The 2nd Amendment and the US Supreme Court

[Gagglegnash]

Hi

luchog: The problem with banning stuff because someone else doesn't, "need it," and another someone else is likely to jackassulate with it is pretty thin ice. No one needs anything but a black Ford Taurus. No one needs anything but that Purina European Chow I mentioned before.

I don't need several handguns, right?

That whole, "pursuit of happiness," thing covers a lot of ground, and pretty much means that no one but me has to know what makes me happy, as long as I do it in a safe and legal manner.

(Banning something won't keep it from being abused, anyhow, so I leave banning out of that, "and legal," part because anything that's banned becomes illegal, and we've already covered that.)

I do believe that if someone screws up with a firearm... any kind of firearm... and hurts someone else, the law should come down fairly heavily on the offender, though.

If you shoot off your own thumb, well, too bad for you.

Also, if I'm allowed to have a Ma Deuce (and I am, I think) then what's wrong with owning something like a .50 Barrett if I have the desire to own it, and, again, do it safely and legally? Yes, someone's likely to use one to shoot something they shouldn't, but it's probably not going to be me!

No - I'm all for free market when it comes to firearms. Law-abiding citizens should be allowed to do law-abiding stuff with just about anything they want, up to the point where making a single mistake will cost someone a house.

 

[autumn1971]

With all respect to those with much more knowledge than I have about various specific aspects of this post, my feeling about the actual subject at hand lies in the dependant phrase "being necessary to the security of a free State".
If

 

[autumn1971]

With all respect to those with much more knowledge than I have about various specific aspects of this post, my feeling about the actual subject at hand lies in the dependant phrase "being necessary to the security of a free State".
If I read my Strunk and White correctly, the comma indicates a condition dependant on the opening statement. If this is correct, the opening clause "A well regulated Militia," would make "being necessary to the security of a free State" , a condition which the last clause, i.e., "the right of the people to keep and bear Arms" is subject to.
Big ifs, I know, but a good and honest discussion probably is more useful, and certainly more entertaining than he-said/she-said debates.

 

[UserGoogol]

"rate" implies normalized by the population, so the population drop has been taken into account.

I suspect population impacts crime in a nonlinear way. For instance, when population goes up, not only are there more people, but each individual person has the opportunity to interact with more people. So dividing by population doesn't completely compensate for the impact of population.

 

[BPSCG]

For what it's worth, my take on the oral argument is that most of the justices are very worried about unintended consequences.

If they rule that Heller has a constitutional right to keep his weapons in his home, does that mean that state gun regulations all over the country will be constitutionally suspect, and perhaps unenforceable?

If they rule that the purpose of the Amendment is for private people to have guns for potentially military use, will that mean that citizens will be allowed to buy machine guns (a modern-day military weapon in wide use)?

If they rule that the right extends to militias for common defense rather than to individuals for self-defense, is there a risk that all private ownership of firearms might be completely abolished?

If they rule that some restrictions can exist on individual firearm ownership (as there are restrictions upon every individual right in the Bill of Rights), by what standards are those restrictions to be measured?

This concern about consequences comes from all sides of the political spectrum. But it must also be said that some members of the bench seem to be less concerned about consequences than others.

Good questions. I've always been puzzled by the meaning of the word "infringed" in the amendment. My understanding of the word is that "infringe" is synonymous with "encroach." That would somehow seem to suggest that the framers intended that the government could not restrict weapons ownership at all, a position very few people would hold. How do you restrict a right without infringing on it? Tricky ground, or at least it appears so to this non-lawyer.

 

[BPSCG]

Brown, you did a phenomenal job of reporting and summarizing this case. Thanks.

Amen that. Try to talk about the second amendment with any of your non-JREF friends and neighbors, and watch how fast it descends into emotion and name-calling.

*...sniff...*

I love you guys...

*...sniff...*

 

[BPSCG]

Justice Thomas is not alone, here. Justice Scalia, too, has been criticized for cavalierly setting aside precedent merely because he finds it inconvenient. In this particular case, Justice Kennedy seemed to be dismissive of precedent, too:

How much weight is a justice supposed to give precedent? Not trying to be a smartass here. If a judge thinks a case was wrongly decided, is he allowed to/supposed to factor that into his thinking? Dred Scott and Plessy v. Ferguson were also precedents once upon a time.

