Friday, August 12, 2011

A nice critique of DC v. Heller

Can be found here

It's called A Caustic Critique of District of Columbia v Heller: An Extreme Makeover of the Second Amendment

And it's well worth a read.

This is the author's bio:
In an article about the Second Amendment, an author should disclose his history in owning and using firearms. The author of this article was an officer in the United States Marine Corps on active duty from May, 1963 until September, 1969. In October, 1966 he became a Naval Aviator. He flew the F4B and F4J Phantom II aircraft in Marine Fighter Attack Squadron 323 at Chu Lai, Vietnam. During his Marine Corps service, he fired virtually every weapon in the Marine Corp’s arsenal. He is an expert marksman, both with the .45 caliber semi-automatic pistol, the .38 caliber Smith & Wesson revolver, the M1 Garand and the M14 rifles. In civilian life, post-Marine Corps service, the author has possessed and today possesses a semi-automatic pistol for defense of family and for target practice. The author is a member of the National Rifle Association.

The author has not received compensation from any source for writing this article. No
organization of which the author is a member has reviewed this article.


  1. I know a Marine graduate of the Naval Academy that also switched to being a Naval aviator and has been a shooting competitor for years but, sadly, is not an NRA member. And he will tell you the exact opposite.

  2. BUt is he a lawyer?

    What is his basis for saying what he says? "Because"?

  3. FWM, if you are going to make an argument you need to provide a bais for that argument. Preferably one that stands scrutiny.

    As I said, what is your friend's qualifications and reasoning. He would need to provide a legal and factual basis for his opinion.

    As I said, the individual right interpretation does not stand scrutiny.

    In fact, FWM, provide any argument for the Individual right and I will shoot it down.

  4. Laci - you seem to think that your opinion (and other opinions you agree with) on how to interpret the 2nd Amendment has some legal bearing greater than that of the Supreme Court. You also seem to think that it matters what past courts have ruled or dissenters have opinioned. The only thing that matters is what the current interpretation is. Sure it may be overturned by a future court, but that is not the reality of today is it?

    Justice Antonin Scalia in writing for the majority in District of Columbia v. Heller:

    Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.

    The latest ruling on this from the Supreme Court is that the 2nd Amendment carries an individual right. What other argument is needed?

  5. Jim, are you intelligent enough to read my material and UNDERSTAND it?

    In paticular, my question to YOU?

    Do you care about legal method and how the law works?

    Or does it only matter to you if the court agrees with you?

    The preamble of the US Constitution begins with the words "we the people", are you implying that each and every US citizen was present when the Constitution was drafted?

    As opposed to the closed door, private sessions in which it was actually drafted?

    The centerpiece of your argument argument is the insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendment s. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment —“the term unambiguously refers to all members of the political community, not an unspecified subset.” The Supreme Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendment's; when it finally drills down on the substantive meaning of the Second Amendment , the Court limits the protected class to “law-abiding, responsible citizens”. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.

    The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment , no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

    end part I

  6. begin part II

    Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

    As used in the Fourth Amendment , “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment . For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment . Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment , the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendment s are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment , the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.

    As for the comment that the Second Amendment is an individual right is nebulous. The Second Amendment 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.

    Quite frankly, Jim, you don't have the legal knowse to argue with me. In fact,you are way out of my league.

    But you and your ilk are happy in a world where judges can forget precedent and legal method, especially if the result appears to be something that you favour.

    But, Jim, you are too stupid to realise that the Heller-McDonald is an extremely limited right.

    Not to mention it is one which does not stand legal and historic scrutiny.

  7. Furthermore, Jim, I only find Justice Stevens' dissenting opinion worthy of praise for its proper legal interpretation of the Second Amendment.

    Breyer's opinion is just as bad as Scalia's in terms of extraneous bullshit.

    Personally, Jim, you are not bright enough to try and debate this issue with me since it is painfully obvious that you are ignorant of legal method and Constitutional law.

  8. Laci - i am not trying to debate the ruling with you. I understand that the Supreme Court has ruled and that is the law of the land until another ruling or law says otherwise. Such has it been and such shall it always be as long as we operate under the current Constitution.

    You seem to think that what you think matters. It doesn't and it never will short of you being nominated to the Supreme Court. Sorry to burst your bubble. Feel free to keep quoting from old rulings as to how the Court should have ruled. It won't change a thing.

  9. Laci,

    You linked to an article then went out of your way to highlight nothing of the article but instead to highlight the author's bio as if that made the argument itself. My response was the same.

    Incidentally, I didn't make that up. The person I mentioned is my brother-in-law. And no, he is not a lawyer, he is actually a rocket scientist.

  10. Jim, I once nominated Laci to take over the ATF. FWM remembers.

    About this post, Laci, I thank you. Myself, not being a lawyer and not possissing the requisite vocabulary, I call this the "bastardization" of the 2nd Amendment.

    I think we're on the same page.

  11. "It doesn't and it never will short of you being nominated to the Supreme Court."

    Laci is not a civil right's attorney. Its not her area of expertise. She can rehash old cases and its just fine as it makes no difference. Everyone else has moved onto scrutiny, carry in public, and common usage. I take the rants as entertaining; nothing more.

  12. mike - I had no idea that you were Obama in disguise... what's that? You are not the president? Then who really cares who you nominated to lead the ATF? All of you seem to have an overly inflated opinion on how much weight you thoughts and feelings carry.