Justice Stevens - bye bye to the 2nd as we know it.

G

Glenn E. Meyer

New member
http://www.washingtonpost.com/opini...8fa-11e3-96ae-f2c36d2b1245_story.html?hpid=z2

The Justice basically says our interpretation of the 2nd is baloney. He echoes a point that I made - Scalia, the gun rights genius to some, really left open myriad ways to control guns. Sorry to some who claimed Scalia was a wily old bird laying the ground work for new pro gun decisions.

He proposes a new 2nd that removes all gun rights:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
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I can see why some were very reluctant to take gun cases to the SCOTUS, we could have had 4 to 5 removing the constitutional protection.

I also think we cannot think that all the cases now brewing will lead to decisions that will produce a golden age of gun rights.
 
Ok. So, a retired judge writes a book and advocates a number of fundimental changes to the basic workings of the country. Incl the above change to the wording of the 2nd

Im not seeing this as an event. All gun owners understand the thought process of a large portion of the politicians and judges. Nothing new here

What is the actual legal process for actually changing the wording of the bill of rights? I cant imagine that being done without the masses agreeing

Or could this be done with a sweep of the pen?
 
What is the actual legal process for actually changing the wording of the bill of rights? I cant imagine that being done without the masses agreeing

Or could this be done with a sweep of the pen?
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The wording of the BoR can not be changed. A new amendment would need to be passed. The process for which is outlined in the Constitution.

You should read it. (Not being a jerk, everyone should read it)
 
There is a well defined mechanism for amending the Constitution. Civics class - anyone?

Is it likely - probably not.

It is useful to see the thinking of court members. Remember that slim majorities can institute major changes. That's why it counts to see how present and past members view the issue.

Recall that Justice Berger - a conservative thought the 2nd was baloney.

We forget that many progun folks thought that Scotus cases were a terrible risk. We just made it this time.
 
I don't see the hysteria.

The militia has been defined as every able-bodied person, so we're all serving in the militia all the time anyways.

From the Heller decision, quoting Miller:

2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .”

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources.
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Ergo, I can haz my full-auto w/suppressor right now, according to Stevens.
 
a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources.
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Does that mean the 2nd amendment doesn't apply to women because they can't be a part of the militia?
 
I agree with speedracer...

So then I just need to join my state/county/local/neighborhood militia, and then I get to have all the Class3 stuff I want because it's for duty... and we all know that the militia is always on duty, so I'd need to have instant access to it, not only in my home, but to carry it around with me at all times.

Heck, we could all probably get the state/county/whatever to start paying for our ammo in order to train!
 
speedrrracer said:
...The militia has been defined as every able-bodied person, so we're all serving in the militia all the time anyways...
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SamNavy said:
...So then I just need to join my state/county/local/neighborhood militia, and then I get to have all the Class3 stuff I want because it's for duty... and we all know that the militia is always on duty,...
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I wouldn't count on it. But give it a try and let us know how it works out.
 
Ergo, I can haz my full-auto w/suppressor right now, according to Stevens.
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So, no worries, because the 2A applies to... oh... 15, 20% of the population?

Only anyone too young, too old, too infirmed, too female need not apply?
 
As near as I can tell it's not "all able-bodied men". 10 U.S. Code § 311 has an age limitation of 17-45, limit it to men who are, or have declared an intention to become a US citizen, and females who are citizens (but not specifically including those who have declared an intention to become one like the men) AND in the National Guard.


Apparently, a woman who has declared her intention to become a citizen, and joins the Guard as a permanent resident isn't in the Militia of the United States. While it's probably between hard and impossible to find such a person, I find the loophole entertaining.
 
Ergo, I can haz my full-auto w/suppressor right now, according to Stevens.
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Only if Congress determines that all of us who "qualify" running around between call-ups that never happen are currently "serving" in the militia. You did notice that bolded add-on right? He limited it to militia WHEN serving.
 
"Well regulated militia" could also mean members would have to store all their privately purchased firearms in the local National Guard armory, etc. So being a member of the militia means nothing when it comes to gun rights.
 
