Another Second Amendment win in California

[Gawdzilla Sama]

You don't believe in a right to self defense?

No, I believe in the necessity for self-defense.

 

[newyorkguy]

These arguments are all coming straight from Antonin Scalia's ruling in Heller (though without being attributed as such):

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people” Justice Scalia Link

Justice Stevens in his dissent answered this:

The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment , no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Justice Stevens Link

 

[ben m]

A cider press is not a subset of the printing press, sorry. I'm not seeing the relevance here?

Please note that the 1st Amendment uses the phrase "freedom of the press", precisely---not "freedom of the printing press", which would obviously exclude cider presses if it said so, but that's not what they said. It just says "press", right there in the text with the Founders' signatures underneath.

Silly right? Of course it is. This is a case where a close reading of the dictionary is misleading about what rights do and do not exist in the document. This is a case where a little historical context is not misleading about what rights do and do not exist in the document.

The same principle---context is useful---applies to ALL of the amendments, not just the 1st.

What were the Founders thinking about when they wrote the 2nd Amendment? Were they worrying about "the people" in their individual capacity (John Q. Farmer vs. the burglar) or were they worrying about "the people" in their capacity as respondants-to-miltia-callups (the Rhode Island Irregulars vs. Encroaching Pseudo-Monarchical Federalism)?

But, fine, I'll play your "subset" game for a moment.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

Given the suffrage laws of the time, only white male property owners could vote. "The people" in Article I is a smaller set of individuals than "the militia" which is a smaller set than "the people" elsewhere. Good thing we have context to help sort this out, right?

 

[WildCat]

These arguments are all coming straight from Antonin Scalia's ruling in Heller (though without being attributed as such):



Justice Stevens in his dissent answered this:

Wow, just wow... Stevens thinks "the people" means "the militia" because a person can't assemble?

 

[WildCat]

Please note that the 1st Amendment uses the phrase "freedom of the press", precisely---not "freedom of the printing press", which would obviously exclude cider presses if it said so, but that's not what they said. It just says "press", right there in the text with the Founders' signatures underneath.

Silly right? Of course it is. This is a case where a close reading of the dictionary is misleading about what rights do and do not exist in the document. This is a case where a little historical context is not misleading about what rights do and do not exist in the document.

The same principle---context is useful---applies to ALL of the amendments, not just the 1st.

You're stretching that argument so thin you may as well be Stretch Armstrong. Anyway, has there ever been attempts to restrict the freedom of the cider press? Has it ever been an issue?

What were the Founders thinking about when they wrote the 2nd Amendment? Were they worrying about "the people" in their individual capacity (John Q. Farmer vs. the burglar) or were they worrying about "the people" in their capacity as respondants-to-miltia-callups (the Rhode Island Irregulars vs. Encroaching Pseudo-Monarchical Federalism)?

But, fine, I'll play your "subset" game for a moment.

Given the suffrage laws of the time, only white male property owners could vote. "The people" in Article I is a smaller set of individuals than "the militia" which is a smaller set than "the people" elsewhere. Good thing we have context to help sort this out, right?

Nowhere in Article 1 is "the people" defined as males. It was state laws that prevented women from voting, not the Constitution or federal law. And women were certainly counted as persons in the Census as far as determining representation.

 

[The Norseman]

Right! That's the sort of thing that can happen, of course, in a country where gun ownership is regulated by legislature and not by the Constitution. If the voters of Idaho are happy with loose gun laws, that's what they'll get. The voters of Washington DC wanted stricter gun laws---it was not some federal imposition---but Heller overruled them. Weird, huh?

Part of the problem is that Washington DC is not a state and so therefore cannot be treated as such. Why the USSC decided to take the case is not known to us, but the ruling is clear, though divided.

Sorry, maybe I was unclear. I was referring to the prefatory language---the "security of a free state" clause, which is over and over again attached to something obviously meaning a collective right. Stevens dwells on the militarity of the "keep and bear" phrase, but that's not what I meant to refer to. I recognize that the "defense of themselves" language is in many state constitutions. (Vermont's also mentions hunting rights.)

