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.
