Washington Post
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “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.”
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
Well, if Stevens is admitting that "fixing" the Second Amendment (making it of no use to the American people) would require explicit language limiting its application to only those who serve in a militia, he is obviously admitting that the Second Amendment that does exist imposes no such limit.
ReplyDeleteIn other words, he now acknowledges that the Second Amendment, as written, protects the fundamental human right of the individual to keep and bear arms.
Go forth and spread that wisdom far, wide, and loudly, Stevens.
Perfect example of dishonest twisting to make a gotcha false point.
DeleteMeaning you got nothin', Bravely Anonymous.
DeleteNo, meaning you twisted (lied) about what he said.
DeleteI'll leave the lying to you, Bravely Anonymous. Not because you're good at it--you're quite comically incapable of lying believably--but merely because lying isn't my style, and because I'm not the one whose beliefs are threatened by the truth.
DeleteKurt, anonymous is exactly right about your bullshit twisting to make a gotcha point. What the former Justice did is REPEAT the first four words because you genius gun nuts keep pretending to not understand what they mean.
DeleteThe first four words say precisely zero about protection of the right to keep and bear arms being limited to a militia.
DeleteOnce again: You. Fail. As does Bravely Anonymous.
Not a new experience for any of us.
It's pretty pitiful if you can't tell the difference in the meaning of the current phrase mentioning the militia and the one proposed by Stevens.
DeleteWe understand exactly what those words mean. The framers thought that having people ready to join a militia was of sufficient importance to warrant enumerating for special protection a right that we the people already possessed.
DeleteExactly right Greg. When the right belongs to the people outside of service, the pool of which to draw the militia from in time of need is larger, more prepared, and well regulated, because they grew up in the gun culture. Exactly as the entire amendment intended it. How crappy is your militia going to be when the first time anyone has ever held a gun was at the first emergency muster.
DeleteYou guys are twisting yourselves into ever new territory. Now, are we to imagine that it WASN'T every able bodied male but only SOME of them to be chosen from the larger group all of which had their own guns?
DeleteMikeb, mobilization never calls up every available citizen for service. The country would collapse if it did. The idea of the Second Amendment was to encourage people to be ready. But it built on a right that it recognized as already existing.
DeleteThe active militia is a subset of the entire militia body.
DeleteNot when the amendment was written, furthering the very sensible ideas of anachronism and meaninglessness.
DeletePlease, show us where TS's statement was wrong when he said that the active militia was a subset of the entire militia body.
DeleteIf you rewrite the amendment now with the above language, you can't possibly claim the militia is anachronistic.
DeleteBut your falling back on your "it doesn't count anymore" argument, which is entirely different than discussing what the amendment means as written.
Too bad for you, Mikeb, the Supreme Court has said otherwise, and most states and Congress are on my side.
DeleteNot really, TS. I believe there is no such thing as a militia today as it was understood in the 18th century, which makes the 2A meaningless today. The repetition suggested in this post doesn't change my view but it might shut up some of you fanatics if it were adopted.
DeleteIf you rewrite the 2A in 2014 with language specifically mentioning service in the militia, you can't possibly claim the militia isn't relevant in 2014. I completely disagree with your idea that one can claim part of the constitution to be obsolete without repealing or changing it, but even if that were true, you can't claim it to be obsolete the moment the change is ratified.
DeleteMikeb:
Delete1. The right exists prior and superior to the Constitution.
2. The Second Amendment protects a right that belong to all the people, not only something limited to the militia.
3. Stevens's nonsense will not be adopted, but if it were, we would not stop our advocacy.
How can a federal right exist before the federal constitution was even written?
DeleteNot a Federal Right, Moron. A Human right.
DeleteObviously a firm believer that soldiers should be armed while on base.
ReplyDeleteI doubt that. He probably believes like I do that arming people whether civilian or military is a matter of need and qualifications - not rights.
DeleteFortunately, Mikeb, neither one of you has much say in this matter.
DeleteBut he is wanting to clearly define a right belonging to soldiers while serving, but in the classic mold of gun control, not really.
DeleteWell, now that we changed it from people to soldiers, it doesn't really mean soldiers have a right to keep and bear arms...