ETA: Never mind. Damn you to hell and back, Wildcat.

 

[Gagglegnash]

Hi

Good questions. I've always been puzzled by the meaning of the word "infringed" in the amendment. My understanding of the word is that "infringe" is synonymous with "encroach." That would somehow seem to suggest that the framers intended that the government could not restrict weapons ownership at all, a position very few people would hold. How do you restrict a right without infringing on it? Tricky ground, or at least it appears so to this non-lawyer.

Well, the idea of non-infringement applied to, "the People," means that the law-abiding citizens of the country should be able to have whatever arms they wish and can afford.

If you showed one of the Founding Fathers machine gun, the reaction would probably be something like, "I gotta get me one of those!" Show him a modern fragmentation hand grenade, and the reaction would probably be, "ummm... you know... you make one mistake with one of those...."

I do not believe that reasonable control is infringement, as long as I, as the previously mentioned law-abiding citizen, can have what I want. I want a machine gun. Make me provide positive identification, and have me pass state and federal background checks and finger print searches. If I've never committed a felony or high-level misdemeanor, and I've committed no misdemeanors at all in... oh... five, maybe ten years, sell me my FN P90.

Even registration has its place.

Having my name on a list of people owning firearms, and sometimes exactly which firearms I own, strikes me as a bad idea. With computerization, hackers and other jackassulants can get any information they really want and for which they are willing to pay.

A list of names, addresses and which firearms are owned strikes me as being way too close to being a shopping list.

On the other hand, I rather approve of the idea of registering the fact that I'm allowed by state law to carry a firearm on my person. To get my concealed carry license, I had to pass the same kind of checks as I outlined above, and if I have to pull my firearm for some reason, I have a drivers license and a CCL to show to the officers that arrive subsequent to my going guns-out. It indicates to the officers that I, at least to date, have been a law-abiding citizen.

It also means that my background checks are on file, so I can buy firearms without having to fill out the state forms, anyhow.

Infringement comes when arbitrary and unfair laws restrict me as if I were a convicted felon or in violation of my rights. Forbidding me to own firearms manufactured after a specific date is arbitrary. Forbidding me to own and carry firearms because someone else breaks the law is unfair. Forbidding me from owning and carrying firearms because I MIGHT break the law is a violation of my right to be considered innocent until proven guilty.

Of course, it all depends on if it is my right as an individual.

If it's not, then a lot of things that both the Founding Fathers and I value goes out the window. If the phrase, "the people," can, in any wise, be interpreted as a collective concept instead of an individual one, "We the People of the United States," suddenly gets kind of fuzzy, as do some of the others, like, "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," and, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

O, Tempus, O Mores.

 

[BPSCG]

Well, the idea of non-infringement applied to, "the People," means that the law-abiding citizens of the country should be able to have whatever arms they wish and can afford.

Does it? What do you base that on? My understanding of "infringe" is that it restricts something, it trespasses, it encroaches. It doesn't mean "abolish." If the government - federal, state, or local - tells me I can't own a tank, or a thermonuclear bomb, how is that not "infringing" on my right to keep and bear arms?

I do not believe that reasonable control is infringement, as long as I, as the previously mentioned law-abiding citizen, can have what I want. I want a machine gun. Make me provide positive identification, and have me pass state and federal background checks and finger print searches. If I've never committed a felony or high-level misdemeanor, and I've committed no misdemeanors at all in... oh... five, maybe ten years, sell me my FN P90.

Even registration has its place.

I'd like to think I don't disagree with you, in principle. But how do you feel about my owning a fifty-kiloton warhead?

 

[pgwenthold]

I suspect population impacts crime in a nonlinear way. For instance, when population goes up, not only are there more people, but each individual person has the opportunity to interact with more people. So dividing by population doesn't completely compensate for the impact of population.

