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Supreme Court Holds Right to Bear Arms Applies to Individuals
Now.Imperfect writes "In its last day of session, the Supreme Court has definitively clarified the meaning of the Second Amendment. The confusion is whether the Second Amendment allows merely for the existence of a state militia, or the private ownership of guns. This ruling is in response to a case regarding the 32-year-old Washington DC ban on guns." This is one of the most-watched Supreme Court cases in a long time, and Wikipedia's page on the case gives a good overview; the actual text of the decision (PDF) runs to 157 pages, but the holding is summarized in the first three. There are certainly other aspects of the Second Amendment left unaddressed, however, so you can't go straight to the store for a recently made automatic rifle.
I'm a liberal, but I'm from Texas. Gun rights are about the only opinion I share with the right wing, though likely for different reasons.
There are tons of arguments against guns, such as safety in the home or availability to criminals. But in my mind it comes down to just one thing -
The availability of guns to the general public is the last safeguard against tyrrany. It becomes much easier to fight an oppressive government if you have the weapons to do it with.
And let me preempt a few arguments right here - a few of you might ask how a bunch of rag-tag resisters can fight against the most powerful, technologically advanced military in the world?
For your answer, take one look at Iraq.
Ah, but soon you /can/ get an automatic weapon in Kansas. Starting on 1 July this year, Kansas residents may own automatic weapons, silencers, and sawed-off shotguns.
Hail Eris, full of mischief...
E pluribus sanguinem
Look at how many other important decisions lately have been 5-4! Like the decision about Habeus Corpus.
I haven't done a comparison, but I wonder if they are the same 5 and 4? If so, maybe we should clean out the court and start again.
Yup, there's an old anarchist saying: "Oh judge, what good are your laws? The bad man will not follow them, and the good man does not need them."
This is obviously not belonging to "Your Rights Online".
The second amendment obviously covers online munitions as well, which are known to include cryptography and intrusion detection systems.
Note also that the phrase "well regulated militia being necessary to a free state" was also a throw back to the Declaration of Independence, wherin it states that it is the people's duty to reinstitute a free state if the government becomes oppressive to the ideals under which the free state was originally created.
I am pretty neutral on the subject, but I can attest to the fact that the gun ban was not working in DC. I lived in the district for a while, and my girlfriend had a gun shoved in her face by a 14 year old for her purse. I don't think he cared about the gun ban.
That's not annoying - that's helpful, isn't it?
When one party gets into power and abuses stuff, you can use your first amendment. When the other party gets into power and abuses stuff, you can use your second amendment. At least in theory.
I'm happy. The Supreme Court has been making some good decisions lately (ex: Guantanamo).
Buckle your ROFL belt, we're in for some LOLs.
"Arms" obviously means weapons. And "infringed" pretty blatantly screams that they can't stop the people from keeping and bearing arms. Twisting it to mean otherwise is being dishonest and grasping at straws.
My karma is in a nose dive
Nowhere did the Court say that there was an unlimited right to bear arms. They specifically said:
"From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep any weapon whatsoever in any manner whatsoever and for whatever purpose."
Perhaps one of the most likely to be overlooked lines comes at the end of page 57, where Scalia writes: "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."
Moreover, he then continues to write: "We also recognize another important limitation on the right to keep an carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons'."
Further, interestingly, at page 64, Scalia appears to leave open the possibility for attaching summary judgment offenses to the discharge and/or loading of firearms, so long as those penalties are minor.
In any case, the meat and bones of the judgment appears to be this, as stated at pages 58 and 60: The weapons protected by the Second Amendment are those that 'were in common use at the time'. However, this appears to extend to 'classes' of weapons, rather than specific designs (for example, semi-automatic and automatic firearms were not around until the middle of the 19th century, and would therefore certainly not have been 'in common use at the time' and would likely be prohibited), so essentially limits the second amendment to pistols and rifles; I am unsure how this would apply to things like submachine guns, assault rifles, and sniper rifles which likely did not even exist as 'classes' at the time; they don't really say, except to say that "It may be objected that if weapons that are most useful in military service -M-16s and the like- may be banned..." which does imply in fact that assault rifles as a class do not survive the 'in common use' test.
