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View Diary: What gun control does the Second Amendment allow? (226 comments)

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    •  Aaah... that explains why the quote (10+ / 0-)

      from Stevens showed up twice for me. It moved during my reading. :)

      Thanks for the post Adam. Well done as always.

      Is this Scalia talking about originalism?

      But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
      And if he is to be consistent then why can he earlier say
      We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”
      But if the court cannot change interpretation based on modern developments then the types of arms the 2nd allows is pretty much limited to muskets.

      That's silly of course and I don't agree with it but then I don't agree with originalism in general. It is important to understand original intent... as a starting point... for how to then apply the guideline to modern circumstances.

      "Do what you can with what you have where you are." - Teddy Roosevelt

      by Andrew C White on Tue Dec 18, 2012 at 10:42:23 AM PST

      [ Parent ]

      •  Everyone's playing on originalist turf. (12+ / 0-)

        That Scalia quote refers to the state of the militia in 1789 versus today, and he gets out of "muskets" with that "sorts of weapons" shift, just as in the same way the First Amendment protects the Internet as being the sort of speech they were thinking about back then.

        •  Clarification (5+ / 0-)
          Recommended by:
          SilentBrook, hazzcon, sfbob, fisheye, Debby

          everyone's playing on "originalist" turf.  Originalism as applied, and the notion of interpreting constitutional text based on the commonly understood meaning of the terms at the time of ratification, could not be more different in this case.  

          I like to apply the WJMAFM test, or "Was James Madison a Fucking Moron," to questions of originalism.  The Heller majority paradoxically believes that one should defer to his judgment at all times, and that he was a fucking moron.  Originalism is nice in theory, but it's a black box.  My version of the black box is the interpretation most consistent with historical practice and to resolve ambiguous questions in favor of James Madison not trying to fuck us from the grave with institutionalized lack of common sense.  

          Difficult, difficult, lemon difficult.

          by Loge on Tue Dec 18, 2012 at 11:03:55 AM PST

          [ Parent ]

          •  Read the Heller dissents (11+ / 0-)

            They, too, are based on the more liberal justices' different understanding as to what the Second Amendment was intended to protect.  All nine Justices pulled what they wanted from the box.

            •  Sure (1+ / 0-)
              Recommended by:
              mightymouse

              the idea that the Constitution exists to serve the needs of society as it evolves recognizes this and is comfortable with this.

              That said, with the caveats about how history at a high level isn't really an objective science, Breyer actually picks out relevant stuff instead of what Scalia does, throw a bunch of historical documents against the wall.  The majority simply didn't engage the question of whether people were speaking of the role guns played in society (freed slaves had to be able to shoot hogs) versus whether this was of Constitutional import.

              Difficult, difficult, lemon difficult.

              by Loge on Tue Dec 18, 2012 at 11:20:34 AM PST

              [ Parent ]

          •  The Constitution was written by slave owners (3+ / 0-)
            Recommended by:
            ExStr8, SoCalSal, CA wildwoman

            whose fastest way to the polling place was on horseback. It is long over due for update but that may not happen in my lifetime or ever. We desperately need election reform (preferential or IRV voting), campaign reform, and an emphasis on the role of a free press in facilitating (not entertaining or dis-informing) citizen's to participation in their democracy.

            We the people, with the Supreme Court as final arbiter, need to decide how to apply our constitution. The Second Amendment clearly indicates that gun rights should come with gun responsibilities. It is a national tragedy that we've let the NRA and right-wing justices ignore the first three words of the God damned amendment:

            A well regulated ....
            I supect that meant something along the lines of "trained" at the time. I personally would like to see military grade hardware only used by the military. The rest of us are entitled to as many muzzle loading rifles and pistols as we want as long as we show up on the village green once a month for muster and drill.

            I'm flexible on the muster and drill part. Substitute its modern day equivalent or require at least as much insurance and licensing as it does to operate a motor vehicle.

            Regarding the rest, I am serious. No civilized country experiences the steady pounding of gun massacres that we do in the U.S.

            Reaganomics noun pl: belief that unregulated capitalism can produce unlimited goods for unlimited people on a planet with finite resources and we the people can increase revenue by decreasing revenue.

            by FrY10cK on Tue Dec 18, 2012 at 01:37:51 PM PST

            [ Parent ]

            •  "Well-regulated" did NOT mean ... (0+ / 0-)

              "trained", it meant "in good working order"; i.e. able-bodied men with working weapons.