I've often wondered about the correlation between crime rate and population density? Perhaps, for example, at the county level.

I don't have a clue what the correlation might be nor how strong it is, but I wouldn't be surprised to see there is one.

 

[Gagglegnash]

Hi

Does it? What do you base that on? My understanding of "infringe" is that it restricts something, it trespasses, it encroaches. It doesn't mean "abolish." If the government - federal, state, or local - tells me I can't own a tank, or a thermonuclear bomb, how is that not "infringing" on my right to keep and bear arms?

I'd like to think I don't disagree with you, in principle. But how do you feel about my owning a fifty-kiloton warhead?

Again, "reasonable controls."

The folks who put this stuff together didn't mean that people who had shown themselves unwilling to obey the law or incapable of behaving responsibly to go about armed. From, "we, The People of the United States," on down, "the people," refers to the law-abiding citizens, right?

That also means, as a single instance, that anything that will blow up your neighbor's house (or entire city) if you make a single bone-head mistake probably shouldn't be available to the average law-abiding, bone-head mistake-making public. I'm really not wild about allowing the average law-abiding, bone-head mistake-making citizen weapons that will blow up just his own house because of the danger to other nearby houses.

I say this because I have had three accidental discharges (for, "accidental discharges," read, "bone-head mistakes..." they almost always are) in my life. In all cases, the danger was eliminated by obeying one of the other laws of firearms handling: Never cover anything you don't want to kill or destroy.

You can compensate for accidental discharge bone-head mistakes by being careful and conscientious about where the bullets go.

You can't do that with your average high explosive device. There's no compensating for a single bone-head mistake.

Oh - and - you can probably own a tank... maybe not an Abrams, because of the classified electronics, but fork out some serious expendable income and you can be pulling up stumps with your own Vietnam-era M60.

I say, "probably," because at one time, Indiana had a law stating that you couldn't own a vehicle capable of resisting a shot from the standard issue sidearm of the State Police. Since that was, at the time, a .38 Special, that meant you couldn't own '30s, '40s and '50s Ford family cars, either....

Oh - and - you can't own the main gun unless it's been demilitarized because of that whole, "neighbor's house," thing.

You can, however, own the coax, pintle and cupola guns in most states. Most states also have provisions prohibiting running the track on the public streets because of the damage done, which also applies to other tracked vehicles as well, but as long as you're on private property, have at it.

 

[BPSCG]

I've often wondered about the correlation between crime rate and population density? Perhaps, for example, at the county level.

I don't have a clue what the correlation might be nor how strong it is, but I wouldn't be surprised to see there is one.

I was on a skiing trip in northern Montana a couple of months ago. Lady in our group picked up the local newspaper that was sitting in the hotel lobby and started reading the crime beat section to the rest of us for our amusement. "A man called the police to complain about his neighbor's dog barking." "A woman registered a complaint that someone had left a broken refrigerator on her property." The one we liked best was "A woman reported to the police that she'd seen an unfamiliar man hitchhiking. She wasn't sure if he was wearing any pants or not."

Some people have no real concept of crime. I did talk with someone from the hotel about it a little later, and she told me the biggest crime issue in the area was meth labs, but I got the impression that it was about as severe a problem as illegal stills in the woods in Georgia, i.e., nobody was getting hit over the head and his wallet taken.

 

[SDC]

The eventual SC decision will be interesting. Reading the amendment, especially the "infringe" and the presumed meaning of the word (did it have a different meaning ca.1790?)... I would say that the majority of the Supremes, that is the ones in favor of limiting gun control, are going to have to come up with a justification of some sort of limit regardless of the amendment. That is, I doubt anyone except possibly Scalia looks forward to citizens packing machine guns on their way to the supermarket. How will the court justify some measure of gun control or limits on gun ownership?

 

[Brown]

How much weight is a justice supposed to give precedent? Not trying to be a smartass here. If a judge thinks a case was wrongly decided, is he allowed to/supposed to factor that into his thinking? Dred Scott and Plessy v. Ferguson were also precedents once upon a time.

This is an intelligent question. (And by the way, happy belated birthday.)

