SCOTUS and the 2nd Amendment

[Aguila Blanca]

Do not confuse the fact that we have failed on too many occasions to live to the ideals of the Founders, with the idea those ideals are flawed. That's is a different matter.

Didn't Ben Franklin address that, back in the day?

At the close of the Constitutional Convention of 1787, Franklin was queried as he left Independence Hall on the final day of deliberation. In the notes of Dr. James McHenry, one of Maryland’s delegates to the Convention, a lady asked Dr. Franklin “Well Doctor what have we got, a republic or a monarchy.” Franklin replied, “A republic . . . if you can keep it.”

http://www.whatwouldthefoundersthink.com/a-republic-if-you-can-keep-it

If we fail to live up to the ideals set forth in the founding documents, it means that we will have failed to keep it {the republic], as cautioned by Benjamin Franklin.

Looking around today, mu y opinion is that we are failing massively, and have been for a number of years.

 

[Bartholomew Roberts]

RC20 wins the ironic signature of the forum award.

 

[Wallyl]

IMHO the SCOTUS, which supposedly is there to uphold the constitution, has reneged on its' duty & responsibility to do just that. Take the 2nd amendment---the language is quite clear.....SHALL NOT BE INFRINGED yet politicians pass illegal & unconstitutional laws that violate the amendment.....they swore an oath to abide by the constitution. By passing illegal laws they have violated their oath and should forfeit their office. The whole Judicial & legislative system is a pure fraud, as they knowingly & wantonly violate the constitution & Bill of Rights. When parties petition the court to rule on violations of the 2nd amendment, they have repeatedly declined to take to review the same. Absolutely unacceptable and is indicative to me that they should be removed

 

[Aguila Blanca]

This forum discussion area is called "Law and Civil Rights" for a reason. It's a place to discuss laws and civil rights ... not politics.

 

[5whiskey]

I don't think they are wrong, in fact, on the surface, they are technically correct, sort of...

OF course, I look at it a bit differently than many. The 2nd Amendment is simple, despite all the arguing. It prohibits (shall not) the FEDERAL government from interfering (infringe) with the citizens right to arms.

It grants NOTHING to the citizen, that they do not already possess, simply by being citizens (natural rights), it is a check on the authority of government.

Yes, ONE of the things you can do with arms is defend yourselves, from physical attack. Doesn't matter if the attacker is a beast, or a robber, rapist, murderer, and it doesn't matter if they are in organized groups and paid by the government.

Doing that is up to you, and up to "We, the people".

44amp I understand what you are saying and where you are coming from. I also do not disagree with you, other than it is not realistic to believe that absent the bill of rights that we would be allowed to possess modern firearms today. We also would likely see press and religion regulated, unreasonable government searches, and a number of other government overreaches. As a matter of fact, we have already seen all of this. I agree philosophically that these are natural rights. In all practicality, for us, they are granted rights. Don’t believe it? Read up on law enforcement tactics used in the gangster era of al Capone and other bootleggers, BEFORE most of the bill of rights had been incorporated to apply to state and local governments. Federal agents frequently interacted with local law enforcement to do the “dirty work” of interrogation and searches in that era because the bill of rights was largely viewed to not apply to the states. Sadly it was rather common for state and local law enforcement to search homes and businesses without a warrant or even probable cause prior to the Mapp Decision in 1961.

So philosophically the bill of rights are natural human rights. Realistically it is a list of things the government can not do to us. Practically, it is something that we can thank the framers, with input from anti-federalists, for guaranteeing. And like it or not, courts are instructed to consider and give weight to the intent of the legislature in questions of statutory law, and to the intent of the framers in questions of constitutional law. Fortunately the framers actually left behind a significant amount of material that documented their thoughts and reasoning. The most prevalent argument offered to the reasoning behind protecting the right to arms in the writings of the framers is, in fact, to provide for the common defense via militia. Almost every framer that wrote any content to the subject also supposed that an appropriate use of militia would be armed resistance to a despotic government, should circumstances necessitate such.

 

[44 AMP]

Almost every framer that wrote any content to the subject also supposed that an appropriate use of militia would be armed resistance to a despotic government, should circumstances necessitate such.

