The High Court is making some pretty popular decisions these days

[MattZ]

Fair enough. It actually says the right to keep and bear arms shall not be infringed, not that the right actually exists. My bad.

 

For someone so attuned to the difference in language between a right existing and right not being infringed, I am surprised you missed the first clause of the 2nd Amendment.

[MattZ]

But it only has that clause as a sufficient reason for protecting the right to bear arms, not as a necessary condition for having that right.

 

Says who? Who's to say it's not there to guide the analysis under which the second clause should be read? Maybe an infringement can occur if it would not prevent the people from forming a well regulated Militia?

[cryptique]

But it only has that clause as a sufficient reason for protecting the right to bear arms, not as a necessary condition for having that right.

That's one way of looking at it.

 

It's that semantic ambiguity that's been driving people nuts all this time. I happen to interpret it the other way.

[MrRain422]

You can say that again!

 

It didn't look like it posted the first time. This forum is running all weird for me today. Oh well.

[MrRain422]

Really anyone who considers themselves a real originalist (though not necessarily strict constructionalist) would probably say that the 2nd Amendment is obsolete since it's original intent is no longer applicable. At the time that it was written, the general philosophy regarding armed forces was that there was no reason to have a standing military in peace time, as there was no need for one, so if a nation did have a standing army in peace time, it could only be for the purpose of using it against its own citizens. So the Second Amendment was written so that, since there would be no standing military, if the nation was suddently attacked, a military would be easy to assemble quickly as the citizens would already be armed. Nowadays a standing army is the norm (and due to changes in technology, probably should be), so the original need to have armed citizens is still no longer there. I'm not saying that the 2nd Amendment necessarily is obsolete -- indeed, the text still exists in the Constitution, so there is a lot of room for healthy debate regarding how far reaching it is -- but its original purpose is certainly obsolete and I think a lot of people overlook that point when considering its meaning.

[bleedorange]

Really anyone who considers themselves a real originalist (though not necessarily strict constructionalist) would probably say that the 2nd Amendment is obsolete since it's original intent is no longer applicable. At the time that it was written, the general philosophy regarding armed forces was that there was no reason to have a standing military in peace time, as there was no need for one, so if a nation did have a standing army in peace time, it could only be for the purpose of using it against its own citizens. So the Second Amendment was written so that, since there would be no standing military, if the nation was suddently attacked, a military would be easy to assemble quickly as the citizens would already be armed. Nowadays a standing army is the norm (and due to changes in technology, probably should be), so the original need to have armed citizens is still no longer there. I'm not saying that the 2nd Amendment necessarily is obsolete -- indeed, the text still exists in the Constitution, so there is a lot of room for healthy debate regarding how far reaching it is -- but its original purpose is certainly obsolete and I think a lot of people overlook that point when considering its meaning.

 

That's why you don't look at original intent, only at what the actual text means.

[bigshoulders]

Maybe this scene will be repeated throughout all major 'merican cities, and districts.

Praise the LORD and pass the ammunition.

 

Iraq, Kentucky Vie For World Shooting-Into-The-Air Supremacy

[MrRain422]

That's why you don't look at original intent, only at what the actual text means.

 

Right, but sometimes the text is ambiguous, and so we sometimes have to look at other things to try to derive meaning. One thing that Constitutional scholars sometimes look at when trying to derive this meaning is the original intent, although there is a wide range of views concerning just how that original intent should be considered, especially since different framers may have had different intents. I'm not saying that original intent should always be deferred to, I'm just saying that it's a useful tool when the actual text isn't totally clear.

[JUDE]

You don

[MattZ]

You don

[watch me fall]

You don

[MrRain422]

Absolutely. That's actually pretty much what I said.

[ikol]

That's one way of looking at it.

 

It's that semantic ambiguity that's been driving people nuts all this time. I happen to interpret it the other way.

 

Which is fine. I just don't see how Scalia's interpretation is spinning.