I've written about this question before, so what I say now will be somewhat abbreviated and may address the issue from a different angle.

Let's start with first principles. What is the effect of judicial power? Suppose Jones and Smith bring a case to court, and the judge determines that the law is on Smith's side. This ruling is binding upon Smith and Jones, but is not binding upon anyone else. Later, Williams and Robinson bring a case to court, on precisely the same facts, with Williams being in Jones's position and Robinson being in Smith's position. Even though the first ruling is not binding, the ruling on the law should ordinarily (an important word) be the same. The judge should not ordinarily apply one rule for one set of parties, and a different rule for a different set of parties on the same facts.

If people are going to conduct themselves according to the law, they have to know what the law is. In the case of judge-made law, people are generally reasonable in assuming that the judge won't ordinarily change the law capriciously, ruling one way for one set of parties but ruling a different way for a different set of parties.

It ordinarily should make no difference that Jones vs. Smith was heard by Judge White, while Williams vs. Robinson was heard by Judge Black. It should make no difference whether one case was heard on a Wednesday, while the other was heard on a Friday. It should make no difference whether Williams is rich and famous while Jones is poor and a pardoned felon. It should not matter that an election is pending and the judge is up for election or retention.

There are times, however, when a decision in an earlier case should be distinguished, narrowed, and sometimes overruled. Perhaps the legal environment had changed. Perhaps the earlier ruling turned out to be unworkable or impractical. Perhaps the reasons behind the earlier ruling were foolish or were badly motivated. (In the case of Brown overruling Plessy, all three were true.)

The idea here is that there are competing tensions. On the one hand, you want people to have a pretty good idea what the law is, so that they can predict what law might apply if they ever wind up in court. On the other hand, you don't want a bad rule to perpetuate itself merely because it was issued in an earlier case.

One aspect of judicial power is balancing those tensions. The US Supreme Court has the power to reconsider every single one of its rulings, and decide anew in every case whether it made the right decision. But such an attitude would be foolhardy. For one thing, quoting the great Benjamin Cardozo, "[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him."

For another thing, cases would be vulnerable to cronyism, or would have a result determined by the composition of the court rather than the merit of the argument. Supreme Court justices of all persuasions have complained within the last thirty years that such things are happening, that results are not being dictated by logic or analysis, but by who happens to be on the Court at the time.

You can read a more detailed analysis of stare decisis in Planned Parenthood v. Casey. (Registration may be required for this web site, but the opinions should be widely available via a search engine.)

In general, a conservative justice is one that is less inclined to seek changes in the law, and is more inclined to follow earlier precendent--even on constitutional questions--unless there is a very good reason not to do so. And yet, as I mentioned in this post (and others), justices bizarrely referred to as "conservative" have been recently setting aside one "settled" legal principle after another, often without explaining good reasons for doing so, and have also publicly expressed a willingness to set aside additional long-standing rules without a showing of need.

 

[SDC]

Brown, two procedural questions: 1/ are we likely to hear more from the Court before it publishes its decision; and 2/ when is it likely to publish its decision?

(I'd ask 3/ do they wear anything under those robes but I think most here would rather not know.)

 

[luchog]

luchog: The problem with banning stuff because someone else doesn't, "need it," and another someone else is likely to jackassulate with it is pretty thin ice. No one needs anything but a black Ford Taurus. No one needs anything but that Purina European Chow I mentioned before.

Show me where in any of my posts I said "need". You're putting words in my mouth.

I'm speaking strictly of intent of the drafters of the 2nd Amendment. The intent, from my reading, seems quite clearly to mean Basic Infantry Weapons. Machine guns are not basic infantry weapons.

Personally, I really would love to own an M2 machine gun and a Mk19 Automatic Grenade Launcher. Not terribly fond of the M60, but I wouldn't turn one down if someone gave it to me.

But the point is not whether they're needed, but whether ownership is protected by the 2nd Amendment. I don't believe it is.

