Senate The All New & Improved Second Amendment Thread: Mod approved.

Discussion in 'Archive: The Senate Floor' started by LostOnHoth, Jan 26, 2013.

  1. LostOnHoth Chosen One

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    Gun control is a big issue in the US and will likely stay that way for the foreseeable future. Whilst there is a gun control thread in JCC, this thread is specifically for discussion about the Second Amendment, which very much influences the legislative scope of gun reform initiatives in the US.

    Unlike other US Constitutional amendments, the Second Amendment has not been the subject of much judicial interpretation. In fact, it was largely uncontroversial until the US Supreme Court handed down its decision in District of Columbia v Heller in 2008.

    The Heller decision was significant. For the first time, the US Supreme Court interpreted the Second Amendment to protect an individual right to possess a firearm unconnected with service in a Militia, and to use that firearm for traditionally lawful purposes, such as self defence within the home.

    Link to the Heller decision is below:

    http://www.law.cornell.edu/supct/html/07-290.ZD.html

    How can this be?

    The Second Amendment reads as follows:



    In Heller the Supreme Court was closely divided. The majority argued that the Second Amendment should be interpreted as an “individual right” which effectively incorporated the common law right to bear arms for self defence and other lawful purposes which the US inherited from the laws of England (in particular, the interpretation of the English Bill of Rights and Blackstone’s commentaries).

    The minority argued that the Second Amendment was indeed an “individual” right but the scope of that right was limited to service in a Militia and there was nothing in the text of the Second Amendment or its drafting history which indicated that the right was intended to limit the regulation of private civilian use of firearms.

    I find myself very much in agreement with the minority.

    Why? Quite simply I believe the majority has ignored one of the fundamental rules of statutory interpretation - “the mischief rule”. The mischief rule simply states that in determining the meaning of a statute, attention should be given to ascertain “the mischief and defect” that the statute was intended to remedy. This effectively entails an examination of the intent of the author of the statute when it was written.

    Quite clearly, the ‘mischief’ which the Second Amendment was intended to address was the allocation of military power and the creation of a “national standing army”. The concern was the threat to liberty and to the sovereignty of the separate states posed by a national standing army.

    Clearly, any power to ‘disarm’ the state militia’s represented an intolerable risk as perceived at that time. On this basis, the Second Amendment was drafted to ensure that state militias would be preserved.

    More importantly, the history of the drafting of the Second Amendment by Madison shows that specific wording was proposed by various states to include a specific right to “self defence”.

    For example, the Pennsylvania proposal included the words “That the people have a right to bear arms for the defence of themselves and their own State…”

    These proposals were specifically rejected by Madison and the text of the Second Amendment was drafted to specifically exclude any mention of non-military uses of firearms.

    The majority instead have embarked upon a reading of the English Bill of Rights and Blackstone’s commentaries to support their position. Those authorites are at best indirect and of questionable relevance, particularly when there is so much written on the drafting of the Second Amendment where specific proposals to incorporate the right to bear arms for self defence were rejected.

    Accordingly, whilst there was indeed a common law right to bear arms for self defence inherited from old English law, the Second Amendment was not intended to limit the regulation or limitation of that common right by overriding legislation.

    Accordingly, the majority got it very wrong in the Heller decision.

    What do you all think? Am I wrong? If so, why?
    Last edited by LostOnHoth, Jan 26, 2013
  2. LostOnHoth Chosen One

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    Edit; re-tagged. Thanks Ramza.
    Last edited by LostOnHoth, Jan 26, 2013
  3. DarthBoba Manager Emeritus

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    Could you post up the English laws if it's not too much hassle? I've never read them and feel curious.
  4. KnightWriter Administrator Emeritus

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    Have the government confiscate all handguns and ban the possession of all guns not belonging to law enforcement/government/security types. Perhaps some exemptions for licensed hunters.

    Other than that, no guns.

    That is my contribution to this discussion.
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  5. LostOnHoth Chosen One

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  6. DarthBoba Manager Emeritus

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    I take it this is what the SC based their decision on:

    7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.