Are you reading these words as intended in the 1700s or through the lens of the 21st century?

Last time I saw numbers, something like 70-80% of Americans supported closing the private-sale loophole. Still hasn't happened, has it? Rural voters do have disproportionate impact, thanks to the Senate. Fervent single-issue rural voters have an even more disproportionate impact.

This "private-sale loophole" phrase tells me you might very well be ignorant of actual private sales. Are you aware that there are still laws in place prohibiting even private sales to people who are not able to own firearms? Are you aware that ordinary citizens do not have access to the national list of prohibited persons as gun shops do? Nonetheless, a private seller can be held liable if later it is found out that the seller sold the firearm to a prohibited person. The best a private person can do is check a driver's license to be certain the buyer does not have legal residence from another state.

So I suppose you can petition the government to allow access to the prohibited persons list.

(I'd bet that, in a nationwide referendum, with equal advertising/voter-education on both sides of the question, you'd also get majority support for:

a) Federal gun-sales recordkeeping
b) Liability laws and/or criminal prosecution of irresponsible sellers
c) Allowing cities to pass their own gun laws (the way we do with alcohol laws)
d) A few minimally-effective and mostly-symbolic bans (large magazines, silencers, probably something to do with 3D printing) that people are disproportionately passionate about on both extremes.)

As I said, your a) and b) and c) are already covered, though your c) is dependent on certain states. Your d) is just ridiculous because it is shown to have no impact on crime at any level.

Given the suffrage laws of the time, only white male property owners could vote. "The people" in Article I is a smaller set of individuals than "the militia" which is a smaller set than "the people" elsewhere. Good thing we have context to help sort this out, right?

You are demonstrably incorrect regarding voting during the drafting and some time after the drafting of the constitution. Why people continue to bring up this myth is sometimes rather frustrating.

 

[newyorkguy]

Wow, just wow... Stevens thinks "the people" means "the militia" because a person can't assemble?

Why don't you read Heller for yourself?

As for what the founders were thinking when they wrote the Second Amendment, again, nobody knows conclusively. No one can know. That's why we have Heller. That's why we're having this discussion.

 

[Cylinder]

And women were certainly counted as persons in the Census as far as determining representation.

...or actual states, according to one's interpretation.

 

[newyorkguy]

Write me an example of a 1790 Federal law ordering the disarmament of "the New Hampshire militia".

Congress passed such a bill in 1792.

No they didn't. The militia acts of 1792 dictated how the state militias could be mustered under Federal command; they disarmed nobody.

Cylinder would you care to revisit this? Did "Congress pass such a bill in 1792" or didn't they?

 

[ThunderChunky]

Please note that the 1st Amendment uses the phrase "freedom of the press", precisely---not "freedom of the printing press", which would obviously exclude cider presses if it said so, but that's not what they said. It just says "press", right there in the text with the Founders' signatures underneath.

Actually what the 1st precisely says is:

"; or abridging the freedom of speech, or of the press;"

That's all the context you need to know they don't mean cider press. The "press" is a subset of speech.

 

[Cylinder]

Cylinder would you care to revisit this? Did "Congress pass such a bill in 1792" or didn't they?

By what authority did Pres. Washington - relying on his (and his advisor's) contemporary knowledge of the new Constitution - disarm and disband the various militias that rebelled against the newly-asserted federal authority?

 

[ben m]

Actually what the 1st precisely says is:

"; or abridging the freedom of speech, or of the press;"

That's all the context you need to know they don't mean cider press. The "press" is a subset of speech.

Well, if you follow Scalia's argument you could read "freedom of the press" in isolation, then ask whether the other clauses specifically remove cider presses from consideration. Does "freedom of speech" somehow cancel or remove the cider-press rights of the subsequent clause? No.

That's stupid, but that's close to what he did with the 2nd Amendment.

The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.

