The Second Amendment Is a Gun-Control Amendment

[eridani]

http://readersupportednews.org/opinion2/277-75/32756-focus-the-second-amendment-is-a-gun-control-amendment

This was an astounding constitutional reading, or misreading, as original as Citizens United, and as idiosyncratic as the reasoning in Bush v. Gore, which found a conclusive principle designed to be instantly discarded—or, for that matter, as the readiness among the court’s right wing to overturn a health-care law passed by a supermajority of the legislature over a typo. Anyone who wants to both grasp that decision’s radicalism and get a calm, instructive view of what the Second Amendment does say, and was intended to say, and was always before been understood to say, should read Justice John Paul Stevens’s brilliant, persuasive dissent in that case. Every person who despairs of the sanity of the country should read it, at least once, not just for its calm and irrefutable case-making but as a reminder of what sanity sounds like.

Stevens, a Republican judge appointed by a Republican President, brilliantly analyzes the history of the amendment, making it plain that for Scalia, et al., to arrive at their view, they have to reference not the deliberations that produced the amendment but, rather, bring in British common law and lean on interpretations that arose long after the amendment was passed. Both “keep arms” and “bear arms,” he demonstrates, were, in the writers’ day, military terms used in military contexts. (Gary Wills has usefully illuminated this truth in the New York Review of Books.) The intent of the Second Amendment, Stevens explains, was obviously to secure “to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” The one seemingly sound argument in the Scalia decision—that “the people” in the Second Amendment ought to be the same “people” referenced in the other amendments, that is, everybody—is exactly the interpretation that the preamble was meant to guard against.

Stevens’s dissent should be read in full, but his conclusion in particular is clear and ringing:

The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding .

. .

Justice Stevens and his colleagues were not saying, a mere seven years ago, that the gun-control legislation in dispute in Heller alone was constitutional within the confines of the Second Amendment. They were asserting that essentially every kind of legislation concerning guns in the hands of individuals was compatible with the Second Amendment—indeed, that regulating guns in individual hands was one of the purposes for which the amendment was offered.

So there is no need to amend the Constitution, or to alter the historical understanding of what the Second Amendment meant. No new reasoning or tortured rereading is needed to reconcile the Constitution with common sense. All that is necessary for sanity to rule again, on the question of guns, is to restore the amendment to its commonly understood meaning as it was articulated by this wise Republican judge a scant few years ago. And all you need for that is one saner and, in the true sense, conservative Supreme Court vote. One Presidential election could make that happen.

[EdwardBernays]

1. Almost

The interpretation of was changed by SCOTUS with Heller and McDonald. It became an INDIVIDUAL RIGHT whereas courts for decades had said it was a COLLECTIVE right which was governed by the States.

So - sadly- after that, the legal precedent changed and courts have been making decision based on the new interpretation ever since.

[gejohnston]

6. actually not,

there was no ruling about individual vs collective right before that. Both sides like to bring up Miller, but Miller didn't buy the collective rights argument either. The writer doesn't know what he is talking about and the essay wasn't even coherent.

[jimmy the one]

13. a zeal to deceive

gjohnston: ... there was no ruling about individual vs collective right before that. Both sides like to bring up Miller, but Miller didn't buy the collective rights argument either.

1939 Miller case, UNANIMOUSLY* decided by SCOTUS: The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
*unanimously was 8-0, since one justice just appt'd & recused himself.

I know you've seen the above before Johnston, yet you have the gall to ignore it or 'forget' it, in your zeal to deceive.

Johnston:The writer doesn't know what he is talking about and the essay wasn't even coherent.

You're not the one to be criticizing others here about not knowing what one is talking about.

[gejohnston]

15. I know exactly what I'm talking about

it was eight to zero only because there was no opposing argument nor brief. You know that.
https://en.wikipedia.org/wiki/United_States_v._Miller

[jimmy the one]

17. a blue link still needs explanation

johnston: I know exactly what I'm talking about .... it was eight to zero only because there was no opposing argument nor brief. You know that.

You don't know squat about miller except for pro gun rightwing propaganda. Here you again go with a smoke screen, posting a link to Wikipedia without citing anything that you're talking about, as if the presence of a blue link with the words US v Miller somehow makes your case for you. Cite what you think supports your case rather than a link to what leaves a blank stare on readers faces as they try to decipher what in the hell you're getting at. In your case, your wiki link fails far more than it succeeds (my next post).

And what in the world does the following excerpt from the 1939 miller decision even have to do with technical details of the case? the following is a broad reading of what the 2nd amendment represented, does not mention miller or the case in particular; it could've been tacked on to any related 2ndA ruling, and would not hinge on whether miller or Layton testified at all:

The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

I'll remind you of your absurd remark in post 6, where you ignored the above clearly collective rights arguments by a UNANIMOUS 8-0 supreme court, and wrote how miller 'didn't buy the collective rights argument either.' Explain your absurdity.