  7. LostOnHoth Chosen One

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    Yes, that's the one, Article VII. My position is that if it was the intention of Madison to enshrine a right to bear arms for self defence in the Second Amendment, then Madison need only have inserted the words "for self defence" into the text somewhere. The opportunity to do so was presented, arguments made in favour, text proposed, yet the final text specifically excluded reference to non-military use of firearms. That indicates to me an intention not to enshrine such a right.

    This is what the minority in Heller had to say about the English Bill of Rights:

    The English Bill of Rights
    The Court’s reliance on Article VII of the 1689 English Bill of Rights—which, like most of the evidence offered by the Court today, was considered inMiller<footcall num="30">—is misguided both because Article VII was enacted in response to different concerns from those that motivated the Framers of theSecond Amendment , and because the guarantees of the two provisions were by no means coextensive. Moreover, the English text contained no preamble or other provision identifying a narrow, militia-related purpose.
    The English Bill of Rights responded to abuses by the Stuart monarchs; among the grievances set forth in the Bill of Rights was that the King had violated the law “y causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Article VII of the Bill of Rights was a response to that selective disarmament; it guaranteed that “the Subjects which are Protestants may have Armes for their defence, Suitable to their condition and as allowed by Law.” L. Schwoerer, The Declaration of Rights, 1689 (App. 1, pp. 295, 297) (1981). This grant did not establish a general right of all persons, or even of all Protestants, to possess weapons. Rather, the right was qualified in two distinct ways: First, it was restricted to those of adequate social and economic status (“suitable to their Condition”); second, it was only available subject to regulation by Parliament (“as allowed by Law”).31
    The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right—adopted in a different historical and political context and framed in markedly different language—tells us little about the meaning of the Second Amendment .
    Last edited by LostOnHoth, Jan 26, 2013
  8. Kimball_Kinnison Force Ghost

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    Part of the problem here is that the Heller minority placed a lot of reliance on Miller, without considering the context of Miller. The ruling in Miller is a great example of the limitations of judicial interpretation.

    The short version of Miller is as follows: Miller was convicted of possessing an unregistered short-barreled shotgun, which was made illegal under the National Firearms Act of 1934. His conviction (and indeed the NFA) was struck down by the lower courts in a one-paragraph ruling, at which point the US appealed the case to the Supreme Court. Because of financial and other issues, only the US actually presented any arguments to the Supreme Court. Miller was then found (murdered) about a month before the Court released its ruling in 1939. In that ruling, they remanded the case back to the lower courts because of a lack of information (specifically whether a short-barreled shotgun is commonly used by the military, which it was). Upon remand, the case was dismissed as moot because of Miller's death.

    In other words, it was a one-sided ruling because only one side showed up, and then the whole thing got dropped.

    That was the only ruling by the Supreme Court to directly address the Second Amendment until Heller in 2008 (and now McDonald in 2010, although more are on their way). However, that doesn't mean that the individual rights view of the Second Amendment was created after Miller came along. It shows up in passing in several cases throughout the 1800s, most notably in the Dred Scott v. Sanford decision (1857) in two different places:
    That shows that as of the mid-1800s, there was at least a significant amount of support for the individual-rights view of the Second Amendment (as free blacks were not legally included in the "militia" until after the Civil War). It's especially striking that the references were made in a way that treated them as similar to all of the other rights that we consider to be individually-held.

    Heller didn't come out of nowhere. It has a strong foundation in history and law prior to Miller, and Miller had some very serious structural defects.
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  9. LostOnHoth Chosen One

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    Thanks for your post KK. I will respond soon, just as soon as I deal with this pesky real life workload. I have this employer who expects me to work for my salary. It's outrageous.
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  10. Kimball_Kinnison Force Ghost

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    Well, you should just tell them that some things are more important! :D

    One other point that I forgot to mention is that there is also a lot of historical context around the drafting and passage of the Fourteenth Amendment that indicates that one of the major concerns was the way that several states were trying to disarm freed slaves. (In fact, historically, a lot of the modern gun control proposals have their historical roots in the Jim Crow era for that very reason.)
  11. yankee8255 Force Ghost

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    Sounds like a gun might come in handy. :p
    Last edited by yankee8255, Jan 29, 2013
  12. Kimball_Kinnison Force Ghost

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    Any time yet? I'm eagerly awaiting your response, especially considering how the JCC Gun Control thread has continued to disintegrate. Some rational and reasoned discussion based on facts will be a welcome thing.
  13. Kimball_Kinnison Force Ghost

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    For reference, there are a few more Second Amendment-related cases working their way through the federal courts. If you are interested, they are the ones to watch in the next few years, as they are very likely to reach the Supreme Court. While Heller and McDonald focused primarily on the right to "keep" arms, several of these new cases focus on the "bear" arms portion of the Second Amendment.

