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The Supreme Court of the United States
Everyone is wondering, and the truth is, we don't know. We are in the embryonic stages of constitutional analysis, since it's only been four and a half years since the Supreme Court held that the Second Amendment protected an individual right to keep and bear arms. In the time since then, the Court has only spoken to the Second Amendment once more, and that case did not allow for further elaboration of what the Second Amendment right is. As you'll see, there is a lot of constitutional ground in which gun control advocates can clearly legislate with the blessing of even the most conservative of justices.

So what did the Court say in its first elaboration on the clause since the 1939 Miller decision? Justice Scalia penned the majority opinion in Heller, and its key conclusions are as follows. First, that the Second Amendment was historically understood to include the right to bear arms for immediate self-defense in the home, and that right includes handguns:

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....
However, even Justice Scalia and the four conservative Justices who signed onto his opinion recognized that said right was not absolute. Join me below the orange gnocchi:

First, the Court recognized that this right did not include all weapons:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues....

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.”  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of 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. 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.

Secondly and importantly, the Court recognized that many longstanding restrictions on gun ownership and brandishing remained constitutional:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.
And added in a footnote: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

The Court concluded:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. 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.
And that's where we are right now. The Court doesn't speak unless there is an active case or controversy before it—some statute or regulation whose constitutionality has been challenged—and it does not issue advisory opinions as to what might be constitutional. Those cases are bubbling up through the courts. Just last week, the United States Court of Appeals for the Seventh Circuit released its opinion in Moore v. Madigan, which concerned Illinois' unique restrictions on carrying a ready-to-use handgun outside the home. In that 2-1 decision, Judge Richard Posner expanded the Heller right to include self-defense outside the home as well, relying on the "keep and bear" language of the Second Amendment:
The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.
[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. ... To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense.

A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically

But even Judge Posner recognizes that different restrictions require different constitutional tests:
A blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would. In contrast, when a state bans guns merely in particular places, such as public schools, a person can preserve  an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need. Similarly, the state can prevail with less evidence when guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public...

Apart from the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not questioned in Heller, some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms. A person who carries a gun in public but is not well trained in the use of firearms is a menace to himself and others.

It's time to explore more options, and there are many wise policies which would be perfectly constitutional to enact. Just last month, the Congressional Research Service published a guide to the state of play of current federal legislation and bills recently proposed. It's worth a read. Former Justice John Paul Stevens, now retired, addressed the Brady Campaign in a speech this October. In that speech he noted:
While the post-decision commentary by historians and other scholars has reinforced my conviction that the Court's decision to expand the coverage of the Second Amendment was incorrect, [] good things about the Court's opinion merit special comment.... [T]he Court did not overrule Miller. Instead, it "read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." On the preceding page of its opinion, the Court had made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because the protected class of weapons was limited to those in common use for lawful purposes like self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the "common use" requirement. Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court's decision in Heller.

Originally posted to Adam B on Tue Dec 18, 2012 at 10:16 AM PST.

Also republished by Shut Down the NRA, Repeal or Amend the Second Amendment (RASA), Firearms Law and Policy, and Daily Kos.

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Comment Preferences

  •  Tip Jar (165+ / 0-)
    Recommended by:
    Dobber, VClib, sneakers563, Darmok, Armando, Andrew C White, Empty Vessel, bubbanomics, MKinTN, hayden, coffeetalk, surfbird007, kestrel9000, JR, Its the Supreme Court Stupid, high uintas, blue aardvark, shayera, luckydog, Loge, oldliberal, occams hatchet, VetGrl, justalittlebitcrazy, glorificus, happy camper, SneakySnu, wayoutinthestix, pico, wilderness voice, BCO gal, LNK, TokenLiberal, loretta, mconvente, UncleCharlie, pamelabrown, Matt Z, Otteray Scribe, hazzcon, FogCityJohn, Aspe4, MBNYC, Actbriniel, avsp, peteri2, Wee Mama, DefendOurConstitution, smartdemmg, 43north, thestructureguy, Publius2008, BlueStateRedhead, nextstep, Phil S 33, Miggles, anodnhajo, roses, sfbob, GeorgeXVIII, sceptical observer, blueyescryinintherain, ElaineinIN, Deadicated Marxist, Glen The Plumber, psnyder, john07801, BachFan, Mr MadAsHell, tofumagoo, Mindful Nature, concernedamerican, Siri, Fe, Jbearlaw, blueyedace2, here4tehbeer, ColoTim, oldpunk, Lefty Coaster, sebastianguy99, blackjackal, tapestry, Chaddiwicker, OtherDoug, Involuntary Exile, cany, Brian82, Alice Venturi, Odysseus, statsone, ExStr8, lineatus, Voter123, Little Flower, Silverleaf, SoCalSal, La Gitane, eeff, CTLiberal, Smoh, Catte Nappe, OMwordTHRUdaFOG, OLinda, radical simplicity, Debby, mayim, gerrilea, Larsstephens, Oh Mary Oh, Brit, guyeda, LilithGardener, CA wildwoman, mahakali overdrive, MPociask, HappyinNM, kerflooey, cacamp, begone, deeproots, SpamNunn, JesseCW, bear83, devtob, dewley notid, Seneca Doane, bloomer 101, sofia, akmk, dougymi, trivium, jck, countwebb, Tailspinterry, Thinking Fella, Flint, gizmo59, unclebucky, wasatch, dRefractor, Boris49, alisonk, retLT, Nautical Knots, radarlady, eztempo, rbird, MadRuth, elziax, Showman, Justin93, OregonOak, semiot, randallt, ord avg guy, Nova Land, science nerd, mslat27, Mac in Maine, tonyahky, Turbonerd, greycat, exNYinTX, Manish Ghosh
    •  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 ]

