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Newsom proposes constitutional amendment to restrict access to guns

Willie Orwontee said:
You just did my work for me in post 268. Thanks for saving me the trouble.

I note you omitted the actual legally significant part of that paragraph, footnote 26 . . .
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No I didn't omit it, just as I didn't omit the entire decision.

Heller allows for restricting gun use and therefore restricting guns.

Glad you agree.
 
mrjurrs said:
Massive oversimplification of Heller.

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
https://www.law.cornell.edu/supct/html/07-290.ZS.html
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You should have read the entire quote, not just the first line.

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

While this famous phrase does appear in Heller, it's become a fad to take it wildly out of context and distort "not unlimited" to mean "We can impose any limit we want.". That's not what SCOTUS said.

Let's take a look at what the Court DID say, starting at the sentence before the famous phrase. All text in italics is from Heller, starting on the line before where you started to quote:

United States v. Miller ... does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

Here the court clearly states that the right applies to weapons in common use for lawful purposes. In the very next line they then state the famous phrase:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:

It then goes on to list examples of the aforementioned limits. Note that EVERY SINGLE ONE of them is an EXISTING law that the court sees as being beyond the scope of Heller.

For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Nothing about banning anything. Then to make sure that it's crystal clear what weapons the Second DOES protect, they repeat:

Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

So weapons in common use for lawful purposes are protected by the Second Amendment. Weapons that are dangerous and unusual may be banned, but while any firearm can be dangerous to some degree, AR15s are certainly NOT unusual.
AR15s are in common use for lawful purposes and they are certainly suitable for militia use, so they are protected by the Second Amendment and laws banning them are unconstitutional.

In order to use the famous phrase the way you want to, you have to ignore a LOT of other material.
Like the sentence just before your favorite line, where SCOTUS clearly states that the right applies to weapons in common use for lawful purposes. You'd have to ignore the four examples of EXISTING laws SCOTUS uses to illustrate what the quoted line is referring to. Note that there is no support whatsoever in SCOTUS' examples for banning anything. Then, in the same paragraph, you'd have to ignore SCOTUS repeating that the weapons protected are those "in common use".

That's a lot of ignoring. There is nothing in the famous phrase that offers either the courts or Congress a blank check to impose further limits.
 
mrjurrs said:
Massive oversimplification of Heller.

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
https://www.law.cornell.edu/supct/html/07-290.ZS.html
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What do you think Heller allows?
 
mrjurrs said:
No I didn't omit it, just as I didn't omit the entire decision.

Heller allows for restricting gun use and therefore restricting guns.

Glad you agree.
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Possession <> use.
 
mrjurrs said:
No I didn't omit it, just as I didn't omit the entire decision.

Heller allows for restricting gun use and therefore restricting guns.

Glad you agree.
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Your biggest failure here isn't your misinterpretation of Heller, it's your ignorance of Bruen.
 
rahl said:
no, I showed you that
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Nope, you cited NO policy that covers what you claim that all home owner's insurance does
You merely made an absolutely unsupported claim

Now prove your claim, or withdraw it as another one of your lies.
 
mrjurrs said:
Massive oversimplification of Heller.

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
https://www.law.cornell.edu/supct/html/07-290.ZS.html
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Not the part I was talking about . . .

Your point was that, "If you can do anything one weapon does with a different weapon, how is you not being able to get a particular weapon infringing on your rights?

As I said, yours is a question dismissed in Heller, (internal case citations removed):


"It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."​


Of course, there are valid reasons why a semi-auto rifle with a standard magazine is preferred for self defense over a handgun, so the reasoning works both ways, a ban on "assault weapons" is invalid on its face, especially if part of the reasoning supporting the "assault weapon" ban is that handguns are available.

.
 
mrjurrs said:
No I didn't omit it, just as I didn't omit the entire decision.

Heller allows for restricting gun use and therefore restricting guns.

Glad you agree.
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Things have changed since that paragraph was written, mainly McDonald and NYSRPA v Bruen.