    First, there's Woollard v. Sheridan, out of Maryland. In this case, the District Court ruled that Maryland's "may issue" policies for issuing concealed carry permits was a violation of both the Second Amendment and the rights to due process and equal protection. The Maryland law requires that a person show "good and substantial reason" to be issued a permit, but largely leaves the determination of whether something is "good and substantial reason" or not up to local law enforcement and a state review board. In the specific case, Woollard had a permit issued because he was the victim of a home invasion (by his son-in-law, no less). The permit was renewed in 2006 as his attacker was about to be released from prison, but in 2009 it was rejected for lack of "good and substantial reason". As in many other "may issue" states, most permits are issued to the wealthy and/or politically connected. This is probably the most important of the cases right now, as it will likely force states to convert any "may issue" permit systems into "shall issue".

    Second, there's a similar case in New York that appears to be headed towards a Circuit split (which would almost require the Supreme Court to take the cases). Check out Kachalsky v. Cacase.

    Third, on a related note, Illinois recently had their law prohibiting all forms of carry struck down in the 7th Circuit as violating the Second Amendment. The case is Moore v. Madigan. Expect this case to be appealed as well. Illinois is the only state that outright prohibits all forms of carrying a firearm in public.

    Fourth, we are also waiting on the results of the appeal in Lane v. Holder, which deals with the prohibition on buying handguns across state lines. Federal law requires that if a person wants to purchase a handgun from someone in another state, then it has to be transferred to them by a Federal Firearms Licensee in their home state (who performs the required background check). Michelle Lane is a resident of DC, where there is only one active FFL (and even he was forced to shut down for a while, which is part of what sparked the case) who charges extremely high prices to transfer firearms (because he's got a captive market). DC's zoning laws make it virtually impossible for another FFL to open up shop in the District. The case was dismissed for lack of standing (although the ruling said that the plaintiff was likely to win on the merits), but that ruling is on appeal right now.

    There is also a sequel to DC v. Heller (also known as Heller 2) that has started working its way through the courts challenging the draconian restrictions that DC passed in response to the original Heller decision. Parts of that case have been rendered moot as DC modified the restrictions, but other parts remain in effect.

    Because the Second Amendment hasn't been the subject of many lawsuits until recently, it is really one of the last true frontiers of constitutional law. To date, the only Supreme Court rulings to directly address the Second Amendment are US v. Miller (1939), District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). However, the Second Amendment has come up in passing in other cases, such as Dred Scott v. Sanford (1857), US v. Lopez (1995), or the little-known Moore v. Houston (1820). (Moore v. Houston is actually the first mention of the Second Amendment in a Supreme Court ruling, although the Court referred to it as the "fifth" amendment in the ruling. The case dealt with the Militia clause of Article I Section 8.)
    Last edited by Kimball_Kinnison, Feb 1, 2013
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  14. LostOnHoth Chosen One

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    Discussion to be continued tonight (Australia time) :D Hopefully, moving forward, there won't be a week between posts but you know how it is.
    Last edited by LostOnHoth, Feb 1, 2013
  15. Jabbadabbado Manager Emeritus

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    I like the minority opinion in D.C. v. Heller too, but I guess I also find it hard to believe that the framers didn't have a deep appreciation about the general significance of long guns for homestead defense by people living on the edges of European settlement. It looks to me like the disagreement over the collective rights to an armed state vs. individual right meaning of the clause was likely baked into the wording. If it had been less ambiguous, then there might have been no agreement on the clause. And if the controversy over its meaning was intentionally baked in, then no one needs to be surprised that it might eventually get decided one way or the other, or first one way, then the other. The real violation of originalism in the majority opinion may have been the casual casting aside of the clause's strategic ambiguity. In any case I think there's a very real right lurking behind the controversial right: a certain right to optimize one's own and one's family's chances of survival when dangerous situations arise, a right implied by the "right to life."

