Gun Control & RKBA
Related: About this forumHow the NRA Rewrote the 2nd Amendment -- The Founders never intended to create unregulated guns
This is a story from 2014 but bears reposting.
The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.
By MICHAEL WALDMAN May 19, 2014
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. He is the author of The Second Amendment: A Biography.
“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.
https://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856
(Please, unless you have several eminent constitutional scholars (not mediocre conservative judges) to quote, please do not post your amateur or NRA or GOP arguments disagreeing with Burger and Waldman. No, this is not an argument from authority, this is relying on a synthesis of opinions by experts. And no, the Brennan Center is on our side and you will not smear them or Waldman.)
——-
If you believe the second amendment prevents gun bans, you’ve been lied to by gun CEOs that want to make money and don’t care if they get Americans kids killed.
No American should be a useful idiot for the gun lobby.
And remember that gun GOP money has bought Republican judges too. Scalia died on a rightwing billionaire gun junket, that if he were a regular federal employee would have been an illegal bribe.
Republicans love guns because gun identity politics gets people to vote for tax cuts for billionaires. That’s why billionaires fund the NRA.
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mainstreetonce
(4,178 posts)I have hope
flamin lib
(14,559 posts)
guillaumeb
(42,649 posts)tells you all you need to know.
hack89
(39,179 posts)According to him, the only right you have is to own a handgun in your own home. That is all.
guillaumeb
(42,649 posts)Again, this says much about his intent and intellectual values.
hack89
(39,179 posts)It was part of the Democratic Party platform during the Obama years. The notion that the 2A relates only to militia service is not a main stream point of view.
guillaumeb
(42,649 posts)As evidence, the Constitution makes no provision for any standing armies.
hack89
(39,179 posts)You cannot show me a single state law that required people not in the militia to give up their guns. You cannot show a single time in American history when private ownership of guns independent of the militia was not the norm.
guillaumeb
(42,649 posts)
gejohnston
(17,502 posts)but was negated by 14A, unless you are willing to support Georgia's abortion law on principle.
hack89
(39,179 posts)And other laws. Why did they not implement laws restricting guns to militia service considering few people crossed state boundaries and federal laws regarding guns were therefore pretty meaningless?
gladium et scutum
(811 posts)Art 1 section 8 authorized Congress to create an army and a navy. Art 2 section 2 designates the President the CinC of the United States Army and Navy and the militia when called to national service.
The first standing infantry unit of the United States Army was created by Congress in 1784.
While Congress had the authority to create a standing army, they only authorized the smallest army that they though was necessary.
Use of the militias was to be the primary defense of the United States, when the need arose.
Snackshack
(2,541 posts)The 2nd Amendment does not guarantee an individual the right to unrestricted firearm ownership. The 2008 Heller decision set a new precedent concerning the first sentence of the 2nd Amendment but the court still recognized the need for restrictions/limits on ownership. Ownership is not unlimited and restrictions are not unconstitutional.
sharedvalues
(6,916 posts)friendly_iconoclast
(15,333 posts)I especially like how Waldman advocates a political strategy identical to the one the gestation slavers are
using against Roe v Wade, only directed in a different direction.
One lesson: patience. The fight for gun rights took decades. Another lesson, perhaps obvious: There is no substitute for political organizing. A century ago the satirical character Mr. Dooley famously said in an Irish brogue, “No matter whether th' Constitution follows th' flag or not, the Supreme Coort follows th' iliction returns.” Before social movements can win at the court they must win at the ballot box. The five justices in the Heller majority were all nominated by presidents who themselves were NRA members.
But even more important is this: Activists turned their fight over gun control into a constitutional crusade. Modern political consultants may tell clients that constitutional law and the role of the Supreme Court is too arcane for discussion at the proverbial “kitchen table.” Nonsense. Americans always have been engaged, and at times enraged, by constitutional doctrine. Deep notions of freedom and rights have retained totemic power. Today’s “Second Amendment supporters” recognize that claiming the constitutional high ground goes far toward winning an argument.