Stevens and Burger are the ones committing fraud through their abuse of the actual history and precedent.
ReplyDeleteAs the article says, for 200 years the right was limited and not read as an individual right. To deny that is to show your ignorance.
DeleteHe's correct about actual history. For over 200 years the Supreme Court decided the second amendment meant exactly what was printed in the article. That's 200 years of Supreme Court decisions that prove you wrong.
DeletePlease, Anonymous, Show us all of those decisions over 200 years where the Supreme Court repeatedly ruled that way.
DeletePro Tip:
You ain't gonna find them because they DON'T Exist. The Court was never asked to rule that way. They weren't even asked to rule on it at all during the bulk of that time. Other courts weren't asked to rule that way either. Even the Miller case didn't ask them to rule that way, in spite of Laci's contention to the contrary.
The article may say that was the precedent for 200 years, and Stevens may claim the same, but they're wrong. The cases that DID get decided in that time period all assumed an individual right.
But go ahead--try to prove me wrong. Reading some old case law might do you good.
Simon, I think I'll take the word of a former Justice of the Supreme Court, or two, over yours.
DeleteSo are you and Stevens eventually going to get around to providing an example--just one of such a case during those 200 years?
DeleteJust one. One.
At the risk of sounding like Geordi, Don't just take my word for it, check it out for yourself. Actually read the cases. Prove me wrong if you can, but don't give me this silly appeal to authority and to precedent that doesn't exist.
Delete...and the active judges on the Supreme Court.
DeleteWhat he actually said was, "federal judges uniformly understood."
DeleteI would imagine he elaborates on this in his book. But, you guys know better, right?
Well I guess he was wrong about that, wasn't he? Because when it came time to rule on that question, not only was there no uniform understanding, but the majority disagreed with Stevens.
DeleteThere isn't that much jurisprudence on the 2nd Amendment, so it's pretty easy for those of us inerested in it to have read all of the federal cases dealing with it, as well as many of the state cases dealing with it and with equivalent state Constitutional provisions.
DeleteThe idea of the collective right is not to be found--as far as possible from Stevens' claim that it was the uniformly understood interpretation.
Go ahead and look the cases up. You could have read them all over the weekend--you could make a big dent tonight. Prove me wrong.
Yeah, on a very conservative Court, a majority of 1.
DeleteA double digit percentage majority.
DeleteOh, so what he meant was "liberal gun hating federal judges uniformly understood..."
DeleteThe Second Amendment doesn't need fixing, since it's language is clear, except to gun control advocates. But the good news is that Stevens is retired, so he won't be threatening or rights anymore. And there are plenty of legal scholars who disagree with him.
ReplyDeleteIt's language only got clear to you a few years ago. For more than 200 years the right was limited and not accepted as an individual right.
DeleteThanks for showing your ignorance though. Nice to see you are consistent.
You should be hoping for a stand alone gun rights amendment, or the law will find the second amendment obsolete and all that will be needed is a liberal court.
DeleteRead the cases from that time period, Anonymous. They don't say what you think they say.
DeleteAnon, do you really want to go with the "it's been the law for a long time" argument? One has but to use the same argument for othe recent Supreme Court cases to show this isn't a good argument. For example, would that have been a credible argument in Brown vs Board of Education? How about the very possible upcoming decision regarding gay marriage?
DeleteWhile precedent is important in court decisions, correcting a bad decision is completely acceptable, as was done with Heller.
Good point, ss. I don't think Simon will like it, though, since he's actually disputing the entire 200-year history thing completely. But, what you say makes perfect sense. What's we need the test of time on is the question of whether this represents a "fraud" and a "bastardization, as I like to call it, or an evolution in the understanding of the law. Time will tell.
DeleteSSG is correct that it's appropriate to reverse precedent when precedent is wrong, but you don't have this clear cut 200 year history that you think we have.
DeleteOriginally, you have discussions of the right to arms in the Federalist Papers which clearly indicate personal rights to personal arms for keeping the government in check. This idea seems to have been pretty common, but we don't get any federal precedent establishing it--basically because nobody tried to ban guns and challenge the notion.