              "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

              by Neuroptimalian on Tue Dec 18, 2012 at 05:41:38 PM PST

              [ Parent ]

              •  "Well regulated" meant "not a mob" (3+ / 0-)
                Recommended by:
                akmk, jjohnjj, ChurchofBruce

                The founders were not idiots and were terribly fearful of anarchy.   On of Washington's first acts as President was in fact to disarm a non well-regulated milita in what became known as the Whiskey Rebellion.

                •  Agree. "Under command of lawful authority" (1+ / 0-)
                  Recommended by:
                  radarlady

                  has always been my take on it. Can't you hear General Washington saying, "Captain, if you cannot regulate your troops, I shall replace you with someone who can!"

                  I'm willing to expand the concept of "militia" to crime prevention, but if our citizen-vigilantes want to do anything more than "observe and report", I want them and their weapons to be damn well regulated.

                  Have you noticed?
                  Politicians who promise LESS government
                  only deliver BAD government.

                  by jjohnjj on Wed Dec 19, 2012 at 10:00:15 PM PST

                  [ Parent ]

        •  They did have pikes and swords, too. (0+ / 0-)

          Thump! Bang. Whack-boing. It's dub!

          by dadadata on Tue Dec 18, 2012 at 01:54:47 PM PST

          [ Parent ]

      •  exactly (4+ / 0-)
        Recommended by:
        sfbob, blackjackal, Odysseus, SoCalSal

        that's the problem with "original intent"

        things change.

        So do we go with the original intent, which is everyone gets a musket (bit of a paraphrase), or do we interpret it to mean the most commonly available/used weapon, which would most definitely not IMO be a strict original intent approach.

        The Founders could not conceive of weapons that fire 3 rounds in a single burst when they had weapons that a really good shot could fire 3 times in a minute.

        The Founders could not conceive that in the time it took a really good shot to fire off four rounds that might go a hundred yards with any accuracy at all, a bad shot today can spew off an entire clip of 30 rounds, re-load, fire off another clip of 30 rounds, and maybe re-load and fire a third time, with weapons that fire a lot farther and a lot more accurately.

        Just like the Founders couldn't conceive of a modern police force, or a 1 million strong standing professional army. (Well I suppose they could have conceived of it, but would have thought it ridiculous).

        •  At the same time, a wound that a person (1+ / 0-)
          Recommended by:
          Odysseus

          recovers from today, was frequently a fatal in the 1700s.

          The most important way to protect the environment is not to have more than one child.

          by nextstep on Tue Dec 18, 2012 at 12:23:00 PM PST

          [ Parent ]

        •  The founders did not imagine a pistol (2+ / 0-)
          Recommended by:
          Seneca Doane, akmk

          easily concealed and capable of firing more than one shot in 30 seconds.

          "Furthermore, if you think this would be the very very last cut ever if we let it happen, you are a very confused little rabbit." cai

          by JesseCW on Wed Dec 19, 2012 at 08:27:55 PM PST

          [ Parent ]

          •  It clearly was meant to protect state's rights (2+ / 0-)
            Recommended by:
            radarlady, IreGyre

            Now the court has ruled otherwise but in the historical context it was to protect the rights of states.   You have to look at what they were reacting to, and what they were reacting to was not individual gun control by the British.   They were reacting to one of the earliest acts in the revolution, where the British marched to seize arms and ammunition that the colonialists (not yet rebels) had stored at Concord and Lexington.

            It is almost impossible to imagine nowdays, but the clause was to limit the power of the federal government to push the states around.    The idea was that the federal government couldn't get too powerful if the states could raise a milita to oppose it.   Remember that a lot of the people involved were southern slaveowners who were suspicious of Yankees (Washington despised them, by the way.)

            The Civil War changed everything.

            The idea that the clause would give a woman or a black person the right to carry a gun would have been looked upon with disbelief.

            •  Not by many of the founders. African American (0+ / 0-)

              men served quite proudly in integrated militia units during the Civil War, and must to the consternation of many Southerners, continued to serve in integrated militia units for decades after.

              They would not have seen it as an issue of whether African Americans had a right to bear arms, but rather as an issue of whether or not States had the right to arm African Americans.

              And they would not have agreed.

              "Furthermore, if you think this would be the very very last cut ever if we let it happen, you are a very confused little rabbit." cai

              by JesseCW on Wed Dec 19, 2012 at 09:31:43 PM PST

              [ Parent ]

          •  Right. In 1789 muskets were hand made. (4+ / 0-)
            Recommended by:
            Panama Pete, radarlady, WineRev, IreGyre

            Eli Whitney did not invent interchangeable parts for military weapons until sometime after 1800.

