How The Second Amendment Was Reinterpreted To Protect Individual Rights....Less Than 50 Years Ago

[RIP U.S. Democracy]

That lawful purpose, however still exists. You aren't passing a use restriction, you're trying to pass a possession restriction.

LOL....Sure. Whatever, man. A distinction that means nothing.

The Second Amendment, like all of the Bill of Rights, is a restriction on government power. It neither defines nor limits the right, any more than the lack of electronics at the ratification of the First Amendment limits the applicability of the protections of the First Amendment to pen and ink or the printing press.

Exactly. Which is why it's foolish for you to repeatedly claim that Americans have an inalienable right to own ANY gun for individual non-military use, let alone an AR-15. Nope, Americans do not have that inalienable right.

I'm not going to waste our time pointing out to you, again, that the Framers noted an individual right to bear arms for self defense multiple times in act contemporary to the states' ratification of the Bill of Rights.

Wrong yet again. As this Yale law professor already pointed out to you in post #1 --

“An individual’s right to use guns in self-defense is not expressly written in the Constitution,” said Reva Siegel, a law professor at Yale who has written prominent law review articles on the subject.

Again, you seem to be citing a case that overturned a ban on a class of firearms in common use for lawful purposes to support a ban on a class of firearms for lawful purposes. Unless you can establish that AR-15s are "dangerous and unusual" as defined by SCOTUS, you can't really make a case.

No, I'm explaining to you that the Federal government still has the right to restrict ownership of ANY gun it wants to. Just like Scalia explained to you.

 

[RIP U.S. Democracy]

What difference does the Constitution make, when you've already argued it is irrelevant?

Yeah? Where did I do that?

I can't help it if you still don't understand the 2nd Amendment and the Heller decision.

You helped make my case in post #260, yet you're still confused. Poor man.

 

[Rucker61]

LOL....Sure. Whatever, man. A distinction that means nothing.


Exactly. Which is why it's foolish for you to repeatedly claim that Americans have an inalienable right to own ANY gun for individual non-military use, let alone an AR-15. Nope, Americans do not have that inalienable right.

There's no limit on this right expressed anywhere in the Constitution or Bill of Rights.

Wrong yet again. As this Yale law professor already pointed out to you in post #1 --

“An individual’s right to use guns in self-defense is not expressly written in the Constitution,” said Reva Siegel, a law professor at Yale who has written prominent law review articles on the subject.

FFS, there are not rights all at expressed in the Constitution. That's not the purpose of the Constitution, and you'd like a law professor would know that. The Constitution has one purpose: to enumerate the limited powers of government.

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. There's nothing in the Constitution giving the federal government any power of the right of the citizenry to keep and bear arms. It's not there.

No, I'm explaining to you that the Federal government still has the right to restrict ownership of ANY gun it wants to. Just like Scalia explained to you.

Scalia didn't say that, nor was his the last voice on the issue:
“The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). "

Caetano v Massachusetts, 2016.

Given that SCOTUS has affirmed that the Second Amendment protects all "bearable arms" (Caetano v Massachusetts) "in common use for lawful purposes" (DC v Heller) or having a "reasonable relationship to the preservation and efficiency of a well regulated militia" (US v Miller) , and incorporates those protections against the states (Chicago v McDonald), how do you propose to Constitutionally ban any particular firearm?

If what you said was true, the federal government could ban handguns, and Heller clearly shows that handguns are a protected class. Heller and Caetano both show that all classes of bearable arms in common use for lawful purposes are protected.

 

[RF667799]

Yeah? Where did I do that?

I can't help it if you still don't understand the 2nd Amendment and the Heller decision.

You helped make my case in post #260, yet you're still confused. Poor man.

Where you did that, is every time you switch from arguing constitution to government can do whatever it wants. You have one set of goalposts for both ends of the field.

 

[RIP U.S. Democracy]

Where you did that, is every time you switch from arguing constitution to government can do whatever it wants. You have one set of goalposts for both ends of the field.

It doesn't matter where I move the goal posts. I'm one step ahead of you with two legs and one arm tied behind my back.

You already made my case for me in post #260. I don't have to say anything else.

 

[RIP U.S. Democracy]

There's no limit on this right expressed anywhere in the Constitution or Bill of Rights.

And the right to own guns in self-defense or for recreation is also not explicitly granted anywhere in the Constitution. Here, let me remind you. --

An individual’s right to use guns in self-defense is not expressly written in the Constitution,” said Reva Siegel, a law professor at Yale who has written prominent law review articles on the subject.