 

Right, but sometimes the text is ambiguous, and so we sometimes have to look at other things to try to derive meaning. One thing that Constitutional scholars sometimes look at when trying to derive this meaning is the original intent, although there is a wide range of views concerning just how that original intent should be considered, especially since different framers may have had different intents. I'm not saying that original intent should always be deferred to, I'm just saying that it's a useful tool when the actual text isn't totally clear.

 

If you look at it in the context of the time it was written, the main threat to the right to bear arms was a colonial government trying to suppress militias. The idea of taking away individuals' guns for safety reasons or to try (and fail) to prevent crime would probably have been viewed as crazy.

[MrRain422]

I think that the idea of arming the people with today's modern weaponry for the purpose of self-defense would have seemed equally crazy though. The whole issue is completely different than it is now, on both sides of the ideological divide. The framers wouldn't have thought about gun rights under our contemporary framework at all. Ono of the main reasons that the 2nd Amendment is so ambiguous and difficult to apply is that it was written to address a different issue than both ends of the spectrum attempt to apply it to today.

[uncool2pillow]

If you look at it in the context of the time it was written, the main threat to the right to bear arms was a colonial government trying to suppress militias. The idea of taking away individuals' guns for safety reasons or to try (and fail) to prevent crime would probably have been viewed as crazy.

No doubt the founders provided a context of the necessity of militias. What is the historical basis to say that owning guns to prevent crime would've been considered crazy by the founders?

[Analogman]

Supreme Court rules in favor of gun ownership rights

 

By MARK SHERMAN, Associated Press Writer 10 minutes ago

 

WASHINGTON - The Supreme Court ruled Thursday that Americans have a constitutional right to keep guns in their homes for self-defense, the justices' first major pronouncement on gun control in U.S. history.

 

The court's 5-4 ruling struck down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms restrictions intact.

 

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "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."

 

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

 

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted.

 

The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Scalia said. The court also struck down Washington's requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

 

Scalia noted that the handgun is Americans' preferred weapon of self-defense in part because "it can be pointed at a burglar with one hand while the other hand dials the police."

 

In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

 

He said such evidence "is nowhere to be found."

 

Justice Stephen Breyer wrote a separate dissent in which he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

 

Joining Scalia were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas. The other dissenters were Justices Ruth Bader Ginsburg and David Souter.

 

Gun rights supporters hailed the decision. "I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom," said Wayne LaPierre, executive vice president of the National Rifle Association.

 

The NRA will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday's outcome.

 

Sen. Dianne Feinstein, D-Calif., a leading gun control advocate in Congress, criticized the ruling. "I believe the people of this great country will be less safe because of it," she said.

 

The capital's gun law was among the nation's strictest.

 

Dick Anthony Heller, 66, an armed security guard, sued the District after it rejected his application to keep a handgun at his Capitol Hill home a short distance from the Supreme Court.

 

"I'm thrilled I am now able to defend myself and my household in my home," Heller said shortly after the opinion was announced.

 

The U.S. Court of Appeals for the District of Columbia ruled in Heller's favor and struck down Washington's handgun ban, saying the Constitution guarantees Americans the right to own guns and that a total prohibition on handguns is not compatible with that right.

 

The issue caused a split within the Bush administration. Vice President Dick Cheney supported the appeals court ruling, but others in the administration feared it could lead to the undoing of other gun regulations, including a federal law restricting sales of machine guns. Other laws keep felons from buying guns and provide for an instant background check.

 

White House reaction was restrained. "We're pleased that the Supreme Court affirmed that the Second Amendment protects the right of Americans to keep and bear arms," White House spokesman Tony Fratto said.

 

Scalia said nothing in Thursday's ruling should "cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

 

In a concluding paragraph to the his 64-page opinion, Scalia said the justices in the majority "are aware of the problem of handgun violence in this country" and believe the Constitution "leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns."

 

The law adopted by Washington's city council in 1976 bars residents from owning handguns unless they had one before the law took effect. Shotguns and rifles may be kept in homes, if they are registered, kept unloaded and either disassembled or equipped with trigger locks.