I share Glenn's view of Scalia's decision in Heller. I'm not sure I agree with Glenn on the motive -- in fact, I don't know if Glenn expressed a motive. I sort of think that Scalia wrote his majority decision the way he did because he needed to keep Kennedy on the side of pro-2A. That said, the verbiage declaring all existing anti-gun laws a "presumptively legal" and then stating that the RKBA is subject to "reasonable" regulation (it does NOT say that in the 2A) did not do us, the 2A, or the RKBA any favors.

Thus, as a consequence of Scalia not being able to interpret "shall not be infringed" to mean "shall not be infringed," we are now stuck with "reasonable regulation" and years and years of court cases to determine what's "reasonable" and what's not.
 
There were two problems in Heller. The first problem is that you needed to get five votes. I am not so sure that Justice Kennedy was the swing vote for that matter. In any case, you had to write an opinion that was as restrictive as that fifth Justice wanted it to be - or at least could be legitimately read that way (although it perhaps could be read other ways as well).

The second problem is that even with a well-planned attack, you are going to have 100 Frank Millers for every Dick Heller or Otis McDonald. Giving the lower courts an easy way to dispose of those Miller cases - a way that in fact encourages those lower courts to dispose of those cases offhandedly without doing a proper analysis of scrutiny isn't actually a bad thing in my view.

We were always going to be stuck with years and years of court cases to determine reasonable regulation. The problem is, I think RKBA activists (I know I did) expected that when a good plaintiff and case did reach the appellate courts, they would listen to the arguments and actually apply intermediate scrutiny instead of continuing to pass the buck and rubber stamp the lower court. And except for a few cases so far, that hasn't happened a lot. Even where courts are pretending to apply intermediate scrutiny they are either finding it "outside the core right" and subject to rational basis or they are doing rational basis analysis and calling it "intermediate scrutiny."
 
I worry more about the next supreme court judge to be nominated. So many of our rights we enjoy are only one vote away from being taken from us. It certainly does not help what the "honorable" Stevens has written, but the short cut to change is to go from 5-4 to 4-5. Before I get pounded, the "honorable" part was sarcasm.:D
 
Aguila Blanca said:
That said, the verbiage declaring all existing anti-gun laws a "presumptively legal" and then stating that the RKBA is subject to "reasonable" regulation (it does NOT say that in the 2A) did not do us, the 2A, or the RKBA any favors.

Thus, as a consequence of Scalia not being able to interpret "shall not be infringed" to mean "shall not be infringed," we are now stuck with "reasonable regulation" and years and years of court cases to determine what's "reasonable" and what's not.
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That "presumptively lawful" phrase didn't strike me as particularly bothersome. In fact, I assume (I could be wrong) that the concept is an underpinning of our entire system. In other words, are not ALL standing laws "presumptively lawful" until and unless they are struck down? Otherwise, all laws would be unenforceable until a court unheld them, as the only other possible choice would be "presumptively UNlawful".
 
First, it applied only to keeping and bearing arms for military purposes,
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Citation needed for "only". Mr. Stevens appears not to have read the briefs from Heller.

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.
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The 14th Amendment is such a pain, isn't it?

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.”
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Is that so? For more than 100 years the federal government had better things to do than try to ban guns. I don't think law enforcement 100 or even 50 years ago was anything like it is today. There was no Terry doctrine. Police harassed undesirables with near total impunity. There was a lot more looking the other way in other cases. There were also fewer law enforcement per capita. Now Mr Stevens apparently wants police to harass everyone with impunity, because the only way to detect and prohibit gun carry and ownership is by violating the 4th amendment.

The statement of Miller is disgustingly misleading.

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.
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As there was a time when judges wouldn't have suggested that any of the BoR were incorporated. Progress, Mr. Stevens. It doesn't march on exclusively to the drumbeat of your own ideals.


It's truly embarrassing that he couldn't come up with better propaganda than that. A bunch of whining ("nobody would have written Heller decades ago!"), mis-stating history, and an hollow call to amend the constitution.
 
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