In that paragraph Scalia is stating various situations in the status of both federal and state laws in June, 2008, it isn't a broad statement of constitutionality then or into perpetuity.

Again, the "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" statement is speaking to the longstanding legal standard of recognizing a government power to restrict "dangerous and unusual" weapons. (That standard is an interesting one to examine; it sure doesn't mean what gun control advocates say about it).

The "concealed weapons prohibitions have been upheld under the Amendment or state analogues" statement is speaking to the particular circumstance before incorporation. In 2008 the 2ndA was not enforceable on any state legislation thus it could not be recognized as impeding restrictions on concealed carry (which were all state enactments). That of course has arguably been negated (as a general statement of law) by SCOTUS in McDonald and NYSRPA.

The remainder, the "The Court's opinion should not be taken to cast doubt on longstanding prohibitions . . . " is given far too much weight in these layman's discussions by gun control advocates. I always find it interesting that the most important legally significant part of that statement is always left out . . . Footnote #26.

Footnote 26 has been employed to directly "cast doubt" and challenge some of those "longstanding prohibitions". One thing is for sure, whenever gun control advocates cite and quote that paragraph, it is an overreading and misconstruction of what was said by the Court.

That paragraph is not any proof that the Court has made definitive conclusions as to the constitutionality of those various laws, it simply means that the Court in Heller did not examine those laws.

What the SCOTUS said, (and lower courts have acknowledged), is that those laws are only "presumptively lawful" and that presumption may be rebutted.
 
jpevans said:
No, a knew Amendment must be proposed & ratified by 2/3rds of the states, like they did to end prohibition. . . .
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The Right to keep and consume alcohol was not mentioned in the Bill of Rights, so the repeal of Amendment XVIII (Prohibition) was a fairly simple matter.

The Right to keep and bear Arms IS mentioned. In fact, it explicitly states that the Right "shall not be infringed".

Newsom's (proposed) 28th Amendment is chock full of infringements, so therefore it cannot lawfully be ratified. In order to get the "common sense" infringements Newsom wants, the 2nd Amendment must first be repealed, and replaced with another.

The 2nd Amendment and the (proposed) 28th Amendment cannot exist simultaneously.
 
natman said:
You should have read the entire quote, not just the first line.

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

While this famous phrase does appear in Heller, it's become a fad to take it wildly out of context and distort "not unlimited" to mean "We can impose any limit we want.". That's not what SCOTUS said.

Let's take a look at what the Court DID say, starting at the sentence before the famous phrase. All text in italics is from Heller, starting on the line before where you started to quote:

United States v. Miller ... does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

Here the court clearly states that the right applies to weapons in common use for lawful purposes. In the very next line they then state the famous phrase:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:

It then goes on to list examples of the aforementioned limits. Note that EVERY SINGLE ONE of them is an EXISTING law that the court sees as being beyond the scope of Heller.

For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Nothing about banning anything. Then to make sure that it's crystal clear what weapons the Second DOES protect, they repeat:

Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

So weapons in common use for lawful purposes are protected by the Second Amendment. Weapons that are dangerous and unusual may be banned, but while any firearm can be dangerous to some degree, AR15s are certainly NOT unusual.
AR15s are in common use for lawful purposes and they are certainly suitable for militia use, so they are protected by the Second Amendment and laws banning them are unconstitutional.

In order to use the famous phrase the way you want to, you have to ignore a LOT of other material.
Like the sentence just before your favorite line, where SCOTUS clearly states that the right applies to weapons in common use for lawful purposes. You'd have to ignore the four examples of EXISTING laws SCOTUS uses to illustrate what the quoted line is referring to. Note that there is no support whatsoever in SCOTUS' examples for banning anything. Then, in the same paragraph, you'd have to ignore SCOTUS repeating that the weapons protected are those "in common use".

That's a lot of ignoring. There is nothing in the famous phrase that offers either the courts or Congress a blank check to impose further limits.
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And none of the other verbiage restricts Congress from regulating any firearm.
 
mrjurrs said:
And none of the other verbiage restricts Congress from regulating any firearm.
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Any regulation for any firearm?