  •  I'll chip in some words (22+ / 0-)

    and terms that may well be brought to bear on "keep and bear arms" issues.

    "KEEP" Arms. "BEAR" arms.

    I concede these words, a literal reading of the Amendment, one that Scalia and the rest of the offscoured scum of the Supreme Court insist upon. I AGREE with those mofo's!

    I also note the Amendment is silent on other words:
    "Sell" Arms.
    "Buy" Arms.
    "Trade" Arms.

    (And I recall vividly the main body of the Constitution gives Congress the right to regulate commerce, i.e. buying and selling of goods and services.)

    "Buy" Ammunition.
    "Sell" Ammunition.
    "Trade" Ammunition.

    (The original intent of the the Founders (pay attention here, Scalia et. other scum) of course dealt with home-made ammunition. I readily CONCEDE the right of all citizens to make their own lead ball ammunition, just as the Founding Fathers intended and envisioned. And if you REALLY want to get "originalist" in interpreting the Constitution, I grant without limit the right of Americans to bear single-shot, flintlock arms, using black powder and homemade, lead ball ammunition. Otherwise, see "Commerce Clause" above.)

    "Register" Arms.
    "Tax" Arms.

    (These are all functions of "well-regulating" a militia. It would be a logistical nightmare for the government to have to provide 87 different kinds of ammunition to a company of 100 in the militia and would make the force useless for defending the "security of the State." (.45 caliber bullets are a lousy fit in a .22 caliber barrels.) Regulating by requiring uniform weapons for use in the militia and using the governmental taxing power to discourage the use of non-standard weapons, the militia can be much more effective because they can all use their weapons and be readily supplied by the state. (Homemade, lead ball ammunition being the obvious exception of course.)

    "License" arms.

    (The NRA opposes this, along with demonstrating gun skills in order to obtain a license, on grounds of "the slippery slope." "It's just the first step for the government to find out who owns guns as they get ready to come an take them away from you...."
         I note millions of Americans carry a driver's license, which they obtained after demonstrating driving skills in order to obtain it. In over 100 years of licensing drivers I look through American history for instances when the government used lists of licensed drivers as the first step toward seizing your car. The "slippery slope" of car licensing, to my knowledge, has not led to wholesale, or even retail, government confiscations of private vehicles. (Vehicles used in a crime are of course another matter. And even there, the government has not defined vehicles as illegal and subject to seizure, only as physical evidence involved in a crime.)

    Just a few thoughts on how and where some terms might fit in a "national conversation about guns" might fit.

    Shalom.

    "God has given wine to gladden the hearts of people." Psalm 104:15

    by WineRev on Tue Dec 18, 2012 at 10:35:21 AM PST

    •  Our hearts are in the same place (5+ / 0-)

      and I wish he would rule differently.  Nevertheless, he is a Justice of the Supreme Court, and deserves better than to be called "scum".  

      •  Scum is what it is - a title & unearned power (2+ / 0-)
        Recommended by:
        mike101, Nautical Knots

        can't change that.

        What I see in Scalia is that dangerous behavior of picking & choosing words & phrases in a codified document to end up with an interpretation agreeable to a certain, narrow group.

        It's the same thing all the various Bible-pushers do that continually leads to division & strife within a civil society.