And before some idiot says it, that doesn't mean I'm in favour of banning them either. Far from it. And unlike what most people think, the Bill of Rights isn't a strict deliniator of individual freedoms, it's a bare minimum of freedoms enjoyed by citizens of the US; and that citizens enjoy many more rights besides those listed. The Constitution clearly states that. Just because the 2nd Amendment only protects BIWs, does not mean that State Constitutions, or the Federal or State governments are prevented from permitting the ownership of weapons not protected by the US Constituation. Far from it. But that's not the issue here. The issue here is the nature of the 2nd Amendment to the US Constitution. My own state Constitution enumerates rights and freedoms above and beyond those specified in the US Constitution.

The only weapons I'd agree with banning are those that target indiscriminately (bombs, grenades, etc.). But that's not what we're talking about.

 

[Gagglegnash]

Hi

Show me where in any of my posts I said "need". You're putting words in my mouth.

Oops - I'm usually better about doing multi-posts, but I was short on time. My apologies.

I'm speaking strictly of intent of the drafters of the 2nd Amendment. The intent, from my reading, seems quite clearly to mean Basic Infantry Weapons. Machine guns are not basic infantry weapons.

Well - except that just a few years earlier, people with BETTER than Basic Infantry Weapons (the Pennsylvania rife was man-accurate out to 200 yards, while the musket was hard-pressed at 75, giving the American riflemen the ability to pick off officers and non-coms, leaving the troops in confusion before the lines engaged) were instrumental in gaining those same guys the ability to create and amend a constitution. General Washington seems to have thought highly enough of the rifle troops to have a general order in place that instructed line units to protect them.

Why, then, having pursued a war with the best military in the world at the time by using better weaponry than they had and using tactics designed around those same weapons' use, would the men who made the constitution limit arms to standard infantry weapons?

Personally, I really would love to own an M2 machine gun and a Mk19 Automatic Grenade Launcher. Not terribly fond of the M60, but I wouldn't turn one down if someone gave it to me.

Pay the collector's registration fee, get the collector's license, pay the transfer fee and the inflated price and you can me lighting up your back yard with your own Ma-Deuce or M60!

Well - mostly. There's still, like, eight states that frown on machine guns.

Also, you'll have to settle for an old one. No new ones can be added, a more recent manufacture date apparently being too deadly for the same legislature that though pistol-grips and bayonet lugs on a rifle and a cowling on the barrel of a pistol make them more deadly.

The grenade launcher is probably out, though. That whole, "the neighbor's house," thing again.

But the point is not whether they're needed, but whether ownership is protected by the 2nd Amendment. I don't believe it is.

I do believe it is. I guess that's what makes horse races.

I'd like to see someone make up... say... three sentences cast in the same syntax as the 2nd Amendment... (passive voice clause) + (simple declaration)... not including the 2nd Amendment, in which the first clause significantly modifies the meaning of the second.

All I can come up with is stuff like, "needing more cup holders, I bought the Lexis."

I've hear a lot, recently, about, "rag-tag guys with guns," not being a militia. To them, I feel like I have to point out that in 1775, we had an excellent standing militia, called the British Army, and later on, a mess of rag-tag farmers with muskets and rifles, called, "The Minutemen," stood against them at the Concord bridge in order to defend a cache of, "military supplies," and got that whole, "United States," thing rolling.

Also: If, "the right of the people," can be construed as a right available only to a collective instead of meaning, "all law-abiding citizens," that places all those other, "the right of the people"s on fairly shaky ground for individuals.

And before some idiot says it, that doesn't mean I'm in favour of banning them either. Far from it. And unlike what most people think, the Bill of Rights isn't a strict deliniator of individual freedoms, it's a bare minimum of freedoms enjoyed by citizens of the US; and that citizens enjoy many more rights besides those listed. The Constitution clearly states that. Just because the 2nd Amendment only protects BIWs, does not mean that State Constitutions, or the Federal or State governments are prevented from permitting the ownership of weapons not protected by the US Constituation. Far from it. But that's not the issue here. The issue here is the nature of the 2nd Amendment to the US Constitution. My own state Constitution enumerates rights and freedoms above and beyond those specified in the US Constitution.