Liberal lawyers might once have rushed to court at the slightest provocation. Now, they are starting to realize that a long, full jurisprudential campaign is needed to achieve major goals. Since 2011, activists have waged a widespread public education campaign to persuade citizens that new state laws were illegitimate attempts to curb voting rights, all as a precursor to winning court victories. Now many democracy activists, mortified by recent Supreme Court rulings in campaign finance cases (all with Heller’s same 5-4 split), have begun to map out a path to overturn Citizens United and other recent cases. Years of scholarship, theorizing, amicus briefs, test cases and minority dissents await before a new majority can refashion recent constitutional doctrine.
https://www.google.com/search?q=right+wing+packing+courts&sitesearch=democraticunderground.com
https://upload.democraticunderground.com/100211189811
https://www.democraticunderground.com/1016232791
“Oh, we’d fill it,” McConnell said quickly, with that small smile of his. Court-packing — excuse me, loading the court with your ideological friends — is the one way you can set the nation’s political course no matter what voters decide year to year. “You want to have a long-lasting positive impact,” he explained. “Everything else changes. … What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of a judge is to follow the law.”
sharedvalues
(6,916 posts)friendly_iconoclast
(15,333 posts)...in regards to your statement:
I know no such thing.
I'm perfectly willing to listen to any counterarguments that you care to offer, and submit replies
However, any repeat of the previous style of argumentum ad nauseum
will be subject to well-earned mockery.
sharedvalues
(6,916 posts)Which I did.
sharedvalues
(6,916 posts)Because if you do that, you’re funding the NRA.
Do YOU fund the NRA by doing that?
friendly_iconoclast
(15,333 posts)....By Potential Opposition to Georgia Abortion Ban"
https://www.newsweek.com/pastor-robert-jeffress-says-disney-supports-murdering-children-potential-1441228
The evangelical pastor, known for his inflammatory comments about immigration and gay marriage and devout support of President Donald Trump, was seemingly invited to speak on Lou Dobbs Tonight on Friday to express his disdain for the company. Jeffress obliged, charging Disney with being “blinded by evil.”
“For Disney to do this when their whole market is children—they want to murder and support the murder of their future audience,” Jeffress, pastor of the First Baptist megachurch in Dallas, Texas, opined.
He continued: “That is not only not good morals. It’s not good business either. They are absolutely insane; they are blinded by evil in their support of abortion.”
Great minds think alike, eh?
It's amazing humanity made it this far, what with all these people out to kill children...
sharedvalues
(6,916 posts)friendly_iconoclast
(15,333 posts)https://www.democraticunderground.com/117235299#post26
It's hardly a new or original observation- it is the underlying thesis of Eric Hoffer's The True Believer: Thoughts On The Nature Of Mass Movements
http://en.wikipedia.org/wiki/The_True_Believer
friendly_iconoclast
(15,333 posts)Po-faced claims to be acting in others' best interests.
Mawkish appeals to emotion.
Bald-faced lies.
Disinformation campaigns including doctored video.
The willingness to act as if 'those people's" rights aren't really rights at all.
I've no doubt that a substantial proportion, if not a majority of NRA members hate Roe v. Wade and Griswold v. Connecticut
with the burning fury of a thousand suns- but then again, it's not their rights they see being trampled.
It's different when the jackboot is on the other foot, innit?
discntnt_irny_srcsm
(18,578 posts)
A blast from the past. 
hack89
(39,179 posts)As seen in the Heller decision.
sharedvalues
(6,916 posts)This kid was killed in DC in part because Scalia and the Republican judges prevented DC from regulating guns properly.
Scalia and Roberts and Alito and Thomas contributed to THIS KID’s death. This kid. Right here. Scalia bears responsibility for his death.
Republican gun fetishists get American kids killed.
And you help them, if you buy guns and ammo, because some of those profits go to the NRA.
hack89
(39,179 posts)The only right it protects is the right to keep a handgun in your home. That is it.
AWBs, registration, magazine size limits, training and storage requirements are all perfectly legal.
I also buy beer and bourbon. Do I also bear responsibility for every DUI death?
friendly_iconoclast
(15,333 posts)For example, our interlocutors repeated slurs against gun owners and those who dare disagree with them
are entirely different in tone and intention from those of people like Brigitte Gabriel and Steve King.
Why? Because Gabriel and King are evil, while sharedvalues' heart is pure and their cause is just.