    That's why the latter parts of Scalia's opinion confuse me.
    Next to this right of self-defense, Scalia places the public desire for handguns and matches that to a conjured acute need for self defense in the home. How acute actually is the need for defense in the home? Scalia doesn't say. He implies a threat from intruders, doesn't really address the threat family members pose to themselves and each other, or their relative danger. However, if the right to armed self defense is a subset of the right to optimize one's survival chances, then maybe a scientific assessment of the relative dangers of internal vs. external domestic threats is worth exploring before declaring the need for armed self defense in the home to be "most acute."

    And what does the public desire for handguns have to do with anything? Why does the elimination of an entire class of arms matter when other classes of arms are available. The handgun itself isn't a protected class like a class of people. Well, it kind of is now. Because people want them, they have a right to them. That's Scalia's argument "It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon." If they didn't want them so badly, they wouldn't have a right to them. But because they really really want handguns, it is impermissible to take them away.

    Scalia ignores the fundamental issue here: the right of the handgun owner to maximize his/her own survival is actually somewhat at odds with the rights of the people living with or near the handgun owner to maximize their own chances of survival. A loaded gun poses a threat to people inside a house relatively more than it poses a threat to people not in the house.

    The core issue that Scalia ignores is that the reason handguns are so popular (Scalia conveniently ignores the unpopularity of handguns with people who conclude they are too dangerous to have in the home) is because people are not rational survival optimizers. They are bad at assessing relative risks. They typically don't know how to do it rationally.

    A municipal handgun ban is essentially a home safety law, intended to protect people living inside a home from the consequences of having people with guns living with them. The majority Heller opinion steamrolls their rights.
    Last edited by Jabbadabbado, Feb 1, 2013
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  16. Condition2SQ Jedi Grand Master

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    I possess neither the interest in the subject nor the erudition to significantly contribute to the discussion regarding the relevant jurisprudence pertaining to the Second Amendment, but in terms of the practical and ethical arguments regarding gun ownership, this (and the follow-up FAQ is the most balanced piece I've come across. I certainly don't agree with all of the author's conclusions, but it seems to cover all of the typical pro and con arguments and may provide a useful starting point for discussion.
  17. Jabbadabbado Manager Emeritus

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  18. LostOnHoth Chosen One

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    Alrighty then, let's get to it.

    Firstly, let's talk briefly about Miller. I'm not sure I agree with your proposition that the minority in Heller failed to consider the context of Miller or that "relying on Miller" was in any way " a problem". The minority spent some time discussing Miller simply because it was the last occasion the Supreme Court had explored and examined the interpretation of the Second Amendment in any great detail. As explained by the minority, the decisional background to Miller is largely irrelevant to the overarching fact that Miller contains a reasoned decision of the US Supreme Court on the proper interpretation of the Second Amendment. In this regard, the minority stated that:

    I have to agree. If anything, the absence of a plaintiff or counsel for the plaintiff, obligates the Court to bend over backwards to consider the subject matter of the appeal. The same thing happens when a party is represented by lousy lawyers. You often see in any litigation an imbalance between the quality of the representation of the parties. The Court is also quick to see this and compensates accordingly, so that there is at least a perception of justice. On this basis, it is wrong to simply disregard the precedent value of a decision because of the absence of adversarial presentation or the poor quality of the adversarial presentation.

    The full opinion in Miller is linked below:

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

    As you can see, the decision of the Court in Miller is reasoned an cites quite a range of authority and historical sources. in fact, the Court cites some of the same authorities and historical sources cited and relied upon by the majority in Heller, such as Blackstone's commentaries for example.

    The minority in Heller made the following comments in relation to Miller (I've exchanged the term "the Court" for "the majority" for the purposes of clarity to the discussion):


    I couldn't agree more. On this basis, I must respectfully disagree with your contention that Miller should not be relied upon simply because of its decisional background. If the decision itself lacked reason or a logical ratio decidendi then I would concede the point, but on my reading of the decision I do not find any such a deficiency.