            Each musket had its own ball mold, because a ball for one might not work properly in another hand made musket.

            And imagine that you piss me off and I go pull my musket off the wall.

            First, it was only accurate to a few tens of yards.  It didn't have rifling (to cause the ball to spin), and the ball was circular.  Sort of like pitching knuckle balls.

            Second, if you are dumb enough to stand and watch me pour in the powder, push in the wadding, load the ball, and then ram all that stuff down the musket barrel (which might take 10 to 30 seconds) rather than run away when I first go for the musket, YOU DESERVE to get shot.

            And can you see a guy walk into a bank and announce "This is a stick-up" while carrying a musket? He would probably get beaten to death with the musket if he fired it, because there is no way he would get to reload it.

            Just a wee bit different than handling an AR-15.

            In my opinion, we are all entitled to carry all the muskets we want under the 2nd Amendment.  When the bear or the wolf comes to the door, don't call 911, get your musket.

            "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry November 6, 2012 MA-4 I am voting for my friends Barry, Liz and Joe (Obama, Warren and Kennedy)

            by BornDuringWWII on Wed Dec 19, 2012 at 09:50:58 PM PST

            [ Parent ]

          •  Why not? (1+ / 0-)
            Recommended by:
            radarlady

            The idea of guns with multiple barrels has existed nearly as long as there have been guns.  Multiple barrel flintlock pistols are nearly as old as the flintlock.  Flintlock pepperbox pistols were decades old when the Constitution was being written.  The idea of a revolver dates to at least 1597 when the first known attempt was built.  The first practical revolver was patented by Elisha Collier in 1818, with over 10,000 made in the next five years.  That's over 200 years from the concept being imagined to its successful execution.  

            Given that the Founding Fathers were already acquainted with the Industrial Revolution and things like steam engines and machine tools, plus their education level and interests in science, technology, and the military I wouldn't want to underestimate them.  Collier's pistol certainly wouldn't have been past their imagination, and I doubt Colt's first revolver from 1836 would have been either.  

            •  ah you've got me (1+ / 0-)
              Recommended by:
              JesseCW

              they could fire TWO shots at once...

              inaccurately, and then requiring longer reload times by far, for much less difference than today.

              Revolver's and pistols from the early 1800s are so far from the semi-automatic weapons of today it's not even debateable.

            •  Flintlock pistols weren't great for concealed (0+ / 0-)

              carry.  Primer tended to rattle right out of the pan.

              "Furthermore, if you think this would be the very very last cut ever if we let it happen, you are a very confused little rabbit." cai

              by JesseCW on Thu Dec 20, 2012 at 09:32:41 AM PST

              [ Parent ]

      •  And swords. (1+ / 0-)
        Recommended by:
        radarlady

        Just try walking down the street somewhere with a large, two edged blade...

        "Be just and good." John Adams to Thomas Jefferson

        by ogre on Thu Dec 20, 2012 at 01:17:31 AM PST

        [ Parent ]

    •  He also talks in circles (4+ / 0-)
      Recommended by:
      SilentBrook, mightymouse, Agathena, ExStr8

      and makes a stronger argument for allowing personal ownership of tanks then for allowing government to limit what types can be owned all while saying the government does have the right to make such limitations...

      It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

      "Do what you can with what you have where you are." - Teddy Roosevelt

      by Andrew C White on Tue Dec 18, 2012 at 10:49:24 AM PST

      [ Parent ]

      •  That line of argument (5+ / 0-)

        translates to "I'm wrong and I know it," but whatever.  If we take seriously the notion of the 2A as a check on tyranny (nevermind that the Constitution explicitly authorizes the creation of standing armies), then, as you note, the right to something like a .22 falls out from underneath.  it's not in the category of checks on the government.  And then originalists are confronted with the fact that, sure, there was a common law right and practice of self-defense using guns, but the leap from that to a constitutionally-enshrined right comes from the interpreter's mind, not from the evidence itself.  So, we wind up with a sleight of hand - using the right of self-defense against one perceived threat (centralized authority) to justify a right against another (bands of Vikings).

        Difficult, difficult, lemon difficult.

        by Loge on Tue Dec 18, 2012 at 11:08:44 AM PST

        [ Parent ]

      •  Tanks are not "Arms" (4+ / 0-)
        Recommended by:
        ExStr8, VClib, fuzzyguy, Justanothernyer

        The 18th century definition of "arms" = "weapon carried by an infantryman".  