Now, if you'll excuse me, I'm off to browbeat everyone about giving up their drivers licenses and
having their cars and trucks shredded by implying they need to atone for the thousands of traffic deaths
they're all partly responsible for...
friendly_iconoclast
(15,333 posts)Scalia and Roberts and Alito and Thomas contributed to THIS KID’s death. This kid. Right here. Scalia bears responsibility for his death.
Argument by repeated assertion, aka "argumentum ad nauseum"
Argument by vehemence:
http://www.don-lindsay-archive.org/skeptic/arguments.html#vehemence
If you have the facts, pound on the facts.
If you have the law, pound on the law.
If you don't have either, pound on the table.
The above rule paints vehemence as an act of desperation. But it can also be a way to seize control of the agenda, use up the opponent's time, or just intimidate the easily cowed.
https://en.wikipedia.org/wiki/Appeal_to_pity
sharedvalues
(6,916 posts)Dead bodies are evidence. Strong evidence. In every court in the land.
I know it hurts you to hear that your opinions get kids killed. But bluntly: it’s true. Please join the side of right.
friendly_iconoclast
(15,333 posts)Examples
An appeal to pity can be seen in many charitable advertisements. Charities appeal to your pity of less fortunate people or animals in order for you to be more likely to donate to that particular charity.
"You must have graded my exam incorrectly. I studied very hard for weeks specifically because I knew my career depended on getting a good grade. If you give me a failing grade I'm ruined!"
"Ladies and gentlemen of the jury, look at this miserable man, in a wheelchair, unable to use his legs. Could such a man really be guilty of embezzlement?"
"Think of the children."
"You must believe in Jesus because he died for your sins."
Straw Man
(6,774 posts)Last edited Sun Jun 2, 2019, 06:36 PM - Edit history (1)
Evidence of what? Of whatever you say it is? No court in the land works that way.
Do you buy gasoline? Then you are responsible for genocidal violence in Sudan and Indonesia, among other places. Please abandon your vehicle and ask for forgiveness. The "side of right" demands it.
MarvinGardens
(781 posts)First of all, this is a democracy, and I have every bit as much right to my opinion on law and government as the most educated attorney or historian. I am not defending rampant ignorance or stupidity, but not all of us have time in our lives to become Supreme Court justices. And this is a discussion board where individuals can anonymously (or not) present their views. If you are of the opinion that only the views of legal scholars matter, then consider that this reply isn't really for you, but for others who may benefit from hearing a counterpoint to your views.
Not that I really need to disagree with the author of this piece much, nor with Burger or Waldman. So the 2nd Amendment was not interpreted (i.e. by judges, attorneys, and politicians) to protect an individual right to own a gun until recently. For the sake of this argument here, I'll just say, OK, I accept that. But it is now, right? Right? By the Supreme Court, no less. Oh, but you might say, this was a bullshit political decision, informed by a bullshit revisionist historical analysis. Do I read you right?
Well, just because an article of our Constitution was not interpreted in the past to protect an individual right, does not mean that it is illegitimate to interpret it that way now. The Sixth Amendment was not always interpreted to provide for a public defender. The Fourteenth Amendment was not always interpreted to outlaw segregation in public accomodations, protect the rights of whites and blacks to marry, or recognize a right to same sex marriage. Various types of speech were once prosecuted as obscenity, sedition, or desecration, but are now protected by the First Amendment. The Fourth Amendment did not always provide a "penumbra of privacy" that protected the right to an abortion, but it does now. Do you think that these modern interpretations are also wrong because they deviate from previous historical interpretations? It is my un-scholarly opinion that Plessy v. Ferguson was wrong and Brown v. Board of Education was correct. Do you think that Brown versus Board was wrong because it went against established precedent? I doubt it.
Anyway, sometimes rights are recognized when public opinion shifts. This is true of many of the above examples. From your cited article:
Is this changing interpretation of rights political? Yes, yes it is. The Constitution is ultimately a political document
My arguments above notwithstanding, you could still argue that the Heller decision was poorly reasoned and incorrect, irrespective of it being a modern versus an older interpretation. Even if you successfully argued this and I agreed with your argument, it would not change my position on the right to keep a firearm being an individual right. Irrespective of the Second Amendment, I believe the right to keep a reasonable weapon for defense of one's home and family is a basic human right, an unenumerated right protected by the Ninth Amendment. Furthermore, I believe that the Fourth Amendment penumbra of privacy forbids the government from coming into my home to seize an inanimate possession of mine (guns, sex toys, drugs, etc.), if I am not using that object to harm anyone else, unless they have an extremely compelling reason to do so. Not only is this latter interpretation of the Fourth Amendment un-scholarly, but I recognize that it does not have mainstream acceptance. Nonetheless, it is my opinion, and I have a very expansive view of civil liberties.
