Antonin Scalia's death calls Supreme Court gun rights stance into question

[SecularMotion]

When the supreme court ruled in 2008 that the second amendment gives Americans an individual right to own a firearm, it was justice Antonin Scalia who wrote the historic and controversial majority opinion. The decision in that District of Columbia v Heller case, which struck down a local handgun ban, was 5-4.

It was also Scalia who last month joined in justice Clarence Thomas’s strongly worded dissent when the supreme court chose not to reconsider a seventh circuit court of appeals decision that an Illinois city’s assault weapon ban was constitutional.

“If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing,” the dissent argued.

Scalia’s sudden death at age 79 throws the supreme court’s divided stance on the second amendment into question.

http://www.theguardian.com/law/2016/feb/13/anotnin-scalia-justice-dead-supreme-court-gun-rights

[discntnt_irny_srcsm]

1. I think one of those...

...Bloomie mayors should take over for Scalia.

[beevul]

21. Some would have to complete their sentences first. N/T

[discntnt_irny_srcsm]

22. There will always be those who are...

...the poster children for 'a bad choice'......

[Lizzie Poppet]

2. Thus no nominee who is not an "individual right" advocate will have a chance at approval.

Or at least no one who tends not to be pretty conservative about stare decisis...

[stone space]

3. That will be the Republican position, no doubt.

Thus no nominee who is not an "individual right" advocate will have a chance at approval.

I sure hope that the GOP doesn't come here to DU to push this Scalia-style bullshit.

[GGJohn]

4. Why would the GOP come here?

They have their own sites.
BTW, the 2A is an individual right, as the President, the Party platform and the SC have all affirmed.

[stone space]

5. Oh, come on! We've even had Zimmerman supporters come here.

Why would the GOP come here?

They have their own sites.

Where have you been?

[GGJohn]

6. Zimmerman supporters?

Again, you're wrong, nobody here supported what Zimmerman did, why do you constantly lie about that?

[stone space]

9. Are personal insults really necessary here?

why do you constantly lie about that?

WTF???

[GGJohn]

10. A fact is not a personal insult.

Ya know, for being a professor, you sure seem to be unable to discern facts from insults.

[stone space]

11. More personal insults??? Seriously??? Why???

Ya know, for being a professor, you sure seem to be unable to discern facts from insults.

What does my being a professor have to do with anything?

What are these personal jabs all about?

Is it just another form of the sort of anti-intellectualism pushed by the GOP?

[GGJohn]

12. Why do you always make yourself out to be the victim? eom.

[stone space]

14. Why did you introduce personal insults into this thread?

And why are you trying to use my profession in education against me?

I don't understand your motivation here.

I normally consider such kneejerk anti-intellectualism as a right wing Republican strategy.

Why do I encounter it here on DU?

[GGJohn]

15. See, there you go again,

making yourself out to be the victim here.

Again, facts aren't personal insults.

[stone space]

16. Now you are just trolling.

Again, facts aren't personal insults.

I'm out.

[GGJohn]

17. ...

Now you are just trolling.

Says the master.

[Puha Ekapi]

18. No personal insults...

...that I can see.

[Duckhunter935]

20. same here, I see facts

[Eleanors38]

31. It's a shtick, seen early & often.

[Duckhunter935]

8. I am sure you will be able to supply links

[Duckhunter935]

7. so are you calling du members

Republicans?

[Lizzie Poppet]

13. That was precisely my point.

The GOP is probably going to block anyone Obama nominates...but anything even resembling advocacy of the "collective right" view will be a complete deal-breaker.

[Marengo]

19. Was his dissent in Maryland v King "bullshit" as well?

[beevul]

24. That will be the position of any individual who values their rights.

That's hardly right wing, since 76 percent of Americans support the individual right of people to keep and bear arms.

[TeddyR]

23. Not sure how his death calls anything

About Hellerinto doubt. The SC probably won't hear another 2A case for years and almost certainly won't reverse Heller, which correctly interpreted the 2A and is fully in line with the platform of the Democratic Party.

[flamin lib]

25. Really? Where, exactly, does the Second Amendment mention or even allude to a

right to self defense?

The only sensible place to find something like that would be in "natural law", a precursor to the Constitution, and recognized in the 9th and 10th amendments. However, nobody is ever going to open that can of worms by citing a sufferance to it in an accenting decision.

[gejohnston]

26. where does it say there isn't?

The right to privacy, the basis of Roe v Wade, is in the ninth.

[beevul]

27. Are you against self defense?

If not, why even bring it up?

[Surf Fishing Guru]

28. ReallY????

The right to privacy (and the rights that derive from it, abortion / contraception / sexual orientation rights etc) are recognized and protected because of the origin and nature of the enumerated rights (including the RKBA) and yes, the 9th Amendment.

You need to read Griswold and Roe and PP v Casey and decide if your hostility for the right to arms, (recognized as a link in the "rational continuum of liberty" the Bill of Rights protects), is worth calling into question the legal theory for recognizing the right to privacy.

My fear is that anti-gunner hostility for the the 2nd Amendment and gun rights will be employed by right-wingers to argue that recognizing and securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights is legally illegitimate -- because the premise of an unbroken "continuum" of liberty is obviously NOT true and thus the supposed foundational reasoning for Griswold, Roe, P.P. v Casey, etc., is unmitigated BS.

You are wrong and dangerously so . . .

