Another Second Amendment win in California

[The Norseman]

Evidence of what?

You gotta be kidding me.

Evidence of this: "The way I remember it is, for most of our history the Second Amendment was seen as conferring a collective right, not an individual right."

You said it, you may now defend it.

This is one of the issues that comes up with interpreting the Constitution exactly as the Founding Fathers intended it to be.

Slavery existed when the Constitution, the Bill of Rights and the various Amendments were written. Women also did not have the right to vote or to serve on juries.

Was that part of the natural laws, too? I don't think anyone would argue ** we should reinstate slavery or deny women the right to vote. Although it is clear the Founding Fathers accepted the existence of slavery and did not think women should vote.
Anyway, my point is, this whole concept that we are bound by and have always been bound by what the Founding Fathers thought, is nuanced and murky. There's room for reasonable people to disagree.

** - Actually I do think people would argue we should reinstate slavery or deny women the right to vote. In fact I expect to see that argument here very shortly!

Again, you are demonstrably wrong on this point of women voting, though it is a slight derail.

You are seriously coming across as not very knowledgeable about these issues.

 

[newyorkguy]

I'm just going to restate my original thought.

Court decisions in recent years are expanding individual rights to carry a gun. As an example I cited Heller that struck down a Washington D.C. law that had been on the books for thirty-three years. I asked if the issue was so clear why did it take thirty-three years to overturn the D.C. ban on handguns? Why did it take twenty-eight years to overturn Chicago's ban on handguns? The two laws were enacted in 1975 and 1982 respectively. Who was the Chief Justice of the U.S. Supreme Court in 1975 and 1982? Warren Burger. Below is his take on what the Second Amendment confers:

The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen....We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state...Link

Does this sound like a Justice who would've looked kindly on Heller? IMO that kind of a case would not have even been heard by the Burger Supreme Court. Times change. Now we have a very conservative Court, conservative in a way even Warren Burger could not have predicted.

Which brings me back to my original statement: recent court decisions are expanding individual rights to carry a gun. I don't see a problem with that statement. I really don't.

 

[Old man]

Now we have a very conservative Court, conservative in a way even Warren Burger could not have predicted.

FYI -

con·ser·va·tive (kən-sûr′və-tĭv) adj.
1. Favoring traditional views and values; tending to oppose change.
2. Traditional or restrained in style: a conservative dark suit.
3. Moderate; cautious: a conservative estimate.

Which brings me back to my original statement: recent court decisions are expanding individual rights to carry a gun. I don't see a problem with that statement. I really don't.

No, they're being conservative in their interpretations.

 

[Newtons Bit]

FYI -

No, they're being conservative in their interpretations.

Heh.

 

[The Norseman]

I'm just going to restate my original thought.

Court decisions in recent years are expanding individual rights to carry a gun. As an example I cited Heller that struck down a Washington D.C. law that had been on the books for thirty-three years. I asked if the issue was so clear why did it take thirty-three years to overturn the D.C. ban on handguns? Why did it take twenty-eight years to overturn Chicago's ban on handguns? The two laws were enacted in 1975 and 1982 respectively.

Asked and answered by others in this thread.

Who was the Chief Justice of the U.S. Supreme Court in 1975 and 1982? Warren Burger. Below is his take on what the Second Amendment confers:

Does this sound like a Justice who would've looked kindly on Heller? IMO that kind of a case would not have even been heard by the Burger Supreme Court. Times change. Now we have a very conservative Court, conservative in a way even Warren Burger could not have predicted.

Which brings me back to my original statement: recent court decisions are expanding individual rights to carry a gun. I don't see a problem with that statement. I really don't.

I guess we can quibble over the word 'expansion' versus 'clarification' but that's what it is. Those decisions clarify what is meant by the 2nd amendment's wording. There was some dispute and the court ruled on it.

I'd still love some evidence or writings from the founders or people contemporaneous to them that describes opposition to the concepts of the 2nd amendment as detailed in this thread.

 

[Vermonter]

You're denigrating people who may disagree with you in the first place which is poisoning the well. In other words, I may disagree with you but if I do so, I'm considered an oddball by you and perhaps others.

And more "common sense" eh? The only time I hear or read the phrase "common sense" is in relation to more restrictions and laws. The laws now... never enough.

Fair enough. However, I still believe that it's good practice to do background checks, unless you can state your reasons why it is NOT a good idea. I believe it's simply irresponsible to not do background checks, regardless of the situation.

 

[W.D.Clinger]

The court's unanimous decision in Richards v Prieto, the case being discussed within this thread, was a consequence of the 2-1 decision in Edward Peruta v County of San Diego.

The majority and dissenting opinions written for Peruta v San Diego provide a readable summary of Second Amendment history, including many citations showing the right to keep and bear arms is a "basic right" and/or rooted in "natural law".

Part IV of the dissenting opinion written by Judge Sidney R Thomas contains this summary of the majority opinion:

The majority...exceeds the bounds of Heller by determining that the Second Amendment protects at least some conduct outside the home. It then reasons that because the Second Amendment protects some conduct outside the home, states may not completely prohibit carrying handguns outside the home. The majority then examines the California regulatory scheme and concludes that, because California bans open carry in most public areas, it must allow concealed carry without the necessity of showing good cause....