 

Opponents of the law have said it prevents residents from defending themselves. The Washington government says no one would be prosecuted for a gun law violation in cases of self-defense.

 

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

 

Forty-four state constitutions contain some form of gun rights, which are not affected by the court's consideration of Washington's restrictions.

 

The case is District of Columbia v. Heller, 07-290.

[MattZ]

But it only has that clause as a sufficient reason for protecting the right to bear arms, not as a necessary condition for having that right.

 

 

Which is fine. I just don't see how Scalia's interpretation is spinning.

 

It is spin because Scalia presents his case, and writes his opinions, in such a way as to suggest that there can be no difference of opinion. As if the cookie only has one side (see also, your response above).

 

When Scalia suggests that this country will live to "regret this day" (see the recent Guantanamo decisions) because of the activist liberals legislating from the bench he is baiting and spinning and arrogantly suggesting that there is only one way to read the constitution and he has a moral leg up on everyone because it's "irrefutable" that other state amendments/legislation regarding gun control passed in and around the time of the ratification of the constitution are relevant to this 2nd Amendment case. Just as compelling a case can be made that the liberals' use of death penalty statutes from other states and countries are relevant. And yet he laughs at the liberals for using those those sources.

 

EDIT: I realize that I am generalizing here -- I dont expect for Scalia to suggest that there are other sides to the issues. He has his opinion and he can write it. But it becomes spin when he baits other justices and suggests that everyone but him is a moral hypocrite. He doesn't even bait other justices. He excoriates them.

[bleedorange]

It is spin because Scalia presents his case, and writes his opinions, in such a way as to suggest that there can be no difference of opinion. As if the cookie only has one side (see also, your response above).

 

When Scalia suggests that this country will live to "regret this day" (see the recent Guantanamo decisions) because of the activist liberals legislating from the bench he is baiting and spinning and arrogantly suggesting that there is only one way to read the constitution and he has a moral leg up on everyone because it's "irrefutable" that other state amendments/legislation regarding gun control passed in and around the time of the ratification of the constitution are relevant to this 2nd Amendment case. Just as compelling a case can be made that the liberals' use of death penalty statutes from other states and countries are relevant. And yet he laughs at the liberals for using those those sources.

 

EDIT: I realize that I am generalizing here -- I dont expect for Scalia to suggest that there are other sides to the issues. He has his opinion and he can write it. But it becomes spin when he baits other justices and suggests that everyone but him is a moral hypocrite. He doesn't even bait other justices. He excoriates them.

 

When determining the original meaning of the text of the Amendment, looking at similar statutes and constitutions written at the same time is an important tool.

 

Also, Kennedy largely disregarded other states that had made child rape a capital offense and declared them irrelevant. And Alito questioned him on it in the dissent. Scalia wrote neither opinion, so I'm not sure what you mean with respect to the death penalty case.

[MattZ]

When determining the original meaning of the text of the Amendment, looking at similar statutes and constitutions written at the same time is an important tool.

 

Why?

 

Also, Kennedy largely disregarded other states that had made child rape a capital offense and declared them irrelevant. And Alito questioned him on it in the dissent. Scalia wrote neither opinion, so I'm not sure what you mean with respect to the death penalty case.

 

Sure, Kennedy largely disregarded other states that had made child rape a capital offense, but he cited to evolving standards of decency with regard to capital punishment. And he did cite to evolving state (and other country) practices. Alito dismissed that as irrelevant.

 

Scalia may not have written Alito's opinion, but he signed onto it. If Scalia disagreed, he would have written his own dissent. So, I will take it as a given that Scalia agrees with what Alito wrote.

[ikol]

No doubt the founders provided a context of the necessity of militias. What is the historical basis to say that owning guns to prevent crime would've been considered crazy by the founders?

 

I don't think they would've considered owning guns to prevent crime to be crazy.