        •  Yeah, I'm pretty sure you're right (1+ / 0-)
          Recommended by:
          JesseCW

          that they didn't count tanks as arms in the 18th century.

          "Do what you can with what you have where you are." - Teddy Roosevelt

          by Andrew C White on Tue Dec 18, 2012 at 08:55:58 PM PST

          [ Parent ]

        •  So an M252 (0+ / 0-)

          should be OK then ? ? ?

          Fake Left, Drive Right . . . not my idea of a Democrat . . .

          by Deward Hastings on Wed Dec 19, 2012 at 08:33:40 PM PST

          [ Parent ]

          •  Nope (0+ / 0-)

            M252 requires a crew of three, and fires (effectively) artillery.

            •  "carried by an infantryman" (0+ / 0-)

              is what you said, and is how a M252 is deployed.  And the "18th century definition of "arms"" most certainly included artillery.

              Show me (in the 2nd amendment) where it doesn't . . . 'cause if you're going to suggest that the 2nd applies only to long guns available at the time it was written you're pretty much limiting all (protected) gun ownership to cap and ball . . .

              Fake Left, Drive Right . . . not my idea of a Democrat . . .

              by Deward Hastings on Thu Dec 20, 2012 at 10:56:26 AM PST

              [ Parent ]

        •  Cannon would be "arms" (0+ / 0-)
          10th Regiment Foot

          Sir:

          Having received intelligence, that a quantity of ammunition, provision, artillery, tents and small arms, have been collected at Concord, for the avowed purpose of raising and supporting a rebellion against his majesty, you will march with the corps of grenadiers and light infantry, put under your command, with the utmost expedition and secrecy to Concord, where you will seize arms, and all military stores whatever. But you will take care that the soldiers do not plunder the inhabitants, or hurt private property.

          Your most obedient humble servant

          Thomas Gage

    •  "In common use" (0+ / 0-)

      I can see an argument surrounding whether "in common use" refers to in common use by an opposing military, or by some schleb hunting deer for dinner. I don't think Scalia's opinion resolves that.

      What I can see is that Scalia's opinion refers to ordinary people bringing their own guns to training into an organized unit, opposed to an enemy trying to exert its will on our new-born nation, in an armed conflict against another nation (the Brits, most immediately at the time).

      the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.
      It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
      Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
      If interpreted this way, private ownership of machine guns, grenades, RPGs, should be restored.

      "Doing My Part to Piss Off the Religious Right" - A sign held by a 10-year old boy on 9-24-05

      by Timbuk3 on Wed Dec 19, 2012 at 08:42:09 PM PST

      [ Parent ]

      •  Plus, he is wrong (0+ / 0-)
        the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service,
        Erm, no.   State militia were military groups paid for and organized by the state, the "body of all citizens capable of military service."  If you could bear arms you would feel strong pressure to join i in times of crisist, but this was a time when people had to be present to tend their farms.    

        Heck, even by the civil war they were still dealing with the problem of militia enlistments expiring on the eve of major battles (this was a problem for Washington.)  

        •  (Man, I need to put my glasses on) (0+ / 0-)

          The militia is not everybody, it is only those people who have enlisted and they enlist for specific periods.

        •  Stare Decisis (0+ / 0-)

          A phrase made so famous during the confirmation hearings of the heinous Roberts and Alito appointments.

          I hate to break it to you, but your opinion means nothing.

          Scaliea's opionion, on the other hand, means "the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service" is law.

          And just to be on the record, I believe that several SCOTUS decisions have been wrongly decided.

          Corporations aren't people is a shining example.

          But, once they're rendered a decision, that's what you have to find a way around.

          Or ignore the constitution.

          Which I find abhorrent.

          Deal with the words. Don't argue with me. I'm nobody.

          "Doing My Part to Piss Off the Religious Right" - A sign held by a 10-year old boy on 9-24-05

          by Timbuk3 on Wed Dec 19, 2012 at 09:36:10 PM PST

          [ Parent ]

          •  How about getting a wrong opinion OVERTURNED? (2+ / 0-)
            Recommended by:
            cspivey, ChurchofBruce

            Dred Scott, for example.

            Plessy v. Ferguson, for example.

            What that takes is getting different Justices on the Court.

            Maybe Obama will get to appoint a few to replace s few conservatives.  Let's hope.

            "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry November 6, 2012 MA-4 I am voting for my friends Barry, Liz and Joe (Obama, Warren and Kennedy)

            by BornDuringWWII on Wed Dec 19, 2012 at 09:58:33 PM PST

            [ Parent ]

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