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

Please don't put words into my mouth. I didn't say that it should be disregarded solely on the basis that Miller never made arguments to the Supreme Court, only that you need to examine the actual ruling in that context, especially as it applies to the actual holdings (as opposed to the dicta) in the ruling.

I still hold that Miller is a deeply flawed ruling, and I'll explain why in a moment.

One of the biggest flaws in Miller is that the Court only examined the historical context of the term "militia". There was no similar examination of the term "people". In fact, the word "people" only shows up twice in the Miller ruling. Once in a misquote of the Second Amendment (which refers to "the right of people" instead of "the right of the people"), and once more in a footnote (referring to a case by name - People v. Brown).

Part of the problem here is that the minority dissent only partially quoted the ruling in Miller. The full paragraph gives the small phrase that they did quote a very different meaning. Specifically, they didn't hold that the Second Amendment didn't apply to something unconnected to the militia. What they said was:

They never said that it had to be connected to militia service, only that they couldn't definitively say one way or the other. That is a critical distinction.

Dred Scott is important and relevant because it shows that there is a long history of viewing "the right of the people to keep and bear arms" as an individual right not connected to service in a Militia. At the time of Dred Scott (1857), free blacks were not considered part of the militia by law. That didn't happen for another 5 years, in the Militia Act of 1862. And yet, the quotes I gave demonstrate that if Scott were a free citizen, he would have shared in that right (described as "the right to ... keep and carry arms wherever they went").

When you look at Dred Scott in context of the Militia Acts (both of 1792 and 1862), it makes it clear that the understood "scope of the right" went beyond connection with military service.

The problem with your argument here is that if the purpose of the Second Amendment was to ensure that the States couldn't be disarmed, then why didn't they say so explicitly? Why didn't they refer to "the right of the States to keep and bear arms" instead of "the right of the people"?

I will say this much, that I don't think Heller got things completely right. Personally, I think it would have been stronger basis to uphold the right to keep and bear arms under both the Second Amendment and the Tenth Amendment. As you said, the common law right of self defense was inherited from English law. That right works in conjunction with the core purpose of the Second Amendment (which was to maintain an armed populace against the potential for tyranny by the government, on whatever level), but it is in parallel to it. It is much like how the Fourth Amendment right to be secure in your person, houses, etc against unreasonable searches combines with a common law right to privacy under the Tenth Amendment to cover such matters as abortion.

However, on a functional level, it really makes little difference. Any government restrictions that would limit the keeping and bearing of arms for self defense would also functionally limit the keeping and bearing of arms against the potential for government tyranny. The handguns at issue in Heller are functionally identical to those carried by our military as a personal sidearm. The DC ban covered the Beretta 92FS (virtually identical to the military's standard-issue M9 pistol) and the Colt 1911 (the military's previous standard-issue pistol) just as much as any other pistol.

As far as applying those rights to the States (in McDonald), it makes almost no difference because of how the right to keep and bear arms was understood at the time of the passage of the 14th Amendment. As Dred Scott shows above, it was already understood to protect the right of any citizen to "keep and carry arms wherever they went", and it was the understanding at that time which was then made effective against the states.

Mr44 - as per my previous posts, I am arguing the position of the dissenting minority decision in Heller. I understand that the majority rejected this view, but it was a 5-4 decision so it's not like there was an overwhelming opinion of the Court with one crackpot dissenter. If one more judge agreed with Stevens, then the opinion of Stevens (and the other dissenters) would have been the controlling decision and the prevailing law of the land. I happen to think that Stevens got it right and Scalia got it wrong. I'm not sure I understand in the least what you are saying with respect to the Fourth Amendment in your post. The extract from the minority decision in Heller that I posted is talking about the meaning of the words "the people" as used in those particular constitutional provisions.

The first sentence of the minority decision on this point says it all:

"The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendment s. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment —“the term unambiguously refers to all members of the political community, not an unspecified subset.”

The minority then goes on to explain why this is not the case. In a nutshell, Stevens argues that the phrase "the people" is used differently in relation to each particular constitutional provision, according to the objective of the amendment (again, this goes back to the concept of the "mischief rule"). The meaning of the phrase "the people" in the Second Amendment is derived from the object announced in the preamble, that is, the collective action of individuals having a duty to serve in a "well regulated militia" the purpose of which was to protect the States’ share of the divided sovereignty created by the Constitution. That is the scope of the right which is protected. The people, individually, have the right to keep and bear arms, but the scope of that right does not extend to the use or ownership of weapons outside the context of the collective activity of service in a well-regulated militia, ie, the right does not extend to self defence or other civilian purposes.