Only after the Civil War, when the Supreme Court was eviscerating the Reconstruction Amendments to allow Jim Crow to stay in place, do we begin to actually get a little bit of jurisprudence on the Second Amendment.
Cases like Cruikshank and Presser were bad decisions, but even they acknowledged a right to arms. Yes, Cruikshank has the one sentence Laci likes to take out of context, but in context, it doesn't mean what he proffers it to mean. Either way, Presser, just a couple years later, found a personal right to arms rather than a collective right or a right to form or join a militia.
The problem with these cases is that while they acknowledged the existence of the right, they found ways to not enforce it, shielding the states from its effect. Of course, this was before Mapp v. Ohio--No rights had been incorporated against actors other than the Federal government.
Other state decisions at this time, such as Aymette v. Tennessee, follow the same pattern of finding individual rights, or just assuming them and working from there, and being decided based on them.
We've beat the dead horse over and over on Miller and the subsequent decisions, so to summarize, they don't change the law on this matter either. Miller was decided an the basis of the gun in question not being suitable for militia use, not on the idea that Miller had no personal right.
But please, feel free to go back through the law and see if you can find something I've somehow missed. Try to prove your position. We'll wait.
DeleteWe don't need time to recognize that individual rights are important. We have enough examples of how collectivizing rights is bad for the people.
DeleteSimon, I find it extremely tedious and slightly humorous the way you rehash the bullshit that goes around on the pro-gun blogs and pretend to be some kind of legal scholar. And, of course, Greg and Kurt are right there with you. Legal experts, all.
DeleteWhere to start with this garbage.
DeleteThe Federalist papers were not law. If that's your reasoning for saying the right existed before the Constitution, you are wrong and pitifully so. We drew many of our legal theories and laws from many sources, but they were not law. The Magna Carta, the Bible, the ancient laws of the Greeks and the Romans, the laws of our early colonies, even our Declaration of Independence, stated legal theories none of which became law until new laws for a new land were written.
Collectivizing rights is exactly what the Constitution does. It guarantees rights for all (collective) that are citizens.
Most laws (including constitutional laws) don't get defined until there is a judicial process as Holmes and his fellow justices did with free speech.
YOU may regard the interpretation as a wrong, but that interpretation stood for well over 200 years. So that's your opinion, not the fact of the law during that period.
I don't have to go over 200 years of cases (as you did not) Stevens synopsis is accurate and reflects the truth of the matter.
Look at all this irrational, untruthful bickering. Why not eliminate all this and have a stand alone unambiguous law?
It's amazing you continue to compare human rights with gun rights. Earning the moniker gun loons. Blacks were fighting for their human rights that did not exist in law. Do we really have to fight the Civil War over again? Federal rights trump States rights, as it should be.
The Court has now established individual gun rights, but not until now, more than 200 years after the Constitution was ratified. That opened the gates of carry and all sorts of businesses starting putting up "no guns allowed" signs because they were advised that would meet the requirements of the law and keep guns off their property. That will get further adjudication, but any business, or individual property owner should have a right to ban guns on their property.
It's amazing you pick and choose cases that supposedly show the wrong of a law, in law. Of course, that's what the judicial process is all about. It reflects the thinking of the individuals making those judicial decisions at the time. At the time those people thought slavery was just fine. Thank God we have progressed from that barbaric thinking. When Scalia says the Constitution is not supposed to be changed from the interpretation of the original founders, he is nuts, and the founders would call him nuts. That's why they had an amendment process. Seems they were smarter than Scalia, no surprise.
The only reason you guys say one clause does not define the other clause, is because you don't want it to, sorry, you don't get to make that decision only the court can. And if you disagree with one of their decisions, join the club. But as citizens you don't have a right to break a law, you have an obligation to change the law through the process given within our representative process. When you refuse to do that, then you can be called outside the law, or criminal.
MLK fought to change the law from a prison cell, because he was following the law. At that time the law said what he was doing was a crime. His getting arrested made the law get overturned by a higher court.
Snowden runs off for cover from our laws to some dictator and you guys call him a hero. If he had any convictions for our laws he would have stayed and fought, even if that fight had to made from a jail cell. As far as I'm concerned, he is a coward that ran away, to a dictator enemy no less.