Thomas then attacks this reasoning on grounds that strike me as exceedingly conservative in the sense of showing great deference to legislative intent and state power in general.

Thomas cites several decisions in which nineteenth or twentieth century courts have upheld complete or nearly complete bans on concealed carry. Many (most? almost all?) of those decisions said prohibition of concealed carry does not infringe upon the unquestioned constitutional right to bear arms openly in public.

Thomas's dissent then becomes rather technical:

The majority essentially concedes that the Plaintiffs’ challenge to San Diego County’s “good cause” policy fails unless we consider California’s regulatory scheme in its entirety....if California law permitted unrestricted concealed public carry, there would be no case at all.

Although the constitutionality of the entire scheme is at issue, the Plaintiffs did not name the State of California as a defendant, and the Plaintiffs have not complied with Fed. R. Civ. P. 5.1. Under that rule, if the state or one of its agents is not a party to a federal court proceeding, “[a] party that files a pleading . . . drawing into question the constitutionality of a . . . state statute must promptly” serve the state’s attorney general with notice of the pleading and the constitutional question it raises. Fed. R. Civ. P. 5.1(a). In addition, the district court must certify to the state’s attorney general that the constitutionality of the state statute has been questioned, and must permit the state to intervene to defend it....

Given the real essence of the Plaintiffs’ argument, they were required to comply with Fed. R. Civ. P. 5.1. They did not.

That is not the entirety of Thomas's dissent, of course, but I think it's the essence of Thomas's dissent.

Once Peruta v San Diego had been decided, Thomas voted with the majority in Richards v Prieto, the case being discussed here, making that verdict unanimous.

ETA: I should probably give the last word here to the majority opinion, footnote 19:

The dissent curiously misinterprets our opinion as ruling on the constitutionality of California statutes. We decline to respond to its straw-man arguments.

 

[WildCat]

The court's unanimous decision in Richards v Prieto, the case being discussed within this thread, was a consequence of the 2-1 decision in Edward Peruta v County of San Diego.

The majority and dissenting opinions written for Peruta v San Diego provide a readable summary of Second Amendment history, including many citations showing the right to keep and bear arms is a "basic right" and/or rooted in "natural law".

Part IV of the dissenting opinion written by Judge Sidney R Thomas contains this summary of the majority opinion:




Thomas then attacks this reasoning on grounds that strike me as exceedingly conservative in the sense of showing great deference to legislative intent and state power in general.

Thomas cites several decisions in which nineteenth or twentieth century courts have upheld complete or nearly complete bans on concealed carry. Many (most? almost all?) of those decisions said prohibition of concealed carry does not infringe upon the unquestioned constitutional right to bear arms openly in public.

Thomas's dissent then becomes rather technical:




That is not the entirety of Thomas's dissent, of course, but I think it's the essence of Thomas's dissent.

Once Peruta v San Diego had been decided, Thomas voted with the majority in Richards v Prieto, the case being discussed here, making that verdict unanimous.

ETA: I should probably give the last word here to the majority opinion, footnote 19:

Exactly as I noted earlier, Thomas in his dissent didn't object to the idea that there was a right to bear arms for self defense. His objection was that there was no right to carry a concealed weapon, he refused to consider that since California had banned open carry completely but allowed for concealed carry then rules had to be adopted to make that possible. And several sheriffs had made it impossible, except for a few select insiders, cronies, and campaign donors.

 

[newyorkguy]

One part of Peruta that made sense to me:

The majority wrote:

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions.

 

[WildCat]

One part of Peruta that made sense to me:

The majority wrote:

Are you ever going to get around to supporting your claim that the 2nd Amendment as an individual right for self defense purposes is a recent phenomena? Or do you concede it always meant what the Heller decision said it means?

 

[W.D.Clinger]

I commend newyorkguy for finding one sentence of a 64-page opinion that falls within his reading comprehension:

One part of Peruta that made sense to me:

The majority wrote:

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions.

That sentence opens the next-to-last paragraph of the opinion. The full paragraph goes on to quote Supreme Court opinions:

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing of arms to a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.

 

[newyorkguy]

Are you ever going to get around to supporting your claim that the 2nd Amendment as an individual right for self defense purposes is a recent phenomena? Or do you concede it always meant what the Heller decision said it means?

If it always meant what Heller said it meant there wouldn't have been any Heller.

 

[WWBDD]

Background checks are only required for handguns.

Wrong. You obviously have no clue what you're blathering about, yet you expect others to take you seriously?

 

[ben m]

If it always meant what Heller said it meant there wouldn't have been any Heller.

Also: if the meaning was as obvious as the Heller-bashers think it is, Heller wouldn't have had four dissenters.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms ...

The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption. Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980. See Lewis v. United States,

In respect to the first independent reason, I agree with JUSTICE STEVENS, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.