The First Amendment and the Fourth Amendment have completely different objectives and are structured differently as well so it is not correct to say that the term "the people" must necessarily have the same meaning as used in all of those constitutional provisions. The Second Amendment must be read with its objective in mind, which is the maintenance of a "militia" comprised of people of each and every State, as a bulwark against the potential tyranny of a standing army. It need not say anything more, which is why it doesn't list every incident where guns can be used. The regulation of guns is a matter for the States, the Second Amendment is simply a constitutional block against legislation which would purport to disarm the people of each and every State so as to render a civilian "militia" ineffective.

Really quick, and hopefully I'll get to a longer reply tomorrow, but to clarify one thing:

I mentioned the 4th Amendment with respect to Stevens because my point was that Stevens applied your litmus test to the 2nd Amendment in isolation- going so far as saying the opposite with regards to the other amendments. My example didn't have to be limited to the 4th, pick any. He even refutes his own point to the 2nd, with regards to the other amendments, but then basically excuses any contradiction away by basically saying "but these are guns, so I'll overlook the faults of my opinion." This is why he ended in the minority opinion, and Scalia indeed did get it right. I'm not so sure I'm even explaining this correctly either. I'll think about it. Basically, what I'm saying is that if you applied Steven's 2nd Amendment litmus test to any other Amendment, they would break down as well. Because none of the Amendments cover all possible variations in a laundry list kind of way, and none of the Amendments were meant to be used this way.

I'll use a REALLY silly example here on purpose. The 3rd Amendment forbids the government from quartering soldiers in people's homes:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Using the nit-picky criteria established by his dissenting opinion, Stevens would argue that Sailors of the US Navy wouldn't be covered under the 3rd Amendment because the amendment itself only says "soldiers." Of course, any Supreme Court majority opinion relating to the 3rd Amendment would cover all military personnel-soldiers, sailors, marines, Air Force Airmen, or if, in the future, hypothetical troops were called "rocket commandos." That's the point.

I don't get what you are saying at all. The only "litmus test" and "nit-picky criteria" Stevens used is to look at the preamble to the text of the Second Amendment and then try and establish, based upon the historial sources, what the Framers intended by such language. As you know, the preamble, the entire objective of the Second Amendment as written, relates to a "well regulated Militia". That is the scope of his enquiry. Perhaps when you have had a chance to gather your thoughts you can expand on this further but what you are saying in your last post makes no sense to me.

@Kimball_Kinnison said:

I'm not sure I agree that this is a "flaw" though. I think this focus on the meaning of the term "the people" in the Second Amendment is somewhat misguided, given that the clear objective of the Second Amendment was to maintain a "well regulated militia". With this objective in mind, it makes sense that the Court would focus on the historical context of the term "militia". It seems pretty clear to me that the term "the people" simply relates to the individuals who are entitled to participate in the collective activity of a civilian militia. Accordingly, the purpose of any judicial exercise in ascertaining the scope of that right would have to involve defining what is meant by a "militia". That is what the Court did in Miller.

Kimball_Kinnison said:

I don't read it that way at all, it's just a form of expression that has been used in the opinion. They could just have just as easily stated "it can't be said" or "we cannot agree" or "we do not consider". In the context of the entire paragraph, the Court is clearly saying that in the absence of any evidence that the weapon has a relationship to the preservation of a militia, the Second Amendment does not guarantee the right to keep and bear such as weapon. The words "we cannot say" is just a form of expression, it is clearly not intended to express uncertainty.

Kimball_Kinnison said:

But Dred Scott isn't even about the Second Amendment. On this basis alone, anything said in that decision is obiter and has no probative value in relation to ascertaining the meaning of the Second Amendment or what the Framers intended. I guess that is why that decision does not appear to have been cited in the Heller decision at all. I guess it doesn't really matter what people thought about the Second Amendment meant after its ratification, it's what the Supreme Court says it means when the Supreme Court actually considers the meaning of the Second Amendment, which did not occur in any great detail until Miller and then Heller. That is why the minority is critical of the amount of time Scalia gives to analysing post enactment commentary about what was understood after the constituonal provision was ratified - what is important is what was understood by the Framers when the amendment was drafted and enacted.