Fairly interestingly is the Court's statement at page 59, that "The handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose." This interestingly folds back into its prior decision in Kennedy v. Louisiana of earlier this week that 'what the public thinks' is becoming a relevant constitutional test. I'm not sure, and they don't elaborate, on how this would come into conflict with the 'in common use' test. For example, imagine the American public decided that automatic grenade launchers were the best method of hunting- would they then also be allowed? If that is not true, I'm not really sure what Scalia's purpose for pointing out that Americans like handguns happens to be. It seems like he's saying that weapons which are overwhelmingly used for a lawful purpose are to be given more legal defense than those which are not.
At page 61, the court overturns the requirement that 'firearms in the home be rendered and kept inoperable at all times'; as this apparently invalidates their core lawful purpose, it is unconstitutional. However, the Court appears to say, that were a self-defense exception included it would be acceptable. How this would work is sort of confusing. The District's statute says, essentially, that every handgun should be kept unloaded and dissassembled or trigger locked unless the firearm is kept at a place of business or being used for lawful recreational purposes. It is unclear exactly what self-defense exemption the Court would prefer; i.e., whether such an exemption would require that firearms be able to be kept loaded and ready to fi
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
I am a liberal, let me correct that, a proud liberal.
I believe that health care for everyone is a responsibility of civilization.
I believe that taxes should be levied on "wealth" not "income." Everything else is just class warfare against the poor and middle class.
I believe in free speech. EVERY FUCKING WHERE, not, bullshit "free speech zones." The U.S.A. IS a free speech zone.
I believe that the 2nd amendment was a proud declaration of freedom. As Ben Franklin said: "Democracy must be something more than two wolves and a sheep voting on what to have for dinner." The 2nd amendment is intended to protect the sheep.
The Indians gained their independence by the grace of a first-world, free-press, gun-weilding populace in Britain, who were shocked at the treatment of the Indians at the hands of their own government. Were there controls on free speech and firearms ownership, the British could have done whatever they wanted with the protesters in India, up to and including wholesale slaughter. Only the political inconvenience of doing this prevented the Indians from being cut down at the hands of their oppressors.
I don't see any need to "follow the lead" of countries with higher per capita crime rates than my own, especially when such action results in a diminishing of my rights. Furthermore, it's very disingenuous of you to suggest that "right to privacy" for telephones exists solely overseas. Telephone wiretaps require warrants and due process to be performed. I suspect strongly that these vaunted "european nations" would just as swiftly tap your phone had they the belief it was necessary.
What about the fact that it doesn't say "guns", just "arms"? I want my personal nuclear weapons!
I've actually schemed in the past that it might be interesting to have a legal framework for private ownership of arms (up to and including nuclear weapons) modeled after the mandatory car insurance laws in some states. That is, it's legal to own any sort of weapon so long as you have adequate insurance/funds to cover potential damages. Like other forms of insurance, you can lower the insurance rates by having adequate safeguards against accidental misuse (armed guards, remote monitoring, location in remote areas, etc.).
Your statements seem to imply that there is nothing wrong with torturing our enemies, and I, like many, many U.S. citizens, have an extreme problem with that. We are supposed to be better than our enemies. We are supposed to uphold the ideals of our Consitution. How can we talk about liberty, while we deny it to others? How can we expect countries to follow our example, become "free" and "democracies", when our example is kidnapping and torture?
I want to remind you here of the stance we took when we decided to rebel against England:
We hold these truths to be self evident, that all men are created equal... U.S. citizens are not more equal. If we do not apply the ideals of our Constitution to everyone then it means nothing.The dissenting argument is that these evils are being perpetrated to protect us. The president claims he has to stomp all over our civil liberties, tap our phones, read our mail, torture our enemies, and dispose of due process to save American lives. I'll leave you with another quote, by Patrick Henry:
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?Guns do not make a revolution. Pepole do.
America has a gun for every citizen. Somalia does too. One is a war zone. The other isn't.
The people can only overthrow a tyrannical government if they have weapons which enable them to do so.
Yes, yes. I'm sure the AR-16 (or any weapons for that matter) I have stashed in my basement will deter any US military and/or Police force that comes knocking. I'm sure that will be 30 seconds well spent.
The notion that a civilian force could "overthrow a tyrannical government" in the US today is quaint at best.
It must have been something you assimilated. . . .