The fact that Heller was 5-4, rather than 4-5, means that at the moment it is the law of the land. The fact that Heller was 5-4, rather than 9-0, means that the majority reading is not somehow beyond debate, settled for all time, or somehow an fundamental truth so obvious that Hobbes could have derived it from pure logic starting from the state-of-nature.

I like to ask (and cannot recall getting an answer): if you think Heller is the end of any gun-rights debate, surely you must agree that Roe vs. Wade---a 7-2 decision---ended the abortion-rights debate by proving once and for all that the 14th Amendment protects individual medical autonomy. Right?

 

[WWBDD]

I like to ask (and cannot recall getting an answer): if you think Heller is the end of any gun-rights debate, surely you must agree that Roe vs. Wade---a 7-2 decision---ended the abortion-rights debate by proving once and for all that the 14th Amendment protects individual medical autonomy. Right?

Right, basically. May not have ended the debate, but it is settled law.

 

[WildCat]

If it always meant what Heller said it meant there wouldn't have been any Heller.

Do you actually believe that unconstitutional laws cannot be passed by governing bodies, or are you just pretending to be thick in an attempt to draw attention from the fact that you are unable to back up any of your claims in this thread?

 

[WildCat]

Also: if the meaning was as obvious as the Heller-bashers think it is, Heller wouldn't have had four dissenters.

The same 4 who thought that when the 1st Amendment said "Congress shall make no law... abridging the freedom of speech" it actually meant "Congress can make laws abridging the freedom of speech".

 

[W.D.Clinger]

I like to ask (and cannot recall getting an answer): if you think Heller is the end of any gun-rights debate, surely you must agree that Roe vs. Wade---a 7-2 decision---ended the abortion-rights debate by proving once and for all that the 14th Amendment protects individual medical autonomy. Right?

Right, basically. May not have ended the debate, but it is settled law.

To expand on that: Roe v Wade settled a core issue but initiated an era in which many courts struggled to apply Roe v Wade to the particular laws and circumstances of individual states, while some legislatures struggled to draft restrictive legislation that would pass court review.

The Heller and McDonald decisions are having a similar effect. As with Roe v Wade, the legal wrangling may continue for decades.

Unlike Roe v Wade, the Heller and McDonald decisions are unlikely to provoke opposition from major religions. As unreasonable as the second amendment debate has at times been, most arguments boil down to utility and/or fear (of one sort or another), which are in principle amenable to rational debate.

 

[ben m]

The same 4 who thought that when the 1st Amendment said "Congress shall make no law... abridging the freedom of speech" it actually meant "Congress can make laws abridging the freedom of speech".

(a) Ah, so when you agree with the Supreme Court justice, it means they're spouting immutable truths of nature, but when you disagree with a Supreme Court Justice you ignore them because they're stupid. Got it. If that's how it works for you, next time just go ahead and say "in my opinion" and don't bother with the sourcing, OK?

(b) As opposed to the 5 who thought that "a well regulated militia, being necessary to the security of a free State" was referring to a 16-year-old who enters a gun store with a wad of small bills and no ID?

(c) Laws regarding "yelling fire in a crowded theater", incitement-to-riot, pornography, copyright, threats, libel, truth in advertising, noise ordinances, licenses to practice medicine or law, etc., are abridgements of your right to free speech in service of other rights and public interests that conflict with an unfettered right to free speech. Are there any rights or public interests that conflict with an unfettered right to anonymous handguns? "Something, liberty, and pursuit of happiness" rings a bell, what's the first word?

 

[WildCat]

a) Ah, so when you agree with the Supreme Court justice, it means they're spouting immutable truths of nature, but when you disagree with a Supreme Court Justice you ignore them because they're stupid. Got it. If that's how it works for you, next time just go ahead and say "in my opinion" and don't bother with the sourcing, OK?

No, it means those 4 justices are willing to ignore the plain meaning of the Constitution for ideological reasons.

b) As opposed to the 5 who thought that "a well regulated militia, being necessary to the security of a free State" was referring to a 16-year-old who enters a gun store with a wad of small bills and no ID?

None of the justices said anything close to that, perhaps you should actually read the decision instead of aeguing from ignorance?

(c) Laws regarding "yelling fire in a crowded theater", incitement-to-riot, pornography, copyright, threats, libel, truth in advertising, noise ordinances, licenses to practice medicine or law, etc., are abridgements of your right to free speech in service of other rights and public interests that conflict with an unfettered right to free speech. Are there any rights or public interests that conflict with an unfettered right to anonymous handguns? "Something, liberty, and pursuit of happiness" rings a bell, what's the first word?

In all those cases there are conflicting rights and a balance has to be drawn. This isn't the case with Heller or Citizens United, where the exercise of the right at question has no impact whatsoever on the rights of others. Rather it amounts to a prior restraint, where restrictive gun and speech laws are upheld because they might at some future date conflict with the rights of others. "Public interest" is what judges used to uphold Jim Crow laws, can't have those negroes wandering the streets at night because they might do something to someone and we can't risk that now, can we?