Kimball_Kinnison said:

Because the concept of a "State" is a form of political association, it is a social construct incapable of keeping or bearing arms in its own right. The purpose of the Second Amendment was to ensure that the people who comprised the State militia, as opposed to a federal standing army, couldn't be disarmed. In the majority decision, Scalia explains what is meant by the term "free state" as follows:

In this context the term "State" means the "people" composing each and every State. As the minority stated in its opening paragraph, the question posed by the Second Amendment is not whether it protects a collective right or an individual right, the minority agrees it protects a right that can be enforced by individuals, the question is what is the scope of that right.

First of all when you read "well regulated militia", what do you think they mean by that? Because I'm willing to bet that you aren't using the historical meaning of that phrase. (For examples of its historical usage in the same time period as the passage of the Second Amendment see this link.)

Second, I would again disagree with you about the "clear objective of the Second Amendment". The goal of the Second Amendment wasn't to maintain a "well regulated militia". It was to maintain "the security of a free state". It mentioned "a well regulated militia" only as a means to that end. Even your own later quote from Scalia supports that, saying that it refers to a free people.

So, by your own admission and arguments, the Second Amendment refers to "the people" in three different ways associated with the right to keep and bear arms. First, it references the militia, which consisted of all able-bodied men. Second, it referenced a "free state", which means a free polity or free people. Third, it refers to the right as being a right of the people.

All of that strongly supports what I said in my last post regarding the purpose of the Second Amendment. It was primarily a bulwark against tyranny, whether from outside the nation or within. The Second Amendment was meant to protect the right of the people to bear arms in order to remain free from such tyranny. It doesn't limit itself to only the federal government (like the First Amendment did), nor does it say anything about allowing the states as political bodies to control that right only for use against the federal government.

I'd bet you anything that the main reason that Dred Scott wasn't mentioned in Heller is because it is historically blamed for triggering the Civil War, not because it is irrelevant. But it still remains valid precedent insofar as the Court hasn't overturned it. (It was, however, made moot by the Thirteenth Fourteenth Amendments.)

However, just because the primary topic of Dred Scott wasn't focused on the Second Amendment doesn't mean that it have probative value. Again, it provides a clear historical context for how the right to keep and bear arms (which it does mention, as I pointed out) was viewed as equal to the other provisions of the Bill of Rights. That context is part of the Dred Scott dicta, but it provides that historical window into how it was viewed and treated. After all, they specifically said that if Dred Scott were a citizen of the United States, then he would have the right to "keep and carry arms wherever [he] went".

You missed my point here. Your claim that I was responding to was:

Here, you specifically refer to "the States", using a definite article, which clearly means the individual political entities that make up the United States as a whole. That is quite different from referring to the people as a whole. Your claim was that the Second Amendment was to keep the States from being disarmed, rather than the People. This is even clearer by your repeated support for the Heller minority, which was arguing for allowing the State (in that case, the Federal government as DC is directly under federal control) to disarm the People. They repeated that sort of argument in McDonald, arguing that the States as political entities could disarm the People.

In that context, I ask you again: if the purpose of the Second Amendment was "to ensure that the States couldn't be disarmed", then why didn't they say so explicitly? They didn't shy away from explicitly protecting other powers granted to the States, and the language that they used (as you've demonstrated) all relates more to the people who make up the population of the states rather than the political bodies themselves. If that is the case, then the scope of the right is far stronger, especially when you look at the full context of Heller - a complete ban on handguns. DC was almost completely disarming its residents (you know, "the people"), exactly like Chicago was in McDonald. Even if we apply the arguments that you are making, how does any of that justify upholding such bans as the minority opinion you cling to would have done?

Finally, I'd like to see you address my point that you skipped over, about how I do think Heller missed the point a little by glossing over the involvement of the Tenth Amendment. After all, the "right to privacy" that is the basis for rulings protecting contraception and abortion is found in the combination of the Fourth and the Tenth Amendments. The right to privacy has a strong basis in common law. Why isn't there a similar conjunction between the Second and the Tenth Amendments regarding the right to keep and bear arms and the right to self defense?

You just answered what I'm saying though as it relates to the dissenting opinion. KK just covered the larger issues above, especially as they relate to the supporting idea of privacy.

