter writes:
      Look hard in some unstated books and study--that's the modus operandi of both Laci and Dog Gone

      No. Wrong again. Points for being consistent, even if you are only consistently wrong.

      We are very good about providing our sources. You're just bad at reading. Note for example the link provided this morning to the CO bar web site, as just the most recent example.

      That you are poorly read and apparently incapable of competent research is YOUR problem, not ours.

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    3. Greg, you know what a book is don't you?

      It's something with a lot of paper with words written on them between two covers.

      A library is something which holds a lot of books.

      Do you have many libraries in Arkansas, or do they cost too much for the people?

      Don't want to pay too much in taxes--especially if it's gonna help people to think fer themselves.

      Seriously, I am a very good researcher if you haven't been able to tell.

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    4. Second try:

      Are you referring to my personal library, the library at the college where I teach, the library of the University of Arkansas, or the multiple public libraries in the area?

      If you want to cite a source, it's not enough just to give the title. You have to identify the page or passage that's relevant to the discussion. You also have to explain why you're using that source, since quotations don't stand alone, unless you're letting someone else do the writing for you.

      That's research and argument. That's what you and Dog Gone fail to do. You want us to do your work for you. That's a curious thing, since we're not on your side.

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  5. Kinda OT but thought you should see this one:

    Pastor's daughter accidentally shot at church

    CBS/AP) ST. PETERSBURG, Fla. - Authorities say the daughter of a pastor was accidentally shot in the head at a church in St. Petersburg.
    The Pinellas County Sheriff's Office was called to the Grace Connection Church Sunday at about 12:24 p.m. Sunday.

    Investigators say Moises Zambrana was showing his gun in a small closet to another church member - the victim's boyfriend, according to CBS affiliate WTSP - who was interested in buying a firearm. Zambrana reportedly took out the magazine of the Reuger 9mm weapon but did not know there was a bullet in the chamber. (Watch WTSP's report below.)

    The gun went off and fired through a wall, striking 20-year-old Hannah Kelley. She was transported to Bayfront Medical Center to undergo surgery and remained in critical condition late Sunday.

    "There is a big level of concern 'cause she may or may not survive. But we're all praying for her and, right now, I guess that's the best we can do," church member Tony Diehl told WTSP.

    Deputies said Zambrana has a permit to carry a concealed weapon.

    No charges have been filed.

    ----------------

    Another irresponsible CCW holder waltzing around with a loaded gun wreaking havoc on an innocent person's life. Brilliant.

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    1. Thanks SoBe, we're already on that one. But, I actually don't think it's that off topic either. This stuff is always the topic over here.

      Thanks.

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  6. To summarize, Lacy...

    The fatal weakness in you argument is not found in your arguments contending what the 2nd Amend IS NOT. You can easily cherry pick language from historical sources which implicate the militia duty and ignore the coresponding individual right. Any amateur can do that.

    The fatal weakness in your argument is found in your total inability to articulate a plausable explanation of what exactly the 2nd Amendment IS. What exactly is it that is protected, what would be a violation of same, who would have standing to assert a violation of same and how that EXACTLY serves to protect the well regulated militia from the abuses actually articulated by framers. Even your top secret formulation found hidden in some unstated books which requires the feds to adequately arm the militia fails on this score, as the feds always could call up the militia and send them out of state, leaving the state defenseless.

    That is why you fail.

    It has been fun Laci, but I had hoped for better. I will leave you now to your insults and degradations, as nothing further can be said. I was never under any illusion that you would acknowledge that I was correct. You are an idealoge who will never acknowledge the truth.

    Further, I am dissillusioned with the argumentive format of these blogs... I make a statement in one article and I am responded to in another. This creates confusion and chaos, which is not conducive to rational argument as one can totally ignore points previously made.

    So I say adieu... And to MikeB, thank you for your intelligent and well thought out responses. To dog gone, I also thank you. Your disagreements with me are inspired by a hope of a better world. I to hope for a better world, our means of achieving same differ, but I wish you well.