FFS, there are not rights all at expressed in the Constitution. That's not the purpose of the Constitution, and you'd like a law professor would know that. The Constitution has one purpose: to enumerate the limited powers of government.

Not the purpose of the Constitution??? OK...let's go with that. No more Bill of Rights and no more 2nd Amendment.

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. There's nothing in the Constitution giving the federal government any power of the right of the citizenry to keep and bear arms. It's not there.

Again, Scalia disagrees with you. --

“Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

- JUSTICE ANTONIN SCALIA
DISTRICT OF COLUMBIA V. HELLER, 2008

Scalia didn't say that, nor was his the last voice on the issue:

Uhhh....yeah, he did. See above.

“The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). "

So?

Caetano v Massachusetts, 2016.

Given that SCOTUS has affirmed that the Second Amendment protects all "bearable arms" (Caetano v Massachusetts) "in common use for lawful purposes" (DC v Heller) or having a "reasonable relationship to the preservation and efficiency of a well regulated militia" (US v Miller) , and incorporates those protections against the states (Chicago v McDonald), how do you propose to Constitutionally ban any particular firearm?

If what you said was true, the federal government could ban handguns, and Heller clearly shows that handguns are a protected class. Heller and Caetano both show that all classes of bearable arms in common use for lawful purposes are protected.

Handguns are only a "protected class" because laws have not been passed by Congress to ban them. It's literally that simple.

And Congress CAN pass laws to ban hand guns if it wants to. Even Scalia agrees with me, as he stated above.

 

[Rucker61]

And the right to own guns in self-defense or for recreation is also not explicitly granted anywhere in the Constitution. Here, let me remind you. --

We'll stop here. No rights are granted by the Constitution. Period. It's unbelievably stupid that your professor makes this claim. It's like he doesn't understand the Constitution at all.

 

[RIP U.S. Democracy]

We'll stop here. No rights are granted by the Constitution. Period. It's unbelievably stupid that your professor makes this claim. It's like he doesn't understand the Constitution at all.

Have you not heard of the Bill of Rights? I have no idea what you're saying right now.

If you believe this, then why do you and the other Trumpsters on here constantly babble on about the 2nd Amendment????

But that's the problem with Trumpsters -- they are ignorant narcissistic know-it-alls who think they have more knowledge than Constitutional law professors.

 

[RF667799]

And the right to own guns in self-defense or for recreation is also not explicitly granted anywhere in the Constitution. Here, let me remind you. --

An individual’s right to use guns in self-defense is not expressly written in the Constitution,” said Reva Siegel, a law professor at Yale who has written prominent law review articles on the subject.


Not the purpose of the Constitution??? OK...let's go with that. No more Bill of Rights and no more 2nd Amendment.


Again, Scalia disagrees with you. --

“Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

- JUSTICE ANTONIN SCALIA
DISTRICT OF COLUMBIA V. HELLER, 2008



Uhhh....yeah, he did. See above.


So?


Handguns are only a "protected class" because laws have not been passed by Congress to ban them. It's literally that simple.

And Congress CAN pass laws to ban hand guns if it wants to. Even Scalia agrees with me, as he stated above.

Conflating two different parts of the decision, and mixing up which one is supposed to support you. Doing your usual shuffle between constitutional and constitution don't mean shit.

Is that deliberate, or does it just come out all ****ed up like that? Seriously...I'm curious about stuff like that.

 

[Willie Orwontee]

Again, so what? I already addressed this. This does not mean what you think it means.

This repeated declaring, without any evidence, that my posts showing with direct quotes, the dissents endorsed the individual right and agreed with Scalia on that point, was "simplistic and simply wrong" and that I'm "cherry-picking certain aspects of Breyer's dissent" and my position on the dissents is "nothing but [my] opinions" and that I "totally misrepresented what Breyer was saying", is unconvincing because it is unsupported.

That you are deeply invested in your incorrect belief is obvious, but that you cannot support that belief with any knowledge of the law citing actual sources (a newspaper opinion piece is not that) is also obvious. The only justification you provided trying to support your belief (Breyer was explaining that "Americans have the individual right to form militias") was immediately destroyed, so your claims that I'm "categorically wrong" and that you have already proved that I'm wrong, is woefully deficient.

LOL....Scalia ignored his whole bullshit "Constitutional Originalist" philosophy in the Heller ruling -- he completely ignored the word "militia" in the 2nd Amendment

That he did not give any part of the declaratory clause qualifying or conditioning effect on the right of the people to keep and bear arms you want it to have, does not mean he ignored the declaratory clause.