    Secondly, you have referenced the Dred Scott decision and have highlighted a few sentences here and there to support an "individual right" interpretation of the Second Amendment. I don't see how that case is in any way relevant to the Second Amendment or its proper interpretation. On the subject of the "individual" versus "collective right" distinction, I agree with the minority when its states:

    The scope of the right is really the fundamental point. That is why I disagree with the majority in Heller. Quite simply, if the scope of the right extended to a right to possess and use guns for nonmilitary purposes like hunting and personal self-defense then why doesn't the language of the Second Amendment make explicit reference to this right? The opportunity to do so was presented and rejected by Madison when the Second Amendment was drafted and ratified. On this basis, the most logical conclusion is that that the Second Amendment was intended to apply to individuals but only for the purpose of individuals participating in a Militia.

    This is why I think that the majority decision in Heller did in fact come from nowhere.

    Jabba, I think that the framers no doubt had a deep appreciation for the use of long guns for homestead defence but I also think that the framers formed the view that such considerations have no real place in a Constitution. What is the purpose of the Constitution and what was the purpose of the various amendments?

    There has always been a common law right of self defence in the US, inherited from old English law. Why bother incorporating such a right into a document which is intended to establish a framework for government? It is clear that the purpose of the Second Amendment was to ensure that the States could not be disarmed by political process. That is why specific references to "self defence" were considered but rejected by the framers.

    My apologies for the length of this post. [face_coffee]:-B
    Last edited by LostOnHoth, Feb 2, 2013
  19. Jabbadabbado Manager Emeritus

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    I understand the "considered but rejected" argument in the minority opinion concerning the explicit reference to individual rights for self defense. My interest is the vagueness of the amendment as written representing an acceptable compromise to those who wanted that self defense language written into the amendment. I don't have any expertise about the evolution of the English language since the late 18th century, but the amendment doesn't really mean much at all. It could have been written clearly to define a right of states and their collective People to remain armed for the purpose of defending the sovereignty of States against the tyranny of a standing federal army, but wasn't.

    What Scalia calls the prefatory clause and the operative clause I think of merely as a subordinate clause followed by a main clause. Scalia offers his translation: "Because a well regulated militia..." Another translation could easily be. "The right of the People, to keep and bear arms toward the maintenance of a well-regulated militia, shall not be infringed."

    The sentence could have been written any number of ways for clarity, but wasn't.
  20. Mr44 VIP

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    LOH, out of your post, my reply here applies to one section of it. See, the fatal legal flaw in your "states" argument is that it ignores that the Constitution itself is carefully and deliberately organized along specific lines. Article Four in the body of the Constitution outlines the relationship between the states and the federal government. If the concern was "state disarmament," then it would have been outlined here.

    Now, the entire point of the Bill of Rights was that all of the concerns apply to individual protection. Not only that, but under the Constitution, the 10 Amendments all embody the John Lockean, Thomas Paine-esque idea of "Natural Rights." That is to say that rights that all individuals possess independent of any laws or government. Locke would attribute these rights to philosophy of simply being human. Paine, while not belonging to any specific church, might say that they come from a higher power. But whatever the source, the intent is clear.

    It would implausible, and downright strange, that the other 9 Amendments all come from a higher power and apply directly to the individual, but somehow, alone in isolation, the 2nd Amendment's scope stops at the collective state level. So the issue is not that Amendments 1, and 3-10 all apply to the individual, but the 2nd doesn't. Logically, the 2nd Amendment must be an individual protection. The issue is how far of an individual protection the 2nd Amendment is, in relation to the limitations that are also place on the other 9 Bill of Rights in comparison.
    Last edited by Mr44, Feb 2, 2013
  21. LostOnHoth Chosen One

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    Was there a compromise to those who wanted that self defence language written into the amendment though? I don't think there was. In the Miller decision, the Court recounts the relevant part of the Constitution which granted Congress the following power:

    The prevailing view at that time was that a civilian Militia was the most appropriate form of defence for the nation, hence the power of Congress to provide for the calling and regulation of a Militia. As there was also a fundamental distrust of the concept of a "standing army", that is, a professional body of soldiers distinguishable from a civilian militia force, then the whole purpose of the Second Amendment was to assure the continuation of the civilian Militia by making it impossible for Congress to take away their arms.