Agreed. And, they were right to do so. Considering that they had done just that in the Revolution, AND that they were primarily writing about the proper roles responsibilities, and restrictions for the FEDERAL government, its only sensible that militia use as resistance to tyranny was uppermost in their thoughts on the matter.

Some people are looking at what the Founders wrote and assume that what they wrote about was the only thing on their minds. Consider that the Founders might not have bothered to write about things that "everyone" knew, such as using arms for personal self protection, be it from wild animals or wild men. Those were not Federal matters in those days. So why would they write about them when discussing Federal roles and responsibilities?

Also, the Founders knew they weren't covering everything, and even wrote that into the Bill of Rights (9th & 10th Amendments).

I think its wrong and shortsighted to believe the Founders didn't believe in certain things, because they didn't write about them, particularly when those writings are about Federal matters.

I do agree there is a huge difference between America in 1790 and America in 2020. I think we've improved some things in ways the Founders would have approved of. I also think other things have changed in ways they wouldn't much care for.

 

[Aguila Blanca]

We also would likely see press and religion regulated, unreasonable government searches, and a number of other government overreaches.

We have huge numbers of unreasonable searches today. When the police are allowed to lie in search warrant applications with no consequences, and when judges routinely allow no-knock or so-called "knock and announce" (which amount to "Police. Open the door." followed about 1.37 nanosecond later by smashing in the front door -- at 3:35 a.m.) warrants to search for inanimate objects, we have de facto unreasonable searches.

 

[jdc1244]

The Supreme Court has decided NOT to hear any of the pending 2nd Amendment cases before it.

This could simply be a conservative Court content to allow Second Amendment jurisprudence to continue to evolve at the state level – consistent with conservative judicial dogma that such matters should be decided by the people through the political process, respecting states’ rights, not the judicial process by tyrants in black robes legislating from the bench.

And as long as the lower courts are in agreement as to the constitutionality of certain firearm regulatory measures, the justices will continue to avoid hearing those cases.

Last, packing the Court with conservative ideologues likely won’t have the desired outcomes.

 

[Aguila Blanca]

And as long as the lower courts are in agreement as to the constitutionality of certain firearm regulatory measures, the justices will continue to avoid hearing those cases.

But the lower courts are not in agreement. I believe some of the cases that were denied cert this session involved circuit court splits (opposing opinions).

 

[maestro pistolero]

Quote:
The 2nd does not work and does not do what it was thought to do (and taken out of context).

How could it, when it has been hamstrung and cord cuffed by the courts and the legislatures. Perhaps if we gave it an honest try . . .

 

[44 AMP]

How could it, when it has been hamstrung and cord cuffed by the courts and the legislatures. Perhaps if we gave it an honest try . . .

We did give it an honest try, and for quite a while, too. Remember, the 2nd Amendment to the US Constitution is a Federal matter. And, up until the Civil War, states had rights and one of the common beliefs was that gun control (if it was even considered) was a state matter.

When is the first FEDERAL gun control law?? 1934?? (if there is an earlier one, I'm unaware of it)

145 years isn't a bad record, BUT it should have been longer. Also remember that the 1934 NFA affected only a (relatively) small number of people, directly, at first. And, up until about 1968, it was most often considered a tax matter, not a criminal one. Until that change, it was common that if you were found with an unregistered NFA item, you could just register it, pay the tax, and go on with your life.

1968 is when the Federal hammer came down, hard. That law included the end of mail order sales and USPS delivery to your door (with limited exceptions), import bans (based on arbitrary requirements), age limits on purchase, federal license for gun dealers, record keeping requirements, and even record keeping for ammo sales (which was later dropped). Also included was the creation of a virtually permanent class of prohibited persons , convicted felons.

No right is absolute, all have limits, and restrictions, either specified in law or by common consent. Our problem of the past century or so is that too many people have been in power who believe that as long as you can own some type of gun, our rights are not being infringed, merely regulated.

SCOTUS has ruled that our right to arms is independent of the militia, but at the same time, allowed that regulation is "reasonable".

and, without going into any detail about where regulation passes from reasonable to unreasonable, let alone infringement. "In common use" is vague to the point of foolishness, considering how people twist definitions to suit their own agendas.