Again, because the right to arms is among our original, fundamental, pre-existing rights that the people possessed before the Constitution was ratified and since no part of the right to arms was ever conferred to the care and control of the federal government, that demands certain truths be understood and accepted without deviation or exception.

Because the right is not granted, given, created or established by the 2nd Amendment;
means the right of the people is not in any manner dependent on the words of the Constitution for its existence,
that also means one cannot legitimately argue the right to keep and bear arms is dependent on, or conditioned / qualified by, a citizen's attachment, association or membership in a structure (the Art I, §8 organized militia) that is itself, entirely dependent on the Constitution for its existence,
which means interpreting words upon which the right does not in any manner depend, into having conditioning, qualifying or restrictive effect on the right to arms is illegitimate and anti-constitutional.

It is those truths that the liberal dissenting Justices ignored / dismissed / violated, which is why their opinions are wrong (as are yours).

and tried to make the preposterous claim that the 2A allows you to own any gun you want. As I cited in post #1.

He didn't say that, in fact the said the exact opposite.

Scalia said "the right secured by the Second Amendment is not unlimited. . . . the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose".

Are you purposefully lying or do you just not know what Heller said?

 

[Willie Orwontee]

If you're going to accuse Stevens of hypocrisy, Scalia was MUCH more hypocritical.

Stevens' hypocrisy is a larger discussion that is centered on his endorsement of the penumbral rights theory and his situational adherence (WRT the RKBA/2nA) to the foundational principles of the penumbral rights theory, as set-out in Justice Harlan's dissent in Poe v Ullman, which is the foundation for Griswold v Ct. which was the basis for Roe v Wade . . .

See my previous comment. Scalia completely ignored the word "militia" in the 2A. As a "Constitutional Originalist", he's not supposed to do that. It shows that Scalia has always been a right wing partisan and full of shit

Scalia not giving any part of the declaratory clause legal weight, is the originalist application; that was the only possible constitutionally legitimate determination that respects the framers' intent and SCOTUS precedent.

Yeah, you won't touch Scalia's comment in the Heller case about the Federal government being allowed to regulate guns. How cowardly of you.

I thought you said Scalia claimed that the 2A allows you to own any gun you want?

Actually, Scalia said that the exemplary restrictions he noted, the various "longstanding prohibitions" were merely "presumptively lawful regulatory measures". His list was not a emphatic statement declaring the Constitutionality of those prohibitions and regulatory measures. He was just clarifying that the narrow Heller decision, only examining the challenged DC statutes, did not bring those laws into immediate question.

In actual effect, Scalia's characterization, that those laws were merely "presumptively lawful", has been interpreted by lower federal courts to mean that the presumption can be rebutted / challenged. There have been cases where the US government has strutted into court, just claiming Heller said the felon dispossession was constitutional, that argument was rejected by the court. The court said SCOTUS said the law was only presumptively constitutional, so the US government still had to prove the law was constitutional.

You can't explain your point regarding the 2016 case, either. Because you don't have one.

I have one, I just don't think you would understand it, you haven't shown any capacity to understand any aspect of how the Constitution operates and especially how the Supreme Court enforces the Constitution.

I'm considering replying to your post #265 and your sloppy conflating "type" and "style" as it relates to arms.
What "type" or "style" of arm is a stun gun, that affords it 2ndA protection demanding SCOTUS invalidate a state law banning the possession and use of stun guns by regular, private citizens?

.

 

[RIP U.S. Democracy]

This repeated declaring, without any evidence, that my posts showing with direct quotes, the dissents endorsed the individual right and agreed with Scalia on that point, was "simplistic and simply wrong" and that I'm "cherry-picking certain aspects of Breyer's dissent" and my position on the dissents is "nothing but [my] opinions" and that I "totally misrepresented what Breyer was saying", is unconvincing because it is unsupported.

That you are deeply invested in your incorrect belief is obvious, but that you cannot support that belief with any knowledge of the law citing actual sources (a newspaper opinion piece is not that) is also obvious. The only justification you provided trying to support your belief (Breyer was explaining that "Americans have the individual right to form militias") was immediately destroyed, so your claims that I'm "categorically wrong" and that you have already proved that I'm wrong, is woefully deficient.

I explained to you EXACTLY why you are wrong. You are only looking at only one aspect of the Heller ruling. Yes, your interpretation is very simplistic, as I already explained.

You want additional support? Here, I'll refer you again to post #1 --

An individual’s right to use guns in self-defense is not expressly written in the Constitution,” said Reva Siegel, a law professor at Yale who has written prominent law review articles on the subject.