That's part of why we need a right to own guns. Not because we're planning for a civil war, but because lots of people who disagree with you already own them.
It is semantics.
The real issue there (Roe v Wade) was whether a young fetus is a "person" (granted full rights), or not a "person."
a) if someone is a person, you cannot use "privacy" as an excuse for terminating them. For example, I cannot invite you to my private home then kill you, then say the government cannot violate my privacy.
b) if something is not a person, you have the right to medical privacy such that a state could not, for example, make it illegal for you to remove a cancer tumor or an ingrown nail, or whatever.
Obama likes poor people so much, he wants to make more of them.
The day the Stormtroopers come knocking at your door, you'll wish you had emigrated.
Fixed that for you.
I live in the Washington, D.C. area and went to an soiree at the New Zealand embassy earlier this week, meant to introduce the country to Americans potentially interested in moving there. They're crying out for IT people, and they certainly made it seem nice there. I thought it was interesting that the room was full of smart, capable people who found NZ's ideas intriguing and wanted to subscribe to their newsletter. Food for thought.
Space game using normal deck of cards: http://BattleCards.org
Now I have to go and revise my opinion of Scalia as a fascist, presidential stooge. It was so easy when his public commentary on the Habeus Corpus decision was so obviously both emotional AND unconstitutional. Sigh, and just when I was beginning to enjoy a nice, two dimensional world view again he had to go and mess it up.
Correct me if I'm wrong, but the thinking behind the 2nd amendment is "in case of tyranny, take up arms, overthrow the government", right?
So let me get this straight: Individual citizens armed with handguns and rifles and shotguns are going to go up against government forces, who have artillery, cruise missiles, and attack helicopters?
So unless 2nd amendment advocates are going to actually advocate private ownership of stinger missiles and anti-tank weapons and what-not, it makes no sense at all.
The plural form of "anecdote" is "anecdotes", not "evidence".
No matter what side of this issue you are on, the dissenting opinions are worth a careful read. They highlight and document in detail the errors made in the Majority decision, the most blatant of which being a complete misquote of a supreme court precedent used to support their opinion:
Majority, page 47: "We (the supreme court, in 1876, in United States v. Cruikshank) describe the right protected by the Second Amendment as 'bearing arms for a lawful purpose'."
The actual precedent set in 1876 was in fact the /exact opposite/:
Stevens, J., Dissent, page 39: "The Court wrote, as to counts 2 and 10 of respondents' indictment: 'The right there specified (in the indictment that they were overturning) is that of "bearing arms for a lawful purpose" This is NOT (emphasis added) a right granted by the Constitution.' ... 'This is one of the amendments that has no other effect than to restrict the powers of the NATIONAL (emphasis added) government.'"
Justice Stevens continues: "The Cruikshank Court explained that the defective indictment contained such language, but the court did not itself describe the right, or endorse the indictment's description of the right."
There are many other such contradictions in the ruling that merit serious reading. No matter what side of the fence you are on, it seems this ruling is based on very shaky grounds and dubious interpretations of precedents.
The accusations that one should expect more "intellectual honesty from Supreme Court judges", attacking the dissenters are completely unfounded and could only have come from someone who didn't bother to read their well-referenced and well-argued opinions.
1. The police are usually historians. They are not there to protect us.
2. The Second Amendment is the reset button on the constitution. You hope the processes all run & terminate cleanly, but sometimes . . .
I was agreeing with you all the way until your unfortunate last paragraph. As a law professor, you should be ashamed of that one. Make it "alleged unlawful combatant and alleged POW" and then read the Huzaifa Parhat case.
In case you need a refresher, an appeals court found that Huzaifa Parhat, a Uighur from China, was not an "enemy combatant." The court ordered the military to release him, transfer him to another prison or hold a new hearing.
Only after this decision did the the US military finally realize, after holding the 17 Uighurs in Guantanamo for 6 years, that the only "enemy" of these people is actually China, not the US. The Uighurs were generally turned over to the US military by bounty hunters in Afghanistan and Pakistan, so we can't even argue that we captured them on the field of battle and could presume that they were combatants.
If you think deeply enough, you will have no single direction for your outrage.
Interestingly enough, I am quite liberal and used to be very much for gun control. The past eight years of torture, wiretapping, and suspension of Habeas Corpus made me realize that the 2nd amendment is not just an issue of rednecks and their right to hunt.