        Also, stupid, dangerous, hurtful & unethical behaviors are too often legal because of this behavior. There is a continual eroding of trust in government when it is distorted from the public interest by corporate lobbying.

        It seems to me the GOP is giving us troublesome government as a way to allow for historical precedent showing a need for increased anti-government activity.

        They have certainly pushed for a violent, heavily armed populace that believes in a 'dog eat dog' world.

        Something that doesn't make good sense, makes bad sense. That means someone is being deliberately hurtful & selfish. Look for motives behind actions & words.

        by CA wildwoman on Wed Dec 19, 2012 at 01:44:56 PM PST

        [ Parent ]

    •  Yes, but the government did use drivers (0+ / 0-)

      licenses as a way to register voters the damn scum!

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

      by Andrew C White on Tue Dec 18, 2012 at 10:45:36 AM PST

      [ Parent ]

    •  Licensing restrictions are likely constitutional (12+ / 0-)

      But I'm not with you on the strict verb-based reading of the Second Amendment; after all, the First Amendment doesn't include the freedom to read and the Fourth doesn't protect one's car from being searched, only "persons, houses, papers, and effects."

      •  I think "effects" in 18th Century would (1+ / 0-)
        Recommended by:
        SoCalSal

        have extended to cars ...

        Economics is a social *science*. Can we base future economic decisions on math?

        by blue aardvark on Tue Dec 18, 2012 at 10:51:56 AM PST

        [ Parent ]

      •  Adam - (3+ / 0-)
        Recommended by:
        Loge, SilentBrook, ExStr8

        Here's another example of Scalia being a strict constructionist when it suits him - he believes Stinger missiles are permitted because you can "bear" (i.e., carry) them.

        By that logic, it is worth noting, viz your comment, that nowhere in the Constitution is the right conferred to actually USE arms, only to keep and bear them. Nor does the right to a free television or radio station or Internet appear anywhere in the Constitution.

        Politics is about the improvement of people's lives. - Paul Wellstone

        by occams hatchet on Tue Dec 18, 2012 at 10:59:02 AM PST

        [ Parent ]

      •  Dude, they practically can search your car (1+ / 0-)
        Recommended by:
        fuzzyguy

        They can make you wait for two hours, check all areas the driver could access, and even run a k-9 thru it.

        I'd say our cars aren't much protected these days.  Thank you Republicans and Democrats.

        The symbol for the Republican party shouldn't be an elephant -- it should be a unicorn.

        by Deadicated Marxist on Tue Dec 18, 2012 at 01:09:56 PM PST

        [ Parent ]

        •  That does it! Right to Keep and Drive Cars (RKDC)! (1+ / 0-)
          Recommended by:
          armd

          Dammit, we need to add this to the Bill of Rights. Every American should have their right to keep and drive cars embedded in a Constitutional Right, that shall not be infringed. We need a new Amendment! RKDC!

          This right is necessary for the common defense, for uncommon defenses, and to get your Christmas shopping done.

          Are Republicans going to take away our cars? Will they infringe on our right to drive? Are they going to start restricting the size of cars or motors we can use, or the number of vehicles? It's a slippery-slope: first they come up with CAFE standards, the next thing you know they're tearing down your garage door and towing away your 454ci Mustang.

          How can any American who loves freedom, the open road, and Boss Bruce Springsteen be opposed to the RKDC Amendment?

      •  Probably not for ownership. (0+ / 0-)

        Possibly not for open carry. (that one's pending a definitive ruling on the meaning of "bear", which we will probably get int he next year or two.)

        almost certainly for concealed carry.

        But...

        Such licences would have to be non-discretionary... If you meet a clearly-defined and equally-applied-to-all standard, the government must give you one. They also could not be subject to fees in excess of what is required to process them. So the idea of requiring a licence, and making it too expensive for anyone to get won't fly. There's a long list of precedents that say that charging fees or taxes to exercise an enumerated right is prohibited by the Constitution. Those are precedents that we liberals really, really don't want to weaken.

        And a Federal license might not fly at all. The Federal government doesn't have plenary powers. There's a reason we don't have national driver's licences.

        --Shannon

        "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
        "Dissent is patriotic. Blind obedience is treason." --me

        by Leftie Gunner on Wed Dec 19, 2012 at 08:38:17 PM PST

        [ Parent ]

    •  If you want to be consistent (3+ / 0-)
      Recommended by:
      SilentBrook, FrankRose, fuzzyguy

      Then you should also hold that freedom of speech refers only to verbal communication