That is a correct statement, no matter how much word soup you throw at me to try to muddy the waters.

That he did not give any part of the declaratory clause qualifying or conditioning effect on the right of the people to keep and bear arms you want it to have, does not mean he ignored the declaratory clause.

Again, because the right to arms is among our original, fundamental, pre-existing rights that the people possessed before the Constitution was ratified and since no part of the right to arms was ever conferred to the care and control of the federal government, that demands certain truths be understood and accepted without deviation or exception.

Because the right is not granted, given, created or established by the 2nd Amendment;
means the right of the people is not in any manner dependent on the words of the Constitution for its existence,
that also means one cannot legitimately argue the right to keep and bear arms is dependent on, or conditioned / qualified by, a citizen's attachment, association or membership in a structure (the Art I, §8 organized militia) that is itself, entirely dependent on the Constitution for its existence,
which means interpreting words upon which the right does not in any manner depend, into having conditioning, qualifying or restrictive effect on the right to arms is illegitimate and anti-constitutional.

More meaningless word soup.

You can't have it both ways. You're saying the Constitution is non-binding to the rights of citizens, including the 2nd Amendment.

Fine. Then Congress can pass laws that limit gun ownership, since the 2nd Amendment is meaningless by your own admission.

It sounds like you're saying that Congress can't pass any laws limiting any "pre-existing rights", whatever that means. Regardless, it's a preposterous opinion.

You quote all of this word soup, but you don't actually understand what it means.

It is those truths that the liberal dissenting Justices ignored / dismissed / violated, which is why their opinions are wrong (as are yours).

You claim that the liberals justices "ignored" your biased interpretation of the 2A. I guess so did Justice Scalia in the Heller decision. --

“Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

- JUSTICE ANTONIN SCALIA
DISTRICT OF COLUMBIA V. HELLER, 2008

He didn't say that, in fact the said the exact opposite.

Scalia said "the right secured by the Second Amendment is not unlimited. . . . the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose".

Are you purposefully lying or do you just not know what Heller said?

Thank you for repeating my quote...I guess it served some purpose for you. Whatever turns you on.

 

[RIP U.S. Democracy]

Stevens' hypocrisy is a larger discussion that is centered on his endorsement of the penumbral rights theory and his situational adherence (WRT the RKBA/2nA) to the foundational principles of the penumbral rights theory, as set-out in Justice Harlan's dissent in Poe v Ullman, which is the foundation for Griswold v Ct. which was the basis for Roe v Wade . . .

Stevens wasn't hypocritical. So everything you wrote after that is equally meaningless.

Stevens explained in the Heller decision that he agreed that the 2nd Amendment allows citizens to bear arms in defense of the country. Yes, that is what the 2A says. Nothing "hypocritical" about that.

Scalia not giving any part of the declaratory clause legal weight, is the originalist application; that was the only possible constitutionally legitimate determination that respects the framers' intent and SCOTUS precedent.

This right here is more crazy talk. NRA propaganda that you read somewhere and you are now regurgitating. This is NOT what "originalist" means with respect to the Constitution.

The Founding Fathers mentioned "militias" in the 2A for a reason and to suggest otherwise is nothing but desperate wishful thinking on your part.

 

[Willie Orwontee]

I explained to you EXACTLY why you are wrong. You are only looking at only one aspect of the Heller ruling. Yes, your interpretation is very simplistic, as I already explained.

The fact is, this is very simple.

The holding of the majority opinion was that the 2ndA recognizes and secures an original, retained, individual right and that right is possessed by the citizen without any militia conditioning. Full Stop . . .

That holding did not disturb, rework or overrule any SCOTUS precedent. The dissents agreed with the majority's individual right holding and agreed that SCOTUS precedent has never deviated from the individual right interpretation and the dissents said that, on that day in 2008, the "entire Court", 9-0, is in alignment with those individual right determinations.

The Heller majority did invalidate / overrule / abrogate many LOWER FEDERAL COURT decisions that began in 1942, decisions that ignored and dismissed SCOTUS in Miller, and inserted the "state's right" and "militia right" interpretations in the federal court system.

Those now defunct and moot "collective right" interpretations are what you try to hold on to, but, if you ever hope to claim to be in alignment with the Constitution and SCOTUS, it must be abandoned . . .

Stevens' dissent is an endorsement of the "conditioned individual right" which is the last gasp of the original "militia right" of Cases v US and US v Tot's "state's right", invented by the Circuit courts in 1942.