The entire objective of the Second Amendment has nothing to do with a militia, and everything to do with not abridging the right of the people to bear arms. Mentioning the militia is just a way to substantiate the Amendment, which is no different than what any of the other 9 do. Because the entire reason that the Bill of Rights exist is to frame individual rights that exist above the US form of government, but are supported by it.

In essence, Stevens picked one aspect of the text itself in isolation, rather than looking at the entire Amendment in context... ie.. it would be no different than ignoring the entire objective of the 4th Amendment and acting like the definition of "papers" is what really controls the amendment itself. Or ignoring the right outlined in the 3rd Amendment and only focusing on what the definition of "soldier" means simply because "Airmen" and the Air Force itself didn't exist back in 1791. All of that would be absurd, which Stevens had to know when he used it as a basis for his opinion.

You have to understand why Heller was even brought as a suit against DC in the first place. If one wants to look at details, the transcripts frame what the Justices were looking for. Remember, the restrictions that DC placed on its residents applied even in their private homes, and the law itself didn't differentiate between legal and illegal activities. The handgun itself was secondary in Heller, because the majority opinion focused on the overly broad intrusion by the government. Once the Justices asked how a person could be made to be a criminal simply by keeping a gun in his own home with no other illegal intent, and the lawyer for DC basically said "well, I don't like guns," the Supreme Court only had one way to rule. The majority opinion in Heller matched up to other SC decisions such as Lawerence v Texas, which struck down a prohibition against sex in one's private home. One could interchange the subjects of Heller, or Lawerence, or others, because the Supreme Court is very reluctant to support blanket bans.

However, what Stevens did in the minority opinion was to ignore all of the previous decisions, and basically try and carve out a "I don't like guns either" exception. It's actually kind of scary that he got 3 Justices to go along with him. It's the kind of dissenting opinion that was tailor made for the anti-gun person who reads it, but, had it actually been the controlling majority opinion, would have set a very dangerous precedent, and had the potential to turn around and bite those same singularly focused anti-gun people on the butt with regards to other issues.

You know, I just spent the better part of an hour typing out a response, only to lose the lot by accidentally clicking on something. Normally I type out in a word doc and then paste into the thread but this morning I just typed into the thread. I'm not going to start again right now, I'll leave it until later.

OK - here goes again:

KK, just to clarify, by my own admission and arguments I am saying that the meaning of the phrase "the people" in the Second Amendment is derived from the object announced in the preamble, that is, the collective action of individuals having a duty to serve in a "well regulated militia" the purpose of which was to maintain the security of a “free state”. That is the scope of the right which is protected. The people, individually, have the right to keep and bear arms, but the scope of that right does not extend to the use or ownership of weapons outside the context of the collective activity of service in a well-regulated militia, ie, the right does not extend to bar legislation which regulates the use of firearms for self defence or other civilian purposes.

The proposed ban in DC dealt with handguns specifically and as I understand it was intended to prohibit unregistered handguns to be kept in the home and to provide that registered handguns be kept disassembled or with a trigger lock.

In my view, this is does not offend against the right to keep and bear arms as contemplated in the Second Amendment because the legislation only relates to a certain category of firearms, that is, handguns, and does not prohibit them outright or prohibit ownership of other kinds of weapons. In short, the DC law related only to the manner in which handguns were used for strictly civilian purposes, ie, for self defence in the home. As there was no blanket ‘disarmament’ then the Second Amendment is not violated as the ability of the people to maintain a well regulated civilian militia was not adversely affected.

I think we both agree on what was intended by the Second Amendment, in particular, I agree with you when you state that the Second Amendment “was primarily a bulwark against tyranny, whether from outside the nation or within. The Second Amendment was meant to protect the right of the people to bear arms in order to remain free from such tyranny.”

However, where we differ, is that I think when you consider the historical sources, it is pretty clear that the overwhelming consideration for the Framers was the perceived threat to the liberty of the people posed by the creation of a national standing army.

Again, when you look at interpreting the meaning of any statutory provision, whether it be of constitutional character or not, you have to look at the “mischief” which the provision was intended to cure or address. If it was the intention of the Framers to safeguard the right of the people to keep and bear arms for self defence in the home or for other civilian purposes, then it follows that the wording of the statute would have included such a reference so as to make the scope of the right clear and unambiguous. As I mentioned before a few times, the opportunity to do this was presented, considered and rejected. The Second Amendment, as drafted, is clear and unambiguous when you consider the drafting history. Whilst I think the majority decision is well reasoned I think it is ultimately unconvincing, but I certainly do not cry "judicial activism"!