I feel the Bush administration shows what can happen when the gov't no longer regards the people it serves. Governments need to fear their citizens, even if only a little bit. An armed populace may be the ultimate check and balance.
At first you need to crack down on political correctness.
Your typical murderer:
- is not of Asian or European descent
- is not female
- is older than ten but younger than 40 years
- has not graduated from high school
- is no member of any organized Christian, Buddhist, Jewish, Hindu, Wicca, Scientology or Jedi religious community.
- has had no regular employment for more than a year
- is not unbeknownst to local police concerning violence and petty crimes
- has a connection to substance abuse and/or drug trafficking.
- shows obvious signs of personal neglect.
Anyone living in your city can visually identify the people belonging to the most notorious group of possible murderers. Within less than 100 milliseconds even in a low-light environment.
Simply put, these are the people you would instinctively avoid on the street rather than to walk past them.
Control these obvious targets and your police can devote much more time to real crime solving: the remaining 20 percent or so of violent offenders that do not fit the pattern. But most other murderers and their victims know each other by first name, so the police has a fair chance of solving the crime.
Political correctness and misguided human rights activism is one of the main reasons that the police can not perform their duties like they need to. That said, depraved policemen like those who attacked Rodney King bear a lot of guilt on this development as well.
Black or Hispanic young men often complain about being stopped by police for 'driving while black', ie. doing nothing suspicious at all. But that's an unfortunate result of politically inconvenient realities.
Truly random stop and search operations will not yield significant results because the face of crime is not random. It is male, between 15 and 35, with poor education and a dark skin complexion. Changing search procedures or whining about inequal treatment will not change this empirical fact that everyone can observe in our jails and courthouses.
Note that I did not talk about possible reasons behind this situation. If this is a consequence of social inequality, social exclusion or pure chance should be of no interest to law enforcement. Teachers and welfare professionals should care about that, while the police keeps them from being murdered.
So those of us who are less than (media stereotype of) perfect should be ashamed of our bodies?
You know, bodies are bodies, they are not purely for your vicarious titillation, to fuel your sexual fantasies. Some of us are fond of ours because they process our food and give us useful limbs.
It's a sad state of affairs when people assume that the human body is vulgar in certain cases simply because it does not conform to stereotypes of youthful beauty.
If you want to look at artificially-perfect bodies, you can buy a special magazine or DVD.
That's my encroaching mid-life crisis for today. Time for my pills...
Stick Men
Perhaps you should re-evaluate what you question. The US Constitution doesn't grant or create any rights. That was true before there was a Bill of Rights, and is no less true afterward. It merely recognizes them. That's a great distinction. We believe that people have certain inalienable rights. And our Constitution recognizes those. And per the 9th Amendment, its specific recognition of a very small subset of our rights does not imply that we do not have more. Notwithstanding that the Supremes historically don't like the 9th Amendment and would prefer to find asinine things like 'penumbras' of other rights.
We the people are sovereign, we hold all power, and we have all rights. My rights don't come from a piece of paper, a court, or Congress, or my neighbors.
Regarding the right to keep and bear arms: there are those, such as I, who would argue that a free person has that right, regardless of the existence of the 2nd amendment. An unfree person does not have that right. A free person has a right to the means necessary to protect his or or liberty, life and property from all enemies, foreign or domestic. The question is not whether we have the right. The question is to what extent can that right be regulated, and that is a good question. And now, the Supreme Court has finally set us on the path of answering THAT question, not debating over whether we have a fundamental right or not.
To the point of not needing guns: we need arms to protect ourselves from a tyrannical government. I'm not saying that we need to overthrow our government now or at any foreseeable time, or even that we could. I am saying that as free people we have the right to the means to do so, even if the need seems implausibly remote, and a good way to continue to ensure that implausibility is to continue to let free people arm themselves. A people stripped of their fundamental right to protect their liberty, by force of arms if necessary, can only be stripped of more rights. The fact that we retain the right to arms, that we remain vigilant and cognizant of our fundamental rights as free people, is a strong indicator that we retain our other equally important rights.
Larry
Thought experiment:
You're an American citizen of Japanese ancestry, living peacefully in the US in 1942. The government comes for you. Do you a) go peacefully, or b) defend yourself with your guns?
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