He reads the last clause as a right all by itself, makes a number of guesses about the contents of that right (citing things people "undoubtedly thought" but didn't actually put into the Constitution), and then says---well, the first clause emphasizes the militia aspect of the last clause, but if we presume that hunting and self-defense were already in the last clause, the first clause doesn't remove them.

(The difference being: Scalia does have historical support for contemporary belief in a preexisting hunting/self-defense right. As it so happens there is no historical support for a cider-press right AFAIK. But there is a big difference, which Scalia misses, between "some people believed in a right that worked like X" and "X was included in the Constitution")

 

[WildCat]

Well, if you follow Scalia's argument you could read "freedom of the press" in isolation, then ask whether the other clauses specifically remove cider presses from consideration. Does "freedom of speech" somehow cancel or remove the cider-press rights of the subsequent clause? No.

That's stupid, but that's close to what he did with the 2nd Amendment.

You really should stop with that argument, it really shows your desperation. Did anyone ever use the term "freedom of the press" to refer to cider presses?

 

[ben m]

You really should stop with that argument, it really shows your desperation. Did anyone ever use the term "freedom of the press" to refer to cider presses?

Read the last paragraph of my previous post.

 

[ben m]

By what authority did Pres. Washington - relying on his (and his advisor's) contemporary knowledge of the new Constitution - disarm and disband the various militias that rebelled against the newly-asserted federal authority?

What? Like Shay's Rebellion, the Whiskey Rebellion, etc.? AFAIK there was nothing you could call "disarming a militia". A handful of people were arrested (presumably charged with ordinary statutory crimes, but maybe with treason under Article III); the body of people you'd call the "militia" just went home voluntarily, taking their weapons with them.

You'll correct me if I have the historical record wrong.

 

[ThunderChunky]

Well, if you follow Scalia's argument you could read "freedom of the press" in isolation, then ask whether the other clauses specifically remove cider presses from consideration. Does "freedom of speech" somehow cancel or remove the cider-press rights of the subsequent clause? No.

That's stupid, but that's close to what he did with the 2nd Amendment.

There is no "freedom of the press" in isolation. It's "freedom or speech, or of the press."

He reads the last clause as a right all by itself, makes a number of guesses about the contents of that right (citing things people "undoubtedly thought" but didn't actually put into the Constitution), and then says---well, the first clause emphasizes the militia aspect of the last clause, but if we presume that hunting and self-defense were already in the last clause, the first clause doesn't remove them.

(The difference being: Scalia does have historical support for contemporary belief in a preexisting hunting/self-defense right. As it so happens there is no historical support for a cider-press right AFAIK. But there is a big difference, which Scalia misses, between "some people believed in a right that worked like X" and "X was included in the Constitution")

The last clause of the 2nd if read on it's own is "the right of the people to keep and bear arms shall not be infringed." That works fine is isolation. "of the press" does not.

 

[Hercules56]

What is this about the counties being able to appeal to a 11 judge panel for the 9th Federal District, rather than to the Supreme Court?

 

[Cylinder]

What is this about the counties being able to appeal to a 11 judge panel for the 9th Federal District, rather than to the Supreme Court?

The case was decided by a panel of three of the 29 justices that sit on the 9th US Circuit. One mechanism for that court to reconsider a ruling is a motion for en banc review - meaning what's considered (by rule of that court) a full panel of 11 justices review the issue. Hearing en banc is up to the discretion of the court.

 

[Hercules56]

The case was decided by a panel of three of the 29 justices that sit on the 9th US Circuit. One mechanism for that court to reconsider a ruling is a motion for en banc review - meaning what's considered (by rule of that court) a full panel of 11 justices review the issue. Hearing en banc is up to the discretion of the court.

How often does that happen?

 

[Hercules56]

What's keeping the counties from just appealing this to an 11 judge panel, which is probably mostly liberals, rather than appealing to the Supreme Court that has an even split?

If I was San Diego County, I would want the mostly liberal judges of the 9th Circuit to deal with this one.