On the other hand, I’m rather amazed at the people who are praising the Heller-McDonald decisions. For example, The Brady Organisation which will happily point out that the decision doesn’t preclude reasonable regulations.
In fact, the Second Amendment protects a civic right, that is it is supposed to ensure that the Article I, Section 8, clause 16 militia remains armed and has feck all to do with “”gun rights”. But, you small minded fecks need to get it through your thick skulls while that concept means the Second Amendment doesn’t preclude a gun ban: It also means that Kennesaw Georgia can force people to buy a gun (although, that sort of law could run afoul of the First Amendment).
The Civic right interpretation was the law of the land up until 26 June 2008. And, quite frankly, you can argue that it still remains the law of the land since the Second Amendment has not been properly amended, thus the Supreme Court acted ultra vires in producing this decision.
But, that’s not my point. My point is that Walter E. Dellinger argued worse than any first year law student despite his background, although one of the themes in this blog is that the US legal education system sucks. Still, you’d think that someone of Dellinger’s experience would pound in:
Stare decisis: Dellinger had the accepted interpretation of United States v. Miller, 307 U.S. 174 (1939) which he mentioned as:
The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.Unfortunately, Dellinger appears to have been poorly studied in the history of the Second Amendment and its relationship to Standing Army question. Additionally, He was unaware of Shays’ Rebellion, which were the farmers who were on the framers’ minds: not the ones of dime novel ilk that were on Justice Kennedy’s.
There are enough quotations which show that the issue related to that of the Article I, Section 8, clause 16 militia to have sunk any suggestion that there was a private right.
The other aspect which would have strenghtened Dellinger’s argument was the rule of constutitonal interpretation that I keep hammering upon:
None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.
And while we are at it: nowhere in the Second Amendment can one find the words which allows for “the people” to own arms for personal defence. Again this goes to the rule of construction that no phrase is without meaning. Expressio unius est exclusio alterius’ (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute.
Self-defence is not mentioned in the Second Amendment (or the US Constitution).
Justice Stevens’s dissents in Both Heller and McDonald pointed out that was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which are present in the Declarations of Rights of Pennsylvania and Vermont. The fact that these decisions were 5-4 means that the Civic right interpretation isn’t dead, just dormant.
But the other side was just as lame as Alan Gura’s argument demonstrates:
MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.Now, if you are going to say that the first clause has no effect, which the Five fools do, then one is left with:
JUSTICE KENNEDY: That are not appropriate to –
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.
the right of the People to keep and bear arms shall not be infringed.It is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. Or to quote the RKBA folk:
What don’t you understand about “Shall not be infringed”.Of course, the court’s construction and interpretation, again violates the principle about the use of the word “shall” since in this context the phrase is now discretionary.
We can get into the fix is in part of this in that the Court could have made Gura and his ilk look like idiots since they construct the phrase to be both discretionary and the first clause to be without effect. So, not only are they asking for Miller to be overturned, they are also asking that long standing rules of Constitutional interpretation be ignored.
Anyway, by ignoring the language “A well regulated militia being necessary to the security of a free State”, we should now have a right which allows for the personal ownership of weapons of mass destruction: let alone machineguns. Any Justice worth their salt should have brought this up (Sorry, that includes you, Justice Stevens).
The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is going on here and how they have been the ones who were fecked. That’s slightly less so from the “antis”: although I’m sure we would be hearing about it if they felt truly fecked over . The Heller-McDonald Supreme court decisions talk of “presumptively lawful regulatory measures”, specifically name some, and then declare the list “is not exhaustive”.
In case you missed it or are too fecking stupid to have figured out what happened–here is 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 54-5Which 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 64From 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 39-40The 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?
Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “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.’”
We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.
True supporters of the Constitution should be appalled at the Heller-McDonald decisions for what it did to the Second Amendment. The even more amusing part is that Scalia has trashed everything that he claimed to believe in by putting his name to this piece of shit, although one can truly question what type of biased hack he is to have not recused himself from this decision. Better yet, one must question what he is doing as a Supreme Court Justice as his presence on the bench does nothing to dignify the institution.
One must decide the law based upon the law, not one’s personal biases.
Anyway, the fix is in and everybody got fecked: especially the Constitution.