SCOTUS not hearing 2nd A cases curtails the possibility of us "winning" rights back, but it also means our losses are not permanent, yet.

 

[Aguila Blanca]

SCOTUS has ruled that our right to arms is independent of the militia, but at the same time, allowed that regulation is "reasonable".

I feel a need to quibble with the second part of your statement. It's a rather pedantic quibble (my specialty) but, nonetheless, I think what you're trying to say might be phrased differently for better clarity.

Justice Scalia's decision in Heller didn't so much say that "regulation is reasonable" so much as "reasonable regulations may be allowed but, for today, we're not discussing which regulations are or aren't reasonable." Clearly, he didn't say or intend to say that all [firearms] regulations are reasonable ... but that's the way many of the lower court judges seem to be interpreting Heller.

 

[zukiphile]

Justice Scalia's decision in Heller didn't so much say that "regulation is reasonable" so much as "reasonable regulations may be allowed but, for today, we're not discussing which regulations are or aren't reasonable." Clearly, he didn't say or intend to say that all [firearms] regulations are reasonable ... but that's the way many of the lower court judges seem to be interpreting Heller.

Indeed. It is no pedantic quibble, but bears on whether Scalia abandoned the right to an extraordinarily low level of constitutional protection, a reasonable-ness test. He very clearly didn't, but we know that lower courts don't always feel bound by Sup Ct decisions. See Caetano.

The language from which people to appear draw this test doesn't contain the word "reasonable".

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

It means the only challenge before the court is the regulation challenged by Heller. The court does not announce a test for the constitutionality of regulations, though in the wake of the decision, Gura thought that for currently legal arms there should be no scrutiny test for arms regulation. Instead Gura offered the idea that no federal regulation of those items should be permitted.

Given the way other fundamental rights are protected, measuring the validity of a regulation against strict scrutiny is most consistent with the rest of our constitutional case law.

 

[44 AMP]

I will amend this statement,
SCOTUS has ruled that our right to arms is independent of the militia, but at the same time, allowed that regulation is "reasonable".

To this..

SCOTUS has ruled that our right to arms is independent of the militia, but at the same time, allowed a ruling that permits other people to believe that regulation is "reasonable".

What the ruling essentially said was "we aren't looking at that today, and until we do, there's no ruling."

which is one of the issues we have with our system. The court rules on narrow matters, specific to the case in front of them, and other people take the ruling, and take off at mach 3 claiming the ruling is blanket coverage of what ever their pet agenda is.

And, the court is under no compulsion to inform, educate, or correct them, until/unless another case they hear requires it.

I am under the impression that the High Court feels correcting lowers courts about their rulings isn't their job, until a case before them makes it so.

The problem with that, is time. It may take decades for such a case to be heard by the High Court, and until then what ever damage done to our rights continues to be done, and added to during the "lag" period.

 

[zukiphile]

I am under the impression that the High Court feels correcting lowers courts about their rulings isn't their job, until a case before them makes it so.

Indeed, and it isn't merely their feeling but is inherent in a court system that only resolves the disputes brought before it.

The problem with that, is time. It may take decades for such a case to be heard by the High Court, and until then what ever damage done to our rights continues to be done, and added to during the "lag" period.

100% correct, though that timing is also influenced by more than one side. One would hope that it doesn't take decades to find an attractive party who brings favorable facts to a challenge and is guided by excellent counsel before a sympathetic Court.

The last part, a sympathetic Court, is the element likely to be influenced by the political process within the next four years.


My guess would be that if Heller had been heard before a Sup. Ct. on which you, AB, Clarence Thomas and I sat, you might have seen a decision that had something in it about how the DC law fails because it doesn't serve a compelling governmental purpose by way of a narrowly tailored law, but then we might not have been in the majority.

Until there is a block that looks at constitutional and even case language as we might, one thing we can do is see whether nominees write and reason in a way we find congenial. I think I saw that in Kavanaugh's response to Sen. Feinstein's looney idea that ARs aren't in common use if they aren't usually killing someone, and his analysis of an AR as functionally similar to Heller's pistol.

The only way to see more nominees like Kavanaugh seems to be to gain the commitment of a candidate to nominate people like him.