Mine does too, including a juicy bit about, "(Article 1, Section 32) The people shall have a right to bear arms, for the defense of themselves and the State."

I wonder if that can stand as written if the Feds say it's not an individual right. I can BEAR weapons, right, but not necessarily OWN them. If it's a group right at the Federal level, I may only be able to bear weapons issued to me by the state of Indiana.

The only weapons I'd agree with banning are those that target indiscriminately (bombs, grenades, etc.). But that's not what we're talking about.

I might even let 'em have hand grenades, but I'd tag a whole lot of extra jail-time on if they damage someone else's property.

(Still expecting major waffling and weaselage.)

 

[UserGoogol]

I'd like to see someone make up... say... three sentences cast in the same syntax as the 2nd Amendment... (passive voice clause) + (simple declaration)... not including the 2nd Amendment, in which the first clause significantly modifies the meaning of the second.

Canola oil being an important ingredient in many nutritious foods, the right of the people to rape shall not be infringed.

Racism being a historical problem in the United States, black men have often been hung.

Crows being an important part of the ecosystem, the sight of a murder should be a happy occasion.

 

[Brown]

Brown, two procedural questions: 1/ are we likely to hear more from the Court before it publishes its decision; and 2/ when is it likely to publish its decision?

Chances are we will hear nothing more until the decision is issued. I expect it may be one of the last decisions of the term, so look for it in June (around the time of the Amazing Meeting).

 

[Gagglegnash]

Hi

Canola oil being an important ingredient in many nutritious foods, the right of the people to rape shall not be infringed.

Racism being a historical problem in the United States, black men have often been hung.

Crows being an important part of the ecosystem, the sight of a murder should be a happy occasion.

Now, explain how the first phrase significantly modifies the meaning of the second.

The way I read them:

Canola oil being an important ingredient in many nutritious foods, the right of the people to rape shall not be infringed.

Non sequiturs are like a bathtub full of brightly colored electric power tools.

[eta] D'oh! (_8(|) Rape seed. Ok - same deal. Rape.noun is in no way synonymous with rape.verb. (You do say, "to rape," right?) One doesn't rape.noun: One raises or grows rape.noun. Still brightly colored power tools. Great try, though. [/eta]

Racism being a historical problem in the United States, black men have often been hung.

Does racism being a historical problem in the US change the meaning, in any way, of the fact that black men have often been hung, or does it provide a singe, overriding reason for the event?

This is exactly like my, "needing more cup-holders, I bought the Lexis."

Crows being an important part of the ecosystem, the sight of a murder should be a happy occasion.

This is a good example! The first phrase sets the context for the second, so setting the definition of, "murder."

It does presume much on the synonymous nature of, "crows," and, "murder," though.

If the entire document in question had used and continues to use the word, "murder," repeatedly and consistently, with a definition of, "the crime of unlawfully and unjustifiably killing another", but for this one sentence, should we suspend the established meaning for this one sentence? If we accept the new meaning of, "murder," here, how does it affect the word's meaning in the rest of the document?

But, ah, there's the rub!

Time flies like an arrow. Fruit flies like a banana.

Decisions, decisions.

Are, "a ... militia," and, "the people," synonymous, and if they are, in which... well... direction... are they synonymous?

By, "direction," of synonymity, I ask, does it mean the militia, a trained military force as a subset of the whole people whose members are allowed to keep and bear arms, or does it mean the whole people, from which, in time of emergency, a militia can readily be formed, already armed and reasonably well equipped?

I would like, at this point, to remind you that in 1775, we had an excellent trained military force... The British Army.

(I have better arms in my closet than they issued me in the Army, along with a basic ammo load, and I still have my ALICE pack, poncho, shelter half, pistol belt, canteen, cup and mess kit. I'm ready to go if the President or Governor calls, so guess which definition I favor.)

[eta] Oh! Look what I just found at the Cornell University Law School site in the U.S. Code collection!!

TITLE 10 > Subtitle A > PART I > CHAPTER 13

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.​

I guess I'm off the hook with the President. The Governor still has call on me, though. [/eta]

So: You get a 33.3%. That's better than I got.