Johnston, post 6: Both sides like to bring up Miller, but Miller didn't buy the collective rights argument either.

They bought the collective rights argument, packaged it & broadcast it for all to hear too, that's clear enough.

[gejohnston]

18. the reason I ignored the collective right

because it wasn't part of the decision. It was the argument the Government made with no counter argument.

[jimmy the one]

20. what kind of error was it

Johnston: the reason I ignored the collective right because it wasn't part of the decision. It was the argument the Government made with no counter argument

Pathetic Johnston, that you ignored the 1939 miller collective right view when you wrote ... Miller {court} didn't buy the collective rights argument either.

Would that be an error of omission? a factual error? or an error to deceive?

Don't you think that if any of the unanimous 8 justices had felt the wording below was in error, one would've objected & said 'whoa fellow justices, look how we worded this!! future generations are going to think we thought 2nd amendment was for militia and not an individual right to keep & bear arms'

Yet not one did object, they all agreed & signed; even the 9th recused justice later became a gun control advocate.

The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

[jimmy the one]

19. stupid ol' supreme court

Johnston, posting a link to wiki: "I know exactly what I'm talking about" https://en.wikipedia.org/wiki/United_States_v._Miller

As I wrote in my previous post, you (Johnston) should cite exactly what you're driving at, rather than post a link & leave readers to muddle thru it with blank stares trying to decipher any point you have. When you do what you did - post a 'Liar's Link' with no citations - your credibility dissolves & readers can see that you can't really rebut.

in fact, Johnston's wiki link supports my case far more than Johnston's: Defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act {1934} as an unconstitutional violation of the {2ndA}. District Court Judge Ragon accepted the claim and dismissed the indictment... In reality, Ragon was in favor of the gun control law and ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the govt's appeal to the Supreme Court would be a sure win because Miller and his attorney would not even be present at the argument.

It seems that Frank Miller was not going to appear before any ol' stupid supreme court anyway, eh Johnston? it seems that judge ragon preempted miller for a sure win in the scotus, eh Johnston?
To put it bluntly, litigants frank miller & Layton are relatively immaterial to the crux of the 1939 miller decision when considering how the court viewed the 2nd amendment, the excerpt which I cited. No more than emerson's restraining order & subsequent gun purchase had to do with the interpretation of 2ndA as an individual rkba.
Emerson & Miller were simply pawns which surfaced, which resulted in two diametrically contrary 2ndA views in miller & heller.

excerpts from Johnston's wiki link (re the 7 post miller 2ndA cases, excluding scalia led heller):

Adams v. Williams (1972); (dissenting opinion of Douglas, joined by Marshall) The leading case is US v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia." ... the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion." Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.

I don't see how Adams v Williams helps you a bit, Johnston. Care to expound?

Lewis v. United States (1980); (Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia&quot ; US v. Three Winchester 30-30 Caliber Lever Action Carbines, (1974); US v. Johnson, 1974); Cody v. US, (1972) (latter 3 cases holding, respectively, that {xxx}do not violate 2ndA..).

See Johnston what I mean? this only confuses readers, you need to expound.

Printz v. US (1997) Our most recent treatment of the Second Amendment occurred in US v. Miller(1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the {2ndA}.

Well this is what you should've noted I suppose, but were you afraid to cite the 5-4 decision to counter miller's unanimous 8-0 decision? or was it you were embarrassed to have to reveal who the 5 justices were who ruled in this manner which deflated the actual miller decision in the last sentence above?

Justices (majority): Anthony M. Kennedy (libertarian views), Sandra Day O'Connor, William H. Rehnquist (conservative), Antonin Scalia (RW) (writing for the Court), Clarence Thomas (RW)
Justices Dissenting Stephen Breyer (dem/liberal), Ruth Bader Ginsburg, David H. Souter (Repub but generally sided w liberals), John Paul Stevens (generally sided w liberals)

So Johnston is possibly relying on the printz reference to miller, the pritz case which was a rightwing majority opinion, dissented by the liberal side of the court.
What absurd point of yours do you think disproved the miller collective rights opinion, Johnston?

[gejohnston]

21. printz and miller were both criminals

that was covered in the majority opinion in Heller.
Using your "logic", we should give a shit about Plessey.

[jimmy the one]

23. non responsive

Johnston: printz and miller were both criminals ... that was covered in the majority opinion in Heller. Using your "logic", we should give a shit about Plessey.

I read this as 'non responsive'; just a weak attempt to save face & have the last word - a typical resort of the egotistical out-argued.

[gejohnston]

24. non responsive is

is the civil way of dealing with absurdity and pointlessness.

[Eleanors38]

9. The U.S. Constitution doesn't do "collective rights." Rights are individual.

The Civil War was fought over collective rights; i.e., "states' rights" as promoted by Southern slave states. That side lost.

