The Perils of Scalia

[Tom Servo]

The Supreme Court hasn't construed "arms" in the right to keep and bear arms to be limited to just and only handguns.

No, but the Heller and McDonald decisions were about handguns in the home. You're right that they didn't limit the right to that, but they did stop there. A politician or Justice can interpret that as applying only to handguns.

I don't like it, either, but sometimes that's the landscape.

From my perspective, Heller, far from being little more than a lurch and then we are brought to a grinding halt, I see it more as having put the ball into motion.

Two years ago, I'd have agreed. I still want to. I'm glad we have those decisions, and they are a bulwark. Notice how anti's have gone from "there is no right to own guns" to "I support the RKBA, but..."

Still, we may be at an impasse for the near future.

 

[Aguila Blanca]

I don't agree, but certainly, you're entitled to your opinion. Heller already protects more than a right to have a double-barreled shotgun, and McDonald already incorporates the Second Amendment right recognized in Heller.

Yep, it protects the right to have a handgun in the home. At the moment, we come to a full stop right there.

I disagree. I don't think we come to a full stop at "handgun in home."

The broader issue decided in Heller was the question of whether the 2A guarantees an individual right to [___] arms, or only a collective right nebulously linked to service in a militia that most people don't even know still exists (on paper, anyway). The answer was that it is an individual right. That alone is (IMHO) HUGE!

Beyond that, the "in the home" limitation is not much of a limitation, although I readily acknowledge that some lower courts are misinterpreting it and using it as a limit. Mr. Scalia's majority opinion did NOT in any way state that the 2A RKBA is limited to keeping a functional firearm in the home. The case before the court was about Washington's ban on functional firearms in the home, so that was necessarily a focal point in the discussion.

However, once you get beyond that, there is simply no escaping that the 2A does not discuss two separate, distinct rights: one a right to "keep" arms, and another, separate right to "bear" arms. The language is clear and straightforward: "The right [singular] of the People to keep and bear arms shall not be infringed."

All the dicta in both Heller and McDonald discuss "the" RKBA as a single right -- which, by the language of the 2A, it is.

What is up for discussion now is not whether or not we have a right to bear arms outside the home, but only the extent to which the states may regulate that right.

And McDonald wasn't really about handguns in the home. McDonald was about whether the 2A constrains only the Federal gobvernment, or if it also constrains the states and lower levels of government. And the answer was that it DOES apply to the states. That, again, is HUGE!

 

[Frank Ettin]

The broader issue decided in Heller was the question of whether the 2A guarantees an individual right...

Correct, and we should not be discounting that.

Heller and McDonald were watershed. Before Heller we were still fighting about whether the Second Amendment described an individual or collective right, and before McDonald we were saddled with Cruikshank and the Second Amendment not applying to the States. Those were threshold questions, and they've been answered in a manner favorable to our interests.

 

[SPEMack618]

This may be out of line, and possibly in the wrong forum, but would it behoove us, as the Pro-Second Amendment community, to wait before bringing courses before the Supreme Court.

I understand that cases work thier way through the lower level courts slowly as is, and we are worried about a change in the political landscape of SCOUTS, but would it help in anyway to take what the Army calls an Operational pause?

 

[Charles Mosteller]

This may be out of line, and possibly in the wrong forum, but would it behoove us, as the Pro-Second Amendment community, to wait before bringing courses before the Supreme Court.

I understand that cases work thier way through the lower level courts slowly as is, and we are worried about a change in the political landscape of SCOUTS, but would it help in anyway to take what the Army calls an Operational pause?

Your analogy to what the Army calls an operational pause is problematic, because the right to keep and bear arms is not an Army operation, and litigation in the courts is not a military operation. The analogy is one of apples being substituted for oranges.

Who would you propose be the one that refrains from defending their constitutionally protected right to keep and bear arms? What criteria do you use, to determine who should and who should not defend their rights in courts of law?

You refer to what you characterize as the Pro-Second Amendment community. The right to keep and bear arms is not a community right, but an individual right. Should the defense of individual rights be determined by, or left to the whims of, a select community, rather than by individuals whose rights are being violated at the individual level?

That the United States Supreme Court doesn't accept a particular case, or a thousand cases, for certiorari does not inhibit its ability to arrive at the right conclusion, in a given case that comes before it in the future.

It would seem to me that the thing that the Army calls courage would make for a better analogy - and for better chances to see the right to keep and bear arms fleshed out in jurisprudence, than the thing that the the Army calls operational pauses.

 

[Alizard]

We seemingly rejoiced over Heller. However, was it a definitive game changer?

YES!

The entire strategy of the gun grab was to establish in law that citizens do NOT have the right to own guns and that the 2A applies only to state militias or guard units. The gun grabbers got their teeth kicked in.

The proof is that the entire first Obama admin did not even go near the gun control issue. They know it's hopeless. The aurora/sandyhook incidents forced them to respond in some way, and it went nowhere. No new laws, no hope and Obama knows it.

 

[JimDandy]

When it's quoted on the Senate floor during debate, it certainly did something.