For the sake of argument, let's say that you successfully defeated all of my rights arguments above, in the courts of law and public opinion. I would still argue for statute law to grant the privilege of owning a weapon for home defense to the vast majority of non-criminal citizens, because it is good public policy. The police can't be everywhere all the time.
Lastly, "The Founders never intended to create unregulated guns" is a bit of a straw man. I've never read anyone on DU arguing in favor of unregulated guns.
discntnt_irny_srcsm
(18,578 posts)You have a gift for understatement. Were that straw man lit on fire, you could see it from space with the naked eye. 
MarvinGardens
(781 posts) 
jimmy the one
(2,717 posts)marvin gardens: ... just because an article of our Constitution was not interpreted in the past to protect an individual right, does not mean that it is illegitimate to interpret it that way now.
Is this changing interpretation of rights political? Yes, yes it is. The Constitution is ultimately a political document
Altering the construction of an amendment to fit modern thought is indeed invalid when the reinterpretation is based on revisionist history of the constitution, a distortion of original intent, & a contradiction of stare decisis thru over 2 centuries -- INVALID.
Were scalia & his supreme goon squad to have argued that under current modernity americans have a right to keep & bear arms based on 21st century popular belief, that would have been hard to argue against, but they didn't; scalia claimed that 2nd amendment had all along been intended to protect an individual right.
In 1939 the supreme court previously 'last' ruled on the 2ndA prior to 2008 heller/mcdonald, a unanimous 8-0 ruling in 1939 (1 recusal since new arrival) and offered these interpretations & opinions:
1939 supreme court Miller decision: UNANIMOUS DECISION FOR UNITED STATES The purpose of the Second Amendment was to maintain effective state militias; Congress could require registration of a 12-gauge sawed-off shotgun if carried across state lines
The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.
https://www.oyez.org/cases/1900-1940/307us174
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=207511
1939 Miller: 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.
https://supreme.justia.com/cases/federal/us/307/174/case.html
This 1939 supreme court ruling on miller was UNANIMOUS. Not one justice felt the above wording to be wrong or misleading about any individual rkba, they clearly called it for the militia interpretation. Not one justice thought 'whoa fellow justices, look how we worded that, future generations are gonna think we're ruling for a militia interp' Nope, all thought it was proper wording.
.. Note also, the 9th recused justice later wrote a book or paper supporting gun control.
Tack on amicus brief citing adams by justice dept in 1938 to the 1939 supreme court re miller: In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment, the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights. http://www.guncite.com/miller-brief.htm
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=207435
friendly_iconoclast
(15,333 posts)Miller no more applies today than Dred Scott or Plessy v Ferguson do
You have obviously been done a great disservice in the past, by whoever it was that convinced you that
the sheer weight of verbiage used while making an argument was a marker for that arguments validity.
jimmy the one
(2,717 posts)icon: I remind you once again, 'amount of verbiage' =/= 'validity of argument'...
Advice ignored; You are not the one to be offering advice to most anyone mister, above the age of 21.
(PS: heal thyself, re your shannon watts/monsanto bulloffal)
icon: Miller no more applies today than Dred Scott or Plessy v Ferguson do
Specious, neither dred scott nor plessy/ferg were amendments written in 1791, they were furthering developments of civil rights issues; the argument is not what scalia perverted by heller which became 'judicial' law, it's what was intended by the original 2nd amendment.
Note how most new states used 'the people' to support the militia view: not one solely had an individual rkba, they all included militia & some (2, vermont & Pennsy) had an individual and militia right:
(rightwing) Madison Brigade: Eight of the original states enacted their own bills of rights prior to the adoption of the {US} Constitution. The following states included an arms-rights provision in their state constitution...
VIRGINIA (Jun12, 1776) That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.
DEL (Sept11,1776) That a well-regulated militia is the proper, natural and safe defence of a free govt.
PENNSY (Sep28, 1776) XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.