I don’t believe it was ever the intention of the Framers to bar legislation which regulates the use of firearms for civilian purposes, in fact, US history, going back to the very early days, is replete with regulations and ordinances which banned the carrying of handguns within city limits and banned the keeping of gunpowder in the home.

Just to touch on this matter of my reference to “the State” which you have taken particular issue with. I want to clarify that “the State” in this context necessarily means the people who make up the population of the State, as the “State” itself is a political and social construct. That is why the Second Amendment does not say “the right of the States” it means the “the right of the people” who compose each and every State.

As to the rest of your post and to Mr44’s post, I will definitely address these points, but I have run out of time, plus I need some time to properly consider what you are both saying, particularly with respect to the other Amendments. Remember, I’m not from the US so I haven’t grown up with this stuff!

The problem with that argument is that you can't restrict the other civilian purposes without restricting the ability of the people to bear arms as part of a well regulated (i.e. meaning "properly functioning", not "controlled by government regulation") militia.

Your understanding would be incorrect. The DC law banned all possession of handguns, including in the home. Other firearms (such as a shotgun or hunting rifle) could be kept at home, but only if it were essentially rendered completely inoperable by being completely disassembled.

Again, your understanding of the DC law is flawed here (see above). The law basically amounted to almost complete disarmament. Any guns that were allowed had to be maintained in an unusable state, even if they were actually needed for self defense. Handguns were completely prohibited.

If that were the case, then why didn't they say so in the Second Amendment? If they had wanted to restrict it in such a fashion, why didn't they do what some states did in their constitutions and actually reference the dangers of a standing army? (For example, Section 13 of the Virginia Constitution is the analogue to the Second Amendment, and it states, in part, "that standing armies, in time of peace, should be avoided as dangerous to liberty".)

You can't handwave the historical basis for the Second Amendment as applied to the common law right to self defense by saying that they should have said so explicitly on one hand, and then read in your own separate context that they also could have stated explicitly, but didn't.

And yet, as citations to mid-19th century cases (such as the Dred Scott decision) show, the Second Amendment was widely seen as applying to more than just arms connected to militia service. Dred Scott wasn't a member of the militia as it was defined by law (and wouldn't be until after 1862), and yet the Court specifically said that if he were a citizen he would have had the constitutionally-protected right to keep and carry arms wherever he went. Were they just ignorant of what you consider to be the true (more limited) scope of the Second Amendment? Or are you limiting the Amendment more than it was previously understood to be?

I'm sorry, but I don't buy that. The way you wrote it, you were clearly talking about "the States" (your words), which because of the use of the definite article "the" clearly makes it a reference to the political bodies.

At this point, you are nitpicking to avoid actually answering my question. I gave you one sample wording that they could have used to make your claimed point more explicit (which you obviously take exception to), but they also could have said "the right of the Militia to keep and bear arms", or some other wording to convey the same idea. As they wrote it, it doesn't do that.

And, once again, you have completely avoided the questions that I have asked you. Will you please stop trying to dance around them and give straightforward answers? I'm still very much waiting for your answer about the conjunction between the Second and Tenth Amendments.

I wish to make a public correction to this statement. I was partially inaccurate.

The DC law banned the possession of any handgun not registered on or before February 5, 1977, with exceptions given only for law enforcement and corporately-owned handguns (i.e. for security guards), and those had to be kept secured at the workplace.

In practice, the law operated the way I described and banned all possession of handguns in DC, but there was a very narrow exception for handguns registered before 1977.

It's been almost 2 weeks with no responses other than my posts. Are you still there, @LostOnHoth?

Additionally, I realized I made one other mistake. I meant to refer to the Ninth Amendment, not the Tenth. (For some reason, I keep wanting to swap the numbering on those two.)

In other news, the 7th Circuit Court of Appeals an an banc rehearing in Moore v. Illinois today. As a result, the 180-day stay on the panel's ruling is still in effect. Illinois has less than 5 months to pass a law allowing individuals to carry in one form or another before their current blanket prohibition is fully struck down as unconstitutional. The dissent in the denial is here. Discussion of the denial can be found here.

@LostOnHoth

I hope all is well with you. It's been over a month, and still no response. I still eagerly await your comments.