 

 

It is spin because Scalia presents his case, and writes his opinions, in such a way as to suggest that there can be no difference of opinion. As if the cookie only has one side (see also, your response above).

 

When Scalia suggests that this country will live to "regret this day" (see the recent Guantanamo decisions) because of the activist liberals legislating from the bench he is baiting and spinning and arrogantly suggesting that there is only one way to read the constitution and he has a moral leg up on everyone because it's "irrefutable" that other state amendments/legislation regarding gun control passed in and around the time of the ratification of the constitution are relevant to this 2nd Amendment case. Just as compelling a case can be made that the liberals' use of death penalty statutes from other states and countries are relevant. And yet he laughs at the liberals for using those those sources.

 

EDIT: I realize that I am generalizing here -- I dont expect for Scalia to suggest that there are other sides to the issues. He has his opinion and he can write it. But it becomes spin when he baits other justices and suggests that everyone but him is a moral hypocrite. He doesn't even bait other justices. He excoriates them.

 

But the more liberal justices don't think their interpretation is the right one?

[bjorn_skurj]

I am actually a fan of the Second Amendment. There is no practical way to take away everybody's guns, and restricting them only hurts the people who want to follow the rules.

[MattZ]

Fair enough. It actually says the right to keep and bear arms shall not be infringed, not that the right actually exists. My bad.

 

But it only has that clause as a sufficient reason for protecting the right to bear arms, not as a necessary condition for having that right.

 

But the more liberal justices don't think their interpretation is the right one?

 

Let me put it this way. There is no text in the preamble to the constitution that says it should be interpreted by reference to what the framers intended in the late 1700s. And there are no further instructions that, if the intent of the framers cannot be determined, then justices should reference other laws passed in the 1700s because, well, why not.

 

At the end of the day, everyone is putting their spin on the constitution. Liberals and conservatives. There is no right or wrong way to interpret the doc. It is either a living and breathing document, or it isn't. There is no user's manual.

 

I can admit that both sides are spinning. You are the one sarcastically suggesting (in this thread and quoted (in part) above) that Scalia is not spinning the 2nd Amendment because that provision guarantees a right to arms for citizens. You state it as an absolute, and I called BS on that, and I have given you reasons why. To claim as such is to put the same type of spin on the document that liberals do when they try to have the document live and breathe in today's world. You are spinning just like Scalia is spinning and just like the liberals are spinning.

[John Smith]

First off I need to say that I know and maybe we all know someone who ownns guns who we wish did not own them. In my case it is a close relative who has been borderline mentally ill for 40 years or more and he has 80 or so weapons.

 

EDIT: I realize that I am generalizing here -- I dont expect for Scalia to suggest that there are other sides to the issues. He has his opinion and he can write it. But it becomes spin when he baits other justices and suggests that everyone but him is a moral hypocrite. He doesn't even bait other justices. He excoriates them.

 

I work with law all the time (tax law) and we approach nearly every issue in terms of buildign our argument and trying to build and anticipate the governments arguments and our responses to them. Any study of law has to involve looking at both sides of an issue. He damned well better adress both sides of the issue in his arguments. The case is some 150 or so pages long so I have not read it yet. But I am sure there is much more to it than the simple quotes we have seen in the paper. That being said you hit Scalia right on the nose with your last few sentences. Once again I believe that is whhy he and dirty dick get along so well.

[MattZ]

I guess that'll be the end of Chicago's handgun ban, too.

 

I just read:

 

The Illinois State Rifle Association has already filed a lawsuit challenging the Chicago ban. They filed the suit within 15 minutes of the high court's ruling.

[John Smith]

I just read:

 

The Illinois State Rifle Association has already filed a lawsuit challenging the Chicago ban. They filed the suit within 15 minutes of the high court's ruling.

 

What do you think the odds are that they had an advance copy of the ruling to use in preparing their suit. It's not unheard of as we have gotten advance rulings ahead of our opponants some times and sometimes they have the advance rulign and use them to prepare arguments in cases similar to ours.