MARYLAND (Nov 11, 1776) XXV. That a well-regulated militia is the proper and natural defence of a free government.
NOR CAROLINA (Dec18, 1776) XVII. That the people have a right to bear arms for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under the strict subordination to, and governed by, the civil power.
VERMONT (July 8, 1777) XV. That the people have the right to bear arms for the defence of themselves and the State
MASSA (Oct25, 1780) XVII. The people have a right to keep and bear arms for the common defence.
NEW HAMPSHIRE (June 2, 1784) XXIV. A well regulated militia is the proper, natural, and safe defence of a state.
http://www.madisonbrigade.com/library_bor_2nd_amendment.htm
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
.. look at New York & Rhode Island proclamations (same link) about Constitution ratification: NEW YORK CONVENTION (July 26,1788) That the people have the right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
RHODE ISLAND RATIFICATION CONVENTION (May 29, 1790) XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
The Rhode Island preceding preface was 'That the people have the right to keep & bear arms'.
Was that therefore the 'declaratory clause' according to Scalia? so that the well reg'd militia clause following is the 'operative' clause? pls explain judicial pig scalia.
NEW YORK CONVENTION (July 7,1788) {prior to above} That the militia should always be kept well organized, armed and disciplined, and include, according to past usages of the states, all the men capable of bearing arms, and that no regulations tending to render the general militia useless and defenceless, by establishing select corps of militia, of distinct bodies of military men, not having permanent interests and attachments to the community, ought to be made.
friendly_iconoclast
(15,333 posts)However, in the spirit of collegiate discourse, I have found helpful websites that sell supplies useful for
the vast majority of gun control advocates. Perhaps you'll find something suitable:
https://www.amazon.com/s?k=heavy+duty+keyboard&ref=nb_sb_noss_1
https://www.amazon.com/s?k=office+chairs&ref=nb_sb_noss_1
http://www.tigerdirect.com/applications/category/category_slc.asp?CatId=142&srkey=keyboard
MarvinGardens
(781 posts)Last edited Fri Jun 7, 2019, 06:24 AM - Edit history (1)
that the practice of carrying concealed weapons was not protected.
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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.
I wonder why they felt the need to add that qualifier. They could have left in the old language, if it was just an uncontroversial old passage that, rather than protecting an individual right, instead weirdly protected the power of the state to do something they already had the power to do, which is to exercise their police power to keep order. Hmm.
But I'm glad you brought up the state constitutions. I can better understand the older view (which appeared in the World Book encyclopedia I had growing up) that the 2nd Amendment of the federal constitution existed to prevent the feds from disarming a state militia. But as the states can exercise the general police power as long as they do not run afoul of the federal and state constitutions, why do you suppose so many states felt the need to put such a clause in the "bill of rights" sections of their own constitutions? Were the early founders of those state governments concerned that the legislature would not arm their militias unless they were granted the "right" to do so (even though states don't have rights, they have powers)?
And also, several of the state constitutional clauses you quoted above clearly and unambiguously protect an individual right to bear arms for self defense. Specifically PA, VT, MA, NY. If the militia language in the federal and various state constitutions says anything, it says to me that not only do I have the right to possess arms that would be needed for defense of the state, but that the state has an obligation to train me in the use of said arms, so that I am "well regulated".
As to Miller, it was a narrow ruling that acknowledged that Congress had the power to prohibit the movement of sawed-off shotguns in interstate commerce. It is clear from reading it (as I had read it numerous times before the Heller decision) that it does not apply to weapons that would be useful for the common defense.
Also, as I stated in my prior post, my right and my privilege to keep a weapon does not rest solely on the 2nd Amendment. What do you think about my other arguments? As a refresher, the right to self defense is a natural unenumerated right, as natural as "you own yourself, and you own your own body"; and that my right to keep an instrument of self defense in my home is protected by the 4th amendment penumbra of privacy, and any attempt by government to invade that privacy ought to be invalid, the poison fruit of the poison tree. Details in my prior post.
Edits: Spelling.
jimmy the one
(2,717 posts)NC state constitution 'have arms' decree: Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.
marvin: The modern N.C. constitution added the qualifier ... I wonder why they felt the need to add that qualifier.