[flamin lib]

30. I will ask again,

Where, exactly, does the Second Amendment reference self defense or for that matter hunting? It is promulgated on a State's need for a militia.

I do not argue there is no right right to self defense, only in where that right and a host of others resides. Heller was rightly decided but for the wrong reason and that is a dangerously wrong because linking any of the many rights we enjoy daily to an amendment incorrectly sets a bad precedent.

[Surf Fishing Guru]

32. You are starting from an invalid foundation

The right to arms isn't granted, given, created or otherwise established by the 2nd, the right to possess and use arms for legal purposes is a retained right -- no aspect of the right was ever conferred to the federal government that would allow the feds to dictate to the citizen what uses are allowed or qualify the protection of the right (e.g., upon one's attachment to organized militia).

You are arguing a position that has been denounced and rejected by SCOTUS for going on 140 years, not 8 years.

Back in 1876 SCOTUS recognized the right to bear arms for a lawful purposes -- that of armed self-defense in public by two former slaves, then citizens from the KKK / Night Riders, in 1873 Louisiana, a state who had their militia formally disbanded by Congress.

SCOTUS said then that such an exercise of the right to arms was, "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." SCOTUS re-affirmed that in 1886 and again in 2008;

"it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . ."

That means that 'promulgating the right on a state's need for a militia' is illegitimate.

The right itself, its recognition and protection can not be said to be dependent upon words in the Constitution (e.g., the 2nd's "well regulated&quot nor upon something that is itself, completely dependent upon the Constitution for its existence . . . such as the organized militia and a citizen's enrollment in it.

.

[flamin lib]

33. That is precisely what I said. Scalia found something in the Second Amendment that isn't there.

It amazes me how gun people will argue simply for the sake of argument.

[jimmy the one]

35. militia, clear & unequivocal in 1939 miller

surfer guru: The right to arms isn't granted, given, created or otherwise established by the 2nd, the right to possess and use arms for legal purposes is a retained right -- no aspect of the right was ever conferred to the federal government that would allow the feds to dictate to the citizen what uses are allowed or qualify the protection of the right.

Your tailing might comport with the militia interpretation, but how with the individual? Congress would write each white property owning male in all the states specifically about his single shot musquettes and what when why or where he could or couldn't hunt? that wasn't even a concern back then, game was plentiful unlike in england, indeed citizens were encouraged to own guns due their short supply in militia. Congress created the militia act of 1792 a mere five months after writing the 2ndA, pretty obviously to some of us, providing a technical description to a constitutional definition.
How do you explain (without more sophistry please) these of scalia's (I presume, & faulty) wordings in the heller decision: The {2ndA} operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
2 {faulty reasoning from scalia} The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

When scalia used the word clearly or unequivocally in heller, it is often a ruse, to deceive people into his errant point of view. Common rightwing ploy.
I did not miss this either, since the right to self defense has indeed existed for thousands of years prior to 2ndA. Tho the ancien regime hardly had gunpowder arms, just mainly those bows arrows & edged weapons: The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

And of course, you left off again the clear, yes clear, quote from the 1939 supreme court miller decision, which unequivocally, yes unequivocally, supports the militia interpretation (regardless of scalia & the gun lobby concocted song & dance, in their attempt to neuter it).

supreme court, 1939: 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.

[jmg257]

36. Hey jimmmy! I don't think there is doubt about the 2nd securing an individual right...

"The Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
(2) As evidenced by its preamble, the Amendment was adopted “with obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U. S. 174, 178 (1939) ; see ante, at 26 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.
(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) ; ante, at 22, 54 (opinion of the Court)."

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting. [June 26, 2008]


Of course, its purpose, or primary purpose as Breyer notes, is the continuation of the Militias. Nothing about recognizing the security of an individual right seems to contradict that. It is the securing of an individual right for self-defense purposes that is argued.

Breyer basic opinions included for information sake:
"The majority’s conclusion [in Heller] is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern....
The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves."
https://www.law.cornell.edu/supct/html/07-290.ZD1.html

I know you are all over this stuff, just curious about your take on "individual".

[jimmy the one]

37. little problem with militia centric pov

jmg: I don't think there is doubt about the 2nd securing an individual right... Of course, its purpose, or primary purpose as Breyer notes, is the continuation of the Militias. Nothing about recognizing the security of an individual right seems to contradict that. It is the securing of an individual right for self-defense purposes that is argued.

Well, an auxilliary individual right (militia centric) going alongside the militia interpretation I have little problem with, since that's probably what it was imo. But there is no individual rkba disconnected from militia, inherent in 2ndA.
For a minute there I thought you were arguing pro gun nonsense about breyer supporting the individual rkba; they sometimes do it taking the 4 propositions below & citing only the first, so this:

I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
(2) As evidenced by its preamble, the Amendment was adopted “with obvious purpose to assure the continuation and render possible the effectiveness of forces.” United States v. Miller, 307 U. S. 174, 178 (1939) ; see ante, at 26 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.
(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) ; ante, at 22, 54 (opinion of the Court)."

is refined down to, unbelievably, THIS, which they contend is unanimous support for the i-rkba!:

based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.

[jmg257]

38. Ha - that is why I included points 2-4 - NO doubt what he was saying! nt

[discntnt_irny_srcsm]

34. Do you deny a right to self-defense? n/t

[Nuclear Unicorn]

29. Can't tell the difference between babies and bathwater, huh?