    Laci, you may be a bright lawyer in the areas of law in which you specialize. However, you would be cut to pieces in oral argument on the 2nd in front of SCOTUS. That is why I say you are an amateur. Study hard, read the history of the militia, the individual right in England, the writings of Tucker, Rawle and Story, but understand it all, and do not cherry pick bits from here and bits from there which merely support your partisan position. Accept it all, even those parts you do not like. Try to put it all into a unified theory. Then perhaps you will lose your amateur status.

    Goodbye all.

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    1. Leagle Eagle, I haven't seen you refute Laci so far.

      You have as Laci noted, danced around a lot of points, but you haven't refuted them at all, and I agree with Laci that you have in fact on occasion SUPPORTED Laci.

      Your accusation of cherry picking is not valid, and Laci is an honest and meticulous researcher. He was educated in the UK, including a law degree and actual legal experience in the UK; I think Laci has a better understanding of the militia, of rights in England, and how they apply and have devolved to their current status compared to your understanding.

      Until you can show that guns produce less violence, injury, threat and intimidation, fewer not more deaths, you aren't looking for a better world, you are part of the problems of this society.

      Just last night I was speaking with my co-blogger Penigma about how European regard our horrific gun violence incidents compared to their more civilized and peaceful societies. An armed culture where people use violence rather than the more temperate process of law enforcement and the courts to reduce violence is more primitive, more savage, and in no way BETTER. It most certainly is not a desideratum, it most certainly does not apply to a better world in any customary use of the term.

      It is a world where most people are LESS free because of your guns (that's the plural form of you/your, which Greg has a problem understanding). We are not safer, we are not more free, we are not better because of guns and gun culture. That is your myth, not fact; it is a tragic, terrible, ugly fantasy.

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  7. LegalEagle--How can I be losing the argument when you are helping to make my points?

    Hue and Cry, Posse Comitatus, and, since we are talking about archaic practises, hot trodd all relate to the calling of civilians aid by those charged with enforcing the law.

    But the problem with mentioning these practises is that they relate to community defence, which is in keeping with saying that the Second amendment protects the civic right.--not personal purposes.

    I would also add that British Military history demonstrates that the Militia was indeed called outside of the realm as there was no standing (i.e., professional) army prior to the 17th Century.

    In addition, you use the tactic that most argument losers do, divert the subject to something else--you failed to address any of the points in this post.

    I am sorry that my answers do not fit your world view, LegalEagle, but I did answer them.

    Actually, I think you would be cut to pieces in front of SCOTUS.

    You said that Blackstone was just as much US law a Locke, yet you try to use him in your arguments. He is not a resource on US militia law.

    You also keep saying that the militia is unimportant and community defence, yet you provide more civic purposes for the Second Amendment

    That is the right is related to the common defence and not personal defence, which you keep providing more and more information that backs up my assertion.

    No wonder it looks to you as if I am not on your side since you pretty much keep helping me make my agrument,

    And you also show that you don't really understand what I am saying.

    So, I think someone who can't think even if given time would fare well against someone who can think on his feet.

    Unless you intend on dazzling your opponents with your ignorance.

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    1. I should also add that hue and cry, posse comitatus, and Hot trodd are all archaic practises, there are now professional police forces which handle these duties.

      I will also add that there is a difference between common law posse comitatusa and US Federal law.

      But, I will thank legaleagle for helping me make my arguments.

      1) he has supported my arguments
      2) he really has no idea of what he is talking about since he has to use this throw the spaghetti on the wall style of argumentation and hope something sticks.

      Actual arguments before the SCOTUS are helped by the justices asking questions of the advocate and sticking to the point.

      Not diverting from the subject at hand.

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  8. "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."

    Laci- The First Amendment plainly does not protect the right to use the internet to lay your claims to the Second Amendment.
    I guess you would have to define plainly.

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