It is curious how the context of the times entertains "military terms," yet is roundly ignored when the specific technology of "press" is employed.

The real question goes to the "militia clause" being the government's statement of reliance on an individual right, or rather the individual right is hugely modified by that clause. Most constitutional scholars, legal scholars and political scientists who have studied the Second answer with the former, and have so answered well before Heller and McDonald.

[ileus]

2. The right to life, liberty, and persuit of happiness is where firearm ownership comes from.

The second is only a small part of the 2A "debate".

Our founders never imagined we'd be so dumb as to need to debate individual human rights.

[Human101948]

3. The "pursuit of happiness" does not necessarily equate with "happiness is a warm gun"

US Supreme Court Justice Anthony Kennedy explained this often forgotten sense of happiness in his 2005 lecture at the National Conference on Citizenship. Kennedy notes that while in modern times there is a “hedonistic component” to the definition of happiness, for the framers of the Declaration of Independence “happiness meant that feeling of self-worth and dignity you acquire by contributing to your community and to its civic life.” In the context of the Declaration of Independence, happiness was about an individual’s contribution to society rather than pursuits of self-gratification. While this sense has largely fallen out of use today, it’s important to keep these connotations of happiness mind when studying political documents from the 18th century.

http://blog.dictionary.com/happiness/

Notice the "community" component of that definition.

[discntnt_irny_srcsm]

4. A right to life implies a right to self-defense

Would you be against self-defense?

[Human101948]

5. It is the mode of self defense that is in dispute...

You say you need a handgun to defend yourself. I believe that I need an RPG to defend myself. How can I be denied an RPG? Or a a tactical nuclear weapon?

[discntnt_irny_srcsm]

7. File with ATF...

https://www.atf.gov/firearms/firearms-guides-importation-verification-firearms-national-firearms-act-definitions-1

...for the RPG.


Personally, I'd trust you with either the RPG or the nuke more than I'd trust Cheney or some others.

[discntnt_irny_srcsm]

8. That's a negative, you're just wrong

Consider:

In pari materia ("upon the same matter or subject&quot
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government's) powers, that further declaratory and restrictive (of the government) clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

(underlined text added by me)

[beevul]

10. That paragraph essentially destroys interpretation out of context...

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government's) powers, that further declaratory and restrictive (of the government) clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

That paragraph essentially destroys interpretation out of context, of the bill of rights.

It should be required reading in civics classes nation wide, and even some judges could apparently use a refresher.

[discntnt_irny_srcsm]

11. Absolutely!!!

[jimmy the one]

12. the invisible word - declaratory

dscntnt: THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government's) powers, that further declaratory and restrictive (of the government) clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

See that little 3 letter word 'and' between declaratory & restrictive? why do you fail to provide any reason for what 'declaratory' means? is the word declaratory invisible to you & beevul?
In my below argument the secured 'right' to individuals in the 2nd amendment case, was the right to keep & bear arms in, and participate in, a well regulated militia. There was no recognized individual rkba in 1791, there was only a 'shared' recognition by a few states with the well reg'd militia taking precedence.

William Rawle clearly differentiates between 'restrictions on the powers of congress' and a 'bill of rights' as being security to the rights of individuals.

Wm Rawle, 1829, A view of the constitution, all caps in link, not my emphasis: CHAPTER X. OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS
Of the amendments already adopted, the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power.
The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all. http://www.constitution.org/wr/rawle_10.htm

encyclopedia britannica: Bill of Rights, in the United States, the first 10 amendments to the U.S. Constitution, which were adopted as a single unit on Dec 15, 1791, and which constitute a collection of mutually reinforcing guarantees of individual rights and of limitations on federal and state governments. http://www.britannica.com/EBchecked/topic/503541/Bill-of-Rights

wiki: The Bill of Rights is the collective name for the first ten amendments to the Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public.

[discntnt_irny_srcsm]

14. the Bill of Rights...

...declares individual rights and limits governmental powers regarding those rights.

Works for me.

[jimmy the one]

22. declaratory & (govt) restrictive

dscntnt: the Bill of Rights......declares individual rights and limits governmental powers regarding those rights

They are two separate concepts, one being a declaration of individual rights (in 2ndA case right to belong to militia), and the other the limitation of congressional (govt) powers.

dscntnt added the underlined text: THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government's) powers, that further declaratory and restrictive (of the government) clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

You can possibly mislead with your above two underlinings; the below is how it should better read using your emphasis method:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government's) powers, that further declaratory clauses and (governmentally) restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

[beevul]

16. Of course it isn't, james.

See that little 3 letter word 'and' between declaratory & restrictive? why do you fail to provide any reason for what 'declaratory' means? is the word declaratory invisible to you & beevul?

We simply know that it authorizes nothing, grants nothing.

And since all rights by default belong to the people...