Have you actually read Bruen and noted the impact on current cases restricting the RKBA?
 
SkyChief said:
The Right to keep and consume alcohol was not mentioned in the Bill of Rights, so the repeal of Amendment XVIII (Prohibition) was a fairly simple matter.

The Right to keep and bear Arms IS mentioned. In fact, it explicitly states that the Right "shall not be infringed".

Newsom's (proposed) 28th Amendment is chock full of infringements, so therefore it cannot lawfully be ratified. In order to get the "common sense" infringements Newsom wants, the 2nd Amendment must first be repealed, and replaced with another.

The 2nd Amendment and the (proposed) 28th Amendment cannot exist simultaneously.
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The Bill of rights is the 1st ten Amendments to the Constitution. That is all. ;) It's not the countries Ten Commandments & BTW who keeps the Ten Commandment, religiously?
 
mrjurrs said:
And none of the other verbiage restricts Congress from regulating any firearm.
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You really have zero comprehension of foundational constitutional principles.

The right to arms is not a product of the 2ndA; the right is not granted or created by what the 2ndA says; the right exists because of what the body of the Constitution DOESN'T SAY!

The right exists because "We the People" never conferred / granted any power to the federal government allowing the government to have any interest in the personal arms of the private citizen. The definition of a "right" is an exception of powers never granted . . .

You keep looking for express permissions for the citizen; what you miss entirely is it is the government that needs specific, express permission to act.

The power exercised by Congress to regulate arms is claimed to flow from the power to tax (NFA-34) and the nebulous, ever shape-shifting power granted to Congress to regulate commerce between the states, predicated on the danger felons present to society (Gun Control Act of 1968 and all subsequent expansion of that law).

That commerce clause claim is suspect and when challenged, we will see many laws written under that claim negated.

.
 
Willie Orwontee said:
Things have changed since that paragraph was written, mainly McDonald and NYSRPA v Bruen.

In that paragraph Scalia is stating various situations in the status of both federal and state laws in June, 2008, it isn't a broad statement of constitutionality then or into perpetuity.

Again, the "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" statement is speaking to the longstanding legal standard of recognizing a government power to restrict "dangerous and unusual" weapons. (That standard is an interesting one to examine; it sure doesn't mean what gun control advocates say about it).

The "concealed weapons prohibitions have been upheld under the Amendment or state analogues" statement is speaking to the particular circumstance before incorporation. In 2008 the 2ndA was not enforceable on any state legislation thus it could not be recognized as impeding restrictions on concealed carry (which were all state enactments). That of course has arguably been negated (as a general statement of law) by SCOTUS in McDonald and NYSRPA.

The remainder, the "The Court's opinion should not be taken to cast doubt on longstanding prohibitions . . . " is given far too much weight in these layman's discussions by gun control advocates. I always find it interesting that the most important legally significant part of that statement is always left out . . . Footnote #26.

Footnote 26 has been employed to directly "cast doubt" and challenge some of those "longstanding prohibitions". One thing is for sure, whenever gun control advocates cite and quote that paragraph, it is an overreading and misconstruction of what was said by the Court.

That paragraph is not any proof that the Court has made definitive conclusions as to the constitutionality of those various laws, it simply means that the Court in Heller did not examine those laws.

What the SCOTUS said, (and lower courts have acknowledged), is that those laws are only "presumptively lawful" and that presumption may be rebutted.
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Or...
"That paragraph is not any proof that the Court has made definitive conclusions as to the constitutionality of those various laws, it simply means that the Court in Heller did not examine those laws."
...it means that those laws are not presumed to be unconstitutional"
 
mrjurrs said:
Or...
"That paragraph is not any proof that the Court has made definitive conclusions as to the constitutionality of those various laws, it simply means that the Court in Heller did not examine those laws."
...it means that those laws are not presumed to be unconstitutional"
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Go read Bruen.
 