No, the modern NC constitution does have that qualifier, no state does today that I know of. The proscription on carrying concealed firearms to some extent or another was passed & held by about 10 states in the 1800's, ironically western or southern for the most part. Back then open carry was OK since bar drinkers & card players & restaurant goers knew you were armed & were aware, while carrying concealed created a covert way of taking a gun out which was unethically considered 'cheating'.
marvin: They could have left in the old language, if it was just an uncontroversial old passage that, rather than protecting an individual right,
No, these state proscriptions on carrying concealed were not protecting any right - the proscriptions applied to state legislatures & their abilities to fine or imprison violators. The ability to pass gun control laws is & was the issue, while few back then argued it violated the 2nd amendment.
marvin: As to Miller, it was a narrow ruling that acknowledged that Congress had the power to prohibit the movement of sawed-off shotguns in interstate commerce. It is clear from reading it that it does not apply to weapons that would be useful for the common defense.
That's the gun lobby spin of 1939 Miller, for sure, to blunt it, but you need to reread the following, since you are intentionally ignoring the crux:
1939 Miller: 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.
https://supreme.justia.com/cases/federal/us/307/174/case.html
This 1939 supreme court ruling on miller was UNANIMOUS. Not one justice felt the above wording to be wrong or misleading about any individual rkba, they clearly called it for the militia interpretation. Not one justice thought 'whoa fellow justices, look how we worded that, future generations are gonna think we're ruling for a militia interp' Nope, all thought it was proper wording.
.. Note also, the 9th recused justice later wrote a book or paper supporting gun control.
Tack on amicus brief citing adams by justice dept in 1938 to the 1939 supreme court re miller: In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment, the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights. http://www.guncite.com/miller-brief.htm
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=207435
MarvinGardens
(781 posts)I appreciate the historical info about concealed vs open carry. Someone open carrying "has nothing to hide". NC had a long history of heavily regulating concealed carry, though open carry was technically legal without any permit being required, when I was living there. They also required a permit from the local sheriff to purchase a handgun. The "shall issue" concealed carry permits were relatively recent, I think. Personally I think open carry by civillians in urban areas is a bad idea, legal or not, but that's another discussion.
You seem to be repeating yourself with regard to Miller. That justice dept amicus brief carries no legal weight, does it? You think Miller only protects the "rights" of states to have a militia, something they already have the inherent power to do. I get it, and I disagree in part.
Let's move on. What about my other rights-based arguments? Or my argument for a statutory privilege, absent a right?
friendly_iconoclast
(15,333 posts)...hence our interlocutors' emphasis on it.
discntnt_irny_srcsm
(18,578 posts)...Supreme Court rulings on the Second Amendment...
https://en.wikipedia.org/wiki/List_of_firearm_court_cases_in_the_United_States#United_States_Supreme_Court_cases
I reiterate, when all you have is a hammer, everything starts to look like a nail. It does eventually start to look awkward stuffing that square Miller peg into the round hole of the law, rights and liberty.
AtheistCrusader
(33,982 posts)show up to present a case at all... I guess you go with what you have.
sarisataka
(21,001 posts)And please correct me if I am in error, the position that there is not "an unfettered individual right to a firearm" truly means there is no individual right to a firearm.
To further explore this position, do you believe there is a right to self-defense or would you support the position put forth by a former Deputy Mayor of Public Safety for DC who stated if you find yourself the victim of a crime that it is better to submit, even to the point of being seriously injured, than to defend one's self?
discntnt_irny_srcsm
(18,578 posts)Only if you're a snail. 
sarisataka
(21,001 posts)The Deputy Mayor made his statement with his bodyguard, an armed DC police officer, standing at his side.
Victimhood is apparently only for regular folks, not Important people.
discntnt_irny_srcsm
(18,578 posts)...all at once... 
gejohnston
(17,502 posts)was in a Sunday supplement expressing his own authoritarian bullshit. Nothing he said is based on scholarship or anything else. Quite frankly, it was Burger's personal opinion, and the same as this guys. Burger cited no evidence to back up his claims.
Also, Nixon was as anti gun and authoritarian as Burger.
This applies to Burger as well as Stevens
https://ethicsalarms.com/2019/05/16/from-the-appeal-to-authority-files-why-should-we-care-what-john-paul-stevens-thinks-now/
Appeal to authority when none is valid.