Anon, I'm just fine with gun control advocates attempting to amend the Constitution, the instructions are right there for all to see. Go for it, I really want to. Keep in mind however, that you might not like the result. The requirements to amend the constitution have a high standard to meet, as it should considering the long term effects those amendments can have.
DeleteHowever, we also have the Supreme Court to take care of interpretation for legal challenges. The most recent one, that would be Heller I believe is the one currently in force. And that decision has already had some far reaching effects. Illinois becoming a shall issue state, and potentially affecting two gun control enclaves known as Hawaii and California.
Anonymous, you're clearly a collectivist, but rights aren't created by law. It's the duty of law to defend the rights that we already have. The Constitution protects the rights of each one of us as individuals. We don't have a group right to speak. We each have a right to say what we choose. We also have a right as individual to own and carry firearms.
DeleteAnon--I didn't cite the federalist papers as law. I cited them for an indication of what people thought at the time. I then said that we didn't get precedent for a very long time because no cases came up--you know, what you claimed to be teaching me that I had missed.
DeleteIf you are going to open with this much dishonesty and twisting of my words, I don't see much reason to read the rest..
Mike,
DeleteI'm not rehashing anything I've read on other blogs. I'm summarizing the actual cases which I have researched and read while in Law School.
As for your mention of the others, if they take the time to read the cases, they'll be just as able to comment on them as anyone else--this isn't a complicated area like tax law, or even some aspects of torts or contracts that have become minefields for people without extra training.
I challenge you again: read the cases--both the ones I mentioned and any others you can find, and prove me wrong. If I'm so wrong, that should be easy.
SS,
DeleteSince I'm not a gun control advocate, I won't bother, but thanks for lying about me. In fact my idea of having a stand alone law to end the debat and have a clear law, is a pro gun stance.
Simon,
DeleteI said "if" and it's your side that claims there was a right before the Constitution was even written, see below comment. What you presented was defense of that bogus idea. Dishonesty and twisting of words is what YOU do.
Nothing I said even touched on the preexistence of the right--my statements were merely limited to what was said about the anticipated Amendment by the people pushing for ratification of the Constitution and then moving on, for the bulk of it, to discussing the actual precedent in the courts--precedent which contradicts your, Mikeb's, and former Justice Stevens' comments.
DeleteI'm still waiting for you or Mikeb to address what I said and actually try to produce any precedent for the claim that the right mentioned in the Amendment was limited to the militia, was a collective right, or was a right to join the militia as Laci sometimes claims.
"Since I'm not a gun control advocate, I won't bother, but thanks for lying about me"
DeleteAnon, if I mistook you inaccurately for a gun control advocate, you by all mean have my sincerest apologies. Keep in mind though that saying someone is lying suggests some knows what the truth is and says something different in order to deceive.
In this case, I'll have to just say that if I'm mistaken its because that in my time here, I think you would be the first non gun control advocate in my memory to use the term "gun loon" or any of its other variations as a label or term when referring to gun rights advocates.
You also overtly distance yourself from those that would be termed gun rights advocates by using the term "you guys", when you aren't calling us gun loons.
Again, if I'm incorrect, then you have my apologies.
Simon,
DeleteYou were the one who choose to use the example of the Federalist papers to prove a right existed before the Constitution was written. Not my fault if your example is wrong. You guys just insist on saying anything is a right before before the law identifies it as a right. Go ahead, and see how far you get in a court of law with that delusion.
And again, you're skipping the main point to go after a point I wasn't even making in the comment in question.
DeleteTroll much, anon?
DeleteSimon, I think it was on this thread that I heard for the first time that you're a lawyer - first time I noticed it anyway. That led me to guess that you are The Tennessean. I would take back that sarcastic comment above about your getting legal ideas from pro gun blogs. I didn't realize to whom I was talking.
DeleteMike,
DeleteNot a problem--you didn't have a way of knowing til then. I didn't think anything of the remark other than, "Well, let's correct that notion." Other than that, I let the sarcasm bounce off.