It was Tot's "state's right" that sustained hundreds of gun laws and extinguished the claims of dozens of citizens in the federal courts for 66 years, until Heller invalidated it.

US v Tot famously said the 2nd Amendment:

• ". . . unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power." -- U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942)

Both theories were dead when they were put to paper in 1942:

The Congress disbanded the Southern state's militias during Reconstruction, not one state claimed the 2nd Amendment to repel those "encroachments by the federal power".

The Congress completely extinguished state militia powers and absorbed the state militias into the federal army in the National Defense Act of 1903 and not one state ever claimed the 2nd Amendment to repel those "encroachments by the federal power".

The 2nd Amendment has never been examined by any court to inform in any manner, anything pertaining to militia interests or cited or held by any court, to protect any militia interests or activity for anyone (citizen or state).

Those "militia right" and "states right" interpretations are mirages, not speaking to any real powers (or rights) but was only employed as an alternative argument against enforcing the 2nd Amendment's individual right to keep and bear arms.

It worked for 66 years.

Stevens' "conditioned individual right" was just the last desperate effort (think Monty Python's Black Knight) to hold onto a theory to try to explain away the individual right. It has since been abandoned by the courts, they have moved to Breyer's position, arguing an "interest balancing" application to justify / sustain challenged gun laws.

Nobody but leftie statist anti-gun authoritarians like those in your article and of course, the know-nothing goofballs on message boards they hope will parrot their bullshit, argue any of the collective right theories anymore.

​

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[RIP U.S. Democracy]

The fact is, this is very simple.

The holding of the majority opinion was that the 2ndA recognizes and secures an original, retained, individual right and that right is possessed by the citizen without any militia conditioning. Full Stop . . .

So? I already know that. That's not the issue.

Nothing in the Heller ruling prevents Congress from passing new gun laws to ban certain types of guns. Even Scalia agrees with this, as I already pointed out.

That holding did not disturb, rework or overrule any SCOTUS precedent.

Well...there's not much to rework/overrule. The fact is that SCOTUS barely addressed the 2A during the first 200 years of this country's history. And not that often after that, either.

The dissents agreed with the majority's individual right holding and agreed that SCOTUS precedent has never deviated from the individual right interpretation and the dissents said that, on that day in 2008, the "entire Court", 9-0, is in alignment with those individual right determinations.

The Heller majority did invalidate / overrule / abrogate many LOWER FEDERAL COURT decisions that began in 1942, decisions that ignored and dismissed SCOTUS in Miller, and inserted the "state's right" and "militia right" interpretations in the federal court system.

Those now defunct and moot "collective right" interpretations are what you try to hold on to, but, if you ever hope to claim to be in alignment with the Constitution and SCOTUS, it must be abandoned . . .

I'm not "holding on" to anything. I'm explaining to you that Congress can still pass any gun law that it wants to. The Heller ruling didn't change ANY of that. Did I mention that Scalia agrees with me?

The Congress disbanded the Southern state's militias during Reconstruction, not one state claimed the 2nd Amendment to repel those "encroachments by the federal power".

Makes sense....there was no NRA propaganda machine back in the 1870s. But I appreciate you supporting my argument!

There weren't paid NRA lobbyists in 1875 trying to invent new individual gun rights out of thin air from the text of the 2nd Amendment, like they do today.

The Congress completely extinguished state militia powers and absorbed the state militias into the federal army in the National Defense Act of 1903 and not one state ever claimed the 2nd Amendment to repel those "encroachments by the federal power".

The 2nd Amendment has never been examined by any court to inform in any manner, anything pertaining to militia interests or cited or held by any court, to protect any militia interests or activity for anyone (citizen or state).

Yeah....which is why it's silly of you to boldly proclaim that Americans can own any gun they want. Wrong. Congress can regulate that.....as Scalia already told you.

Those "militia right" and "states right" interpretations are mirages, not speaking to any real powers (or rights) but was only employed as an alternative argument against enforcing the 2nd Amendment's individual right to keep and bear arms.

It worked for 66 years.

Stevens' "conditioned individual right" was just the last desperate effort (think Monty Python's Black Knight) to hold onto a theory to try to explain away the individual right. It has since been abandoned by the courts, they have moved to Breyer's position, arguing an "interest balancing" application to justify / sustain challenged gun laws.

Nobody but leftie statist anti-gun authoritarians like those in your article and of course, the know-nothing goofballs on message boards they hope will parrot their bullshit, argue any of the collective right theories anymore.

​

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Nothing "desperate" about it....since Scalia agrees with Stevens that Congress can still regulate guns as it sees fit.