Also, guns are not unregulated.
sharedvalues
(6,916 posts)But please, tell us again how consensus legal opinion 40 years ago was invalidated by conservative billionaires funding the Federalist Society and installing Roberts, Scalia, Thomas, and Alito.
American kids are getting killed because of Republican gun fetishists, the GOP donors that court the gun fetishists for votes, and the non-Republicans that support them.
gejohnston
(17,502 posts)There never was a legal consensus opinion 40 years ago.
hack89
(39,179 posts)Last edited Thu Jun 6, 2019, 12:13 PM - Edit history (1)
There was no such thing. Before Heller there have not been any big cases that defined the 2A.
friendly_iconoclast
(15,333 posts)See also reply #46 in this thread.
hack89
(39,179 posts)because Miller had died before the trial?
Miller says that the the 2A does not apply to every type of weapon. It did not say that militia service is required for gun ownership.
Miller was a very limited decision - it even states in the decision that it is limited and should not be seen as a thorough examination of the 2A.
friendly_iconoclast
(15,333 posts)...despite any handwaving, bluster, and logorrhea to the contrary
discntnt_irny_srcsm
(18,578 posts)1> Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.
2> In the absence of any evidence...
I highlight #1 to report the court's opinion of what weapons should remain unregulated, in the words of the unanimous Supreme Court, from a case which many favoring everything from outright bans to limits, restrictions and permits often quote.
Ask yourself, "What weapons are appropriate for the state militia?". Such weapons are the ones which "are free from government regulation".
I highlight #2 to indicate that the court pointed to the lack of evidence presented as contributing to the decision. Miller was a known criminal. He had given evidence in court against other criminals. He was a known target for retribution. This is rather well proven by his murder which took place in April of 1939. Miller's appearance in court was prevented by his death. His counsel did not appear either. The only arguments and evidence were presented by the government prosecutor.
friendly_iconoclast
(15,333 posts)sharedvalues
(6,916 posts)Also read the article in the post above. Cheers
discntnt_irny_srcsm
(18,578 posts)...to vote for tax cuts for billionaires."
You remind me of a cartoon:
discntnt_irny_srcsm
(18,578 posts)It's still the same: Amendment II - 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.
https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-the-u-s-bill-of-rights
jimmy the one
(2,717 posts)The 2008 supreme court heller ruling was a political verdict, 5-4, and a subversion of the 2nd amendment by right wing demagogue scalia.
In 1939 the supreme court previously 'last' ruled on the 2ndA prior to heller, a unanimous 8-0 ruling (1 recusal since new arrival) and offered these interpretations:
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.
https://supreme.justia.com/cases/federal/us/307/174/case.html
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument
This 1939 supreme court ruling on miller was UNANIMOUS. Not one justice felt the above wording to be wrong or misleading about any individual rkba, they clearly called it for the militia interpretation. Not one justice thought 'whoa fellow justices, look how we worded that, future generations are gonna think we're ruling for a militia interp' Nope, all thought it was proper wording.
.. Note, the 9th justice later wrote a book or paper supporting gun control.
Tack on amicus brief citing adams by justice dept in 1938 to the 1939 supreme court re miller: In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment, the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It {2ndA} refers to the militia, a protective force of government; to the collective body and not individual rights. http://www.guncite.com/miller-brief.htm
Scalia kicked stare decisis (scotus bound by previous interpretations handed down thru the years), in the ass & the right wing put him on a pedestal.
The Militia Act of 1792, coming one year after the 2ndA, was intended to define what the 2nd amendment described - the well regulated militia part. The Militia Act of 1792 was superseded under Teddy Roosevelt circa 1903, disestablishing the citizen's militia part & replacing the 1792 act with the US militia code which established the national guards & the unorganized militia.
US Militia code, circa 1903 under teddy roosevelt: 10 U.S. Code § 246 - Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, .. et cetera:
(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.
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=206865
Note in class 2, the unorganized militia (99% of americans belong or belonged or will belong) does not meet the requirements of the 2nd amendment, in that, by definition, an unorganized militia is NOT well regulated. It could not possibly be what madison intended in 1791..
friendly_iconoclast
(15,333 posts)friendly_iconoclast
(15,333 posts)...according to its diktats.