Willie Orwontee said:
You really have zero comprehension of foundational constitutional principles.

The right to arms is not a product of the 2ndA; the right is not granted or created by what the 2ndA says; the right exists because of what the body of the Constitution DOESN'T SAY!

The right exists because "We the People" never conferred / granted any power to the federal government allowing the government to have any interest in the personal arms of the private citizen. The definition of a "right" is an exception of powers never granted . . .

You keep looking for express permissions for the citizen; what you miss entirely is it is the government that needs specific, express permission to act.

The power exercised by Congress to regulate arms is claimed to flow from the power to tax (NFA-34) and the nebulous, ever shape-shifting power granted to Congress to regulate commerce between the states, predicated on the danger felons present to society (Gun Control Act of 1968 and all subsequent expansion of that law).

That commerce clause claim is suspect and when challenged, we will see many laws written under that claim negated.

.
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Just like the right to privacy?
The power to regulate arms can also be attributed to the Necessary and Proper Clause.
 
jpevans said:
The Bill of rights is the 1st ten Amendments to the Constitution. That is all. ;) It's not the countries Ten Commandments & BTW who keeps the Ten Commandment, religiously?
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Straw Man noted. . . And appreciated. ;)
 
mrjurrs said:
Or...
"That paragraph is not any proof that the Court has made definitive conclusions as to the constitutionality of those various laws, it simply means that the Court in Heller did not examine those laws."
...it means that those laws are not presumed to be unconstitutional"
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You anti-gunners sure love that paragraph but the footnote is always omitted and like I said, the footnote is the legally significant part of the paragraph. In the immediate aftermath of Heller, the government tried to use that paragraph just like you anti-gunners still try to do, to argue that the constitutionality of those exemplary "longstanding prohibitions" is beyond question.

"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. . . ."​
​
US v. Skoien, No. 08-3770, (7th Cir. 2009)​

In fact, the footnote, which reads, "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive" has been used to bring those "longstanding prohibitions" into question:

"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted."​
​
U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011)​

So, it is WAAAAAAAAAY past time to stop presenting this Heller quote as any kind of endorsement of gun control or any statement of some constitutionally unquestionable status of gun control -- the reality was not good for you then and is especially bad now, after McDonald and especially after NYSRPA v Bruen.

.
 
Willie Orwontee said:
You anti-gunners sure love that paragraph but the footnote is always omitted and like I said, the footnote is the legally significant part of the paragraph. In the immediate aftermath of Heller, the government tried to use that paragraph just like you anti-gunners still try to do, to argue that the constitutionality of those exemplary "longstanding prohibitions" is beyond question.

"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. . . ."​
​
US v. Skoien, No. 08-3770, (7th Cir. 2009)​

In fact, the footnote, which reads, "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive" has been used to bring those "longstanding prohibitions" into question:

"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted."​
​
U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011)​

So, it is WAAAAAAAAAY past time to stop presenting this Heller quote as any kind of endorsement of gun control or any statement of some constitutionally unquestionable status of gun control -- the reality was not good for you then and is especially bad now, after McDonald and especially after NYSRPA v Bruen.

.
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It doesn't have to be an endorsement. It just reiterates that there is a place for the state to regulate firearms.
 
mrjurrs said:
Or...
"That paragraph is not any proof that the Court has made definitive conclusions as to the constitutionality of those various laws, it simply means that the Court in Heller did not examine those laws."
...it means that those laws are not presumed to be unconstitutional"
Click to expand...

The Court was saying that none of the laws enacted in the 20th Century has been examined under the unequivocal individual right doctrine. The Court knew two things on June 26th, 2008;

1), that a challenge would be filed the next day in the 7th Circuit by Alan Gura (who just won DC v Heller) to invalidate the Chicago handgun ban,
2), Heller invalidating / overruling dozens of "collective right" lower court decisions (that worked to sustain thousands of federal, state and local gun control laws) meant that every single one of those laws was now infirm because the legal reasoning for upholding those laws was knocked away.
 
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