Wednesday, September 18, 2013

Reports of the demise of The Civic Right interpretation of the Second Amendment are wrong.

Justice William O. Douglas was on the court at the time of US v. Miller, which is noted at the end of that decision.  This is his explanation of that decision from his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

He also said in the same opinion that:
"There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police."

This is from John Hockenberry's interview with Justice Ruth Bader Ginsberg:
"My view of the 2nd Amendment is one based on history. The 2nd Amendment has a preamble about the need for a militia. Because there was a need to be at the ready, the right to keep and bear arms must be secured. Historically, the new government had no money to pay for an army, so they relied on the state militias, and the states required men to have certain weapons, and they specified in the law, what weapons these people had to keep in their home, so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the 2nd Amendment. But when we no longer need people to keep muskets in their home, then the 2nd Amendment has no function. And my answer would be, yes, the 2nd Amendment is outdated in the sense that its function has become obsolete. And in my view if the court had properly interpreted the 2nd Amendment, the court would have said that Amendment was very important when the nation was new, it gave a qualified right to keep and bear arms, but it was for one purpose only - and that was the purpose of having militiamen who were able to fight to preserve the nation."
From my own research, I have found these to be an accurate description of the law.  I should also add that Justice Stevens followed the Civic Right interpretation in his dissent to DC  v. Heller.

While you may question my legal qualifications, I know of other legal scholars with impeccable qualifications who do follow the civic right interpretation.

My question to you: why should I change my opinion about the civic right interpretation based upon the unsupported, or incorrectly based, opinions of people on the internet whose qualifications I do not know?

And even if you want to pull the rewritten Second Amendment from Heller-McDonald, there is no excuse for not enacting some form of gun control:
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


  1. Even the Hockenberry quote is not arguing for a civic interpretation. He is saying that it is an individual right of the people- just that it's not needed anymore. Then repeal it. Until it's repealed, it means the same thing that it did 222 years ago.

  2. And there is this new ruling.,0,576439.story

  3. "There is no excuse for not enacting some form of gun control"? Actually there's plenty of good reason. And your quotation is off point, since Scalia didn't require any gun control. He merely said that some may be permissible.

    But you've been insisting for a long time that the law is whatever the courts say it is. The Supreme Court has spoken. Why do you continue to resist?

  4. Justice Douglas's quote only addresses pistols and sawed off shotguns. Was his opinion that all people had the right to own other types of fire arms if they fit into the "useful for a militia" definition? Nothing was stated in the case that the man in question did not belong to a militia, so that does not seem to be an issue. Based on today's military standards, why would it not be acceptable for anyone to own a select fire fully automatic machine gun? Surely those are useful for a milita today right? Would the Miller decision outlaw such a weapon from being carried?

    1. Laci won't answer that. I have been asking him that question for over a year. He dodges it like a wrench being thrown at him.

    2. The 2nd amendment mentions nothing about types of weapons. And if you go by original intent means a right to own a gun, then you also have to accept that means a gun of the days the 2nd amendment was written. A flintlock. The 2nd amendment also does not mention a right to carry, or anything about ammunition, or other accessories, so they have no constitutional protection either.

    3. Jim, you're here using twenty-first century technology to advocate that we should be limited to eighteenth century technology. The irony is thick.

      The amendment names the right to keep and bear arms. The implication, given the history at the time of writing, was arms that individual gentlement owned, and bear means exactly what it appears to mean.

  5. The second civil rights says ARMS, not flintlocks, cannons or anything specific. Arms can be a sword even. Arms mean the firearms and everything surrounding it. "Well regulated" at the time of the writing meant WELL ARMED. That includes ammunition and any other accessories that make sure that they are well armed or "well regulated".

    I will go you one better. Since the people had the same arms that the regulars (military) carried at the time of the writing, there is nothing in the second civil right that prevents common folk today from keeping and bearing modern military weapons.

    In fact almost every weapon in the hands of the private citizen has a military background to it. The weapons of war. The 1911 was made for the military first then sold to civilians. The same exact design is sold to both military and civilians alike today. Antique military weapons like the Mosin Nagant Russian rifles are as common as cars here now and is a fine sporting rifle. The AR15(the AR does not stand for "assault rifle"), the Armalite Rifle design, was sold to Colt in 1959. Its been in civilian hands for 54 years. The military version, the M16 is the same but with select fire and full auto and can also be owned by civilians, if you have a lot of cash and go thru a huge government ball of crap to get it.

    I can go on and on Professor Jim, but do your own research as there is PLENTY of info out there. You just might learn something new.

    And since the rest of the world uses modern weapons, and the bad guys get hold of them too, why cripple the good guys defense with a flintlock. Reason with that Professor Jim. Since you said you carry (I doubt it tho), I bet its not a flintlock or even a black powder gun, but a modern one.

  6. So arms doesn't mean guns? Great, problem solved, no guns.

    1. Now who is being openly dishonest Jim.

      "Arms can be a sword even. Arms mean the firearms and everything surrounding it."

      Do you read or just gloss over.

      Come on Professor, speed reading is not your strong suit.

    2. I just cannot keep up with your lies, hypocrisy, and hate aimed at me, apparently because I am a gun owner who knows you NRA guys are gun loons.

    3. Oh please Professor, either you don't read or don't comprehend and are now running out of excuses. I have been courteous to you, haven't been hateful or used any foul language to you or to anyone else on here for that matter. I offered you to discuss subjects but receive either nothing or just spiteful remarks.

      You asked a question of me and I responded in kind with a true history and you just become a snide person for doing so.

      Of this is all your going to offer then there is no further reason to respond to you at all.

    4. "I have been courteous to you"

      Cram that lie up your ass