    On this basis, and with this intent in mind, the Second Amendment was drafted. When you read the language of the Second Amendment in the light of the original power granted to Congress regarding Militias, I think the wording makes perfect sense and clearly defines a right of the people to remain armed for the purpose of maintaining a Militia, a Militia being necessary to the security of a free State. When you interpret it with the "mischief rule" in mind, any ambiguity disappears in my view.

    I disagree. The minority in Heller addressed this point and so rather than paraphrasing I will quote that part of the opinion below:



    I agree with this analysis, in particular that the words "the People" as used in the Second Amendment 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.
    Last edited by LostOnHoth, Feb 2, 2013
  22. SuperWatto Manager Emeritus

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    Couldn't agree more. In fact, I said the very same thing - albeit completely amateurish - in the gun control thread.

  23. Jabbadabbado Manager Emeritus

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    Lost, you've convinced me. I'm sorry I ever doubted you or your crazy ideas about U.S. constitutional law.
  24. LostOnHoth Chosen One

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    You are right to doubt me as I am just rehashing the opinion of a minority dissenting opinion which was rejected by the majority and has therefore been consigned to the trash bin of jurisprudential history. :_| @Kimball_KinnisonK and @Mr44 can take comfort in the fact that their views are the prevailing law of the land.

    In Australia, we had this High Court judge called Justice Michael Kirby who was known as "the Great Dissenter". He basically dissented on every case handed down by the Court. I think in many ways Australia would be a different country if Kirby's dissents ever became law. The same is true for Heller. It's interesting that I agree with Scalia so fundamentally on his views of the "Free Exercise" clause in the First Amendment, but violently disagree with his opinion of the Second Amendment in Heller. For @Kimball_Kinnison, it is exactly the opposite!
    Last edited by LostOnHoth, Feb 2, 2013
  25. Mr44 VIP

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    I'm sorry LOH (with respects to Jabba as well), but you're drawing a conclusion from the portion you highlighted that is just about the exact opposite of how the Supreme Court actually ruled. So I guess the question is do you care more about agreeing with the deliberation, or the actual decision? Correct me if I'm wrong- I'm being a bit lazy here and not looking at the actual decision-but your highlighted portion comes from Steven's minority dissenting opinion, not the controlling one for the case. (it might have been Breyer, IIRC, who had about the most restrictive dissent)

    See, the issue is that the portion you linked to above also matches up to the wording with similar provisions under the Bill of Rights. For example, take the 4th Amendment, as mentioned in your excerpt. According to the specific wording of that Amendment, the government would only be prevented from carrying out "unreasonable searches" against tangible things such as "papers." The government then, should have unlimited access to intangible things like telephone conversations and electronic media. But everyone, including Justice Stevens, recognizes that the wording doesn't limit the function of the Amendment itself, because the entire Bill of Rights is designed to proclaim rights that already exist.

    This is why I'd say that Steven's interpretation that you highlighted is utterly incorrect. Or at best, it's extremely cherry picked. The concept of "militia" as listed in the 2nd Amendment is all inclusive, and is interchangeable with the idea of people. If every able bodied person over the age of 18 is in the militia, then every able bodied person over the age of 18 has the right to possess firearms, at least according to the accepted definition. This is why Stevens is also wrong by improperly focusing on limitations (or lack thereof) expressed in the Amendment. The 2nd Amendment doesn't have to specifically list every incident where guns can be used by the individual,(such as spelling out a laundry list of "hunting," or "self-defense" or "sport shooting,") and all others are excluded, because the Amendment itself doesn't care.... " the right of the people to keep and bear arms, shall not be infringed." Outside of being in the collective militia, the use of firearms is dependent on the owner- no matter if its hunting, or defense, or not ever using it, or any other reason within limits of the law. It's no different than any other right expressed in the Bill of Rights.