I'm not sure that our (current) World's Greatest Self-Proclaimed Constitutional Authority quite
understands *that* small, inconvenient truth...
friendly_iconoclast
(15,333 posts)friendly_iconoclast
(15,333 posts)sharedvalues
(6,916 posts)AtheistCrusader
(33,982 posts)sharedvalues
(6,916 posts)I choose to recognize facts and follow the truth:
More guns means more deaths,
And Republicans rewrote the 2nd Amendment to get votes for billionaires via gun identity politics.
Also, here’s another truth:
If you buy guns or ammo, you’re giving money to people who get American kids killed. That makes you complicit.
AtheistCrusader
(33,982 posts)Excise tax. That's a direct cause and effect.
The type of 'cause and effect' you are talking about, applies to municipal water systems, and people who make stairs.
discntnt_irny_srcsm
(18,578 posts)Words like "complicit" and "evidence" to be specific...
friendly_iconoclast
(15,333 posts)...as demonstrated in this very thread.
discntnt_irny_srcsm
(18,578 posts) 
bigbrother05
(5,995 posts)friendly_iconoclast
(15,333 posts)discntnt_irny_srcsm
(18,578 posts)"There are over 550 million firearms in worldwide circulation. That's one firearm for every twelve people on the planet. The only question is: How do we arm the other 11?"
sharedvalues
(6,916 posts)MarvinGardens
(781 posts)What do you think about the massive power imbalance that exists, currently? All these RW nutters armed to the teeth, and then... us. Not that we are all unarmed, but come on. I hope the day doesn't come that we look back and realize that our collective (in)action is the dumbest possible thing we could have done.
MythosMaster
(448 posts)offered up as the solution.
discntnt_irny_srcsm
(18,578 posts) yagotme
(3,819 posts)Then, why didn't they mandate serialization of ALL weapons made at the time? Why allow all those "unregulated" firearms to be made and sold, without a serial # for tracking, at least until 1968? Seems the FF really dropped the ball on that one. Or, they didn't really want to regulate guns. My $ is on the latter, because that could have easily been corrected with an amendment.
yagotme
(3,819 posts)including the buyer's info, description/caliber/gauge of weapon, and SERIAL #. How can you tell one fowling piece from another, made by the same "business", without a Ser.#? The lack of mandatory serial #'s surely would have been a tipoff to the Founders against "unregulated" arms, but no action was taken on this until 1968. Therefore, it is my hypothesis, that they didn't care about "registration". They did put "the people" in the 2d Amendment, after all, and I assume that means the same as "the people" in the other amendments, as well. After all, heaven forbid the "militia" couldn't freely assemble, or the "militia" be secure in their persons, houses, papers, and effects, etc. Hope this clears that up.
ETA: Although, a properly "regulated" double barrel shotgun is a beautiful thing. ("Regulated", as the barrels are aligned so both impact the same spot at a certain range. Usually 25-30 yards, IIRC.)
sharedvalues
(6,916 posts)discntnt_irny_srcsm
(18,578 posts)1. Make a 3 column list: manufacturer, serial number, buyer.
2. Add a record with each sale.
The Founders didn't do this. As technologically advanced as making a list may seem to some restriction fanatics, the Founders didn't register guns.
Some additional news you may find useful:
* Semiautomatics are not banned.
* Semiautomatics may become banned about 10 minutes after hell freezes.
yagotme
(3,819 posts)It can't work if semi autos from before 1968 aren't serialized, as there is no "record" of their ownership, especially if they were purchased prior to all the recordkeeping requirements. Lotta guns out there that aren't on file. Prior to 1968, very few guns (full auto, destructive devices, etc.) were on file. Full autos prior to 1934 weren't on the books, either. The "regulation problem", you see, is of fairly recent vintage. Semi and full auto were around for quite some time before someone tried to get them all "papered".
jmg257
(11,996 posts)Otherwise, so many of us being qualified and a member for/of the Militia of these United States, we could (would have to in fact) buy that M16 and M9...and all the assorted accoutrements, like hi-cap mags, bayonets, etc.
When the congress took it upon themselves to re-invent the Militias, they should have dealt with the amendment meant to secure their arms. Apparently didn't think it was an issue, even though they codified that We the People were/are still part of the Militias.
gejohnston
(17,502 posts)it is, and always have been, an individual right like the rest of the BoR.