My challenge still stands: Please, go ahead and look into the precedent--if you think you can disprove what I said, post it (maybe in a new post since this is already dropping far back). I have no problem in looking at the precedent and seeing what's there--good or bad. If you do, you'll see that what's there is thin and doesn't match what Stevens said.
This is a hypothesis that is fraught with danger, so its really no surprise that someone with politically liberal views would suggest it. But, what could possibly go wrong? Lets look.
ReplyDeleteIf we're to go with Stevens' description of his opinion of why the second amendment was adopted, that would mean that the militia would have access to any weapons on the market to oppose the unstoppable might of Laci's favorite US military. And since its supposed to be a potential counter to a federal standing army, there cant be any federalization of the militia to enforce its will. Could have made things a bit messier in Alabama in 1963.
And then of course we even come to the question as to whether militias are limited to state governments. How about private militias? Plus, the only way to enact such a change is to amend the constitution. It might not end up the exact way Stevens or anyone else might like it to be after it gets done.
That federalization of the militia, which is already anathema to good Constitutional government, would be even farther out of bounds if Laci's interpretations were correct. Of course, that is if he applied his desired standard consistently.
DeleteNo bets for that.
I think I'll get an article out of Steven's tacit admission that the protections provided by the Second Amendment, as written, are not limited to those serving in a militia. That's actually kind of a big deal. But should that be an Examiner article, or one for JPFO?
ReplyDeleteDecisions, decisions.
Why not both?
Delete"Anon, do you really want to go with the "it's been the law for a long time" argument?"
ReplyDeleteYes, the second amendment was original to the Constitution, so that makes that law well over 200 years old.
There goes the delusional GC saying it was a right before the Constitution was written. Blacks had no rights in law before those rights were written in law. Again GC proves his ignorance.
I wonder how the individual right was finally decided just a few years ago, 250 years after the second amendment was written, if, according to you gun loons it was established law?
There goes the delusional GC saying it was a right before the Constitution was written.
DeleteIf Greg is "delusional," Bravely Anonymous, then so has been the Supreme Court, since 1876, with the Cruikshank decision, later cited in both the Heller and McDonald decisions. From Heller (my emphasis added):
We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.
Blacks had rights before the Civil War. Those rights were being violated, but that does not negate their rights. That's my point. Our rights are not created by the law.
DeleteI said BEFORE the Constitution was written, because that's what GC said and he is wrong. Then you quote something that was 100 years after the Constitution was written. By now.
DeleteThen you quote something that was 100 years after the Constitution was written.
DeleteYo--nitwit. What I quoted from "100 years after the Constitution was written" said that the right codified in the Second Amendment is a pre-existing right, and "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."
You are not at all good at this.
Yes, Anonymous, blacks didn't have any rights respected, acknowledged, or codified in the law at one time. That doesn't change whether or not they had inherent rights as human beings. If you want to claim that there are no inherent rights as human beings, whether respected by law or not, go right ahead. Of course, to be consistent, you will have to accept the moral rectitude of slavery during that time, the propriety of the Dred Scott decision until it was overturned, and the notion that Nazi Germany didn't violate the rights of anyone it killed in the Holocaust since, by law, they didn't have any rights.
DeleteYou don't seem to be able to make a difference between what you think is a right and what is actually a right, or what is law and what is not law. This example of what is bad law, is getting old and I already explained my view. But keep lying, it makes my opinion that much more correct than yours.
DeleteKurt,
DeleteI know you don't understand the difference between law and not law being you are not a law abiding citizen, by your own words.
And Anon completely misses, or sees and ignores, that there can be a moral, metaphysical set of human rights that should be protected by law--that good laws respect and codify these as legal rights and bad laws don't.
DeleteI'm guessing its more along the lines of ignoring the fact just to be contentious since he talked about "bad laws" but neglected to say what made them bad--doing so might have required admitting the existence of human rights as a real thing apart from the law.
Anonymous, explain to us what makes the difference between an actual right and what someone thinks is a right. You seem to think that our rights are a smaller list than we enumerate, but you don't offer any list of your own, nor do you ever state a position. How about growing some courage and taking a stand?
DeleteYour "side" keeps making these ridiculous comparisons and statements that something is law when it's not. You lose and then keep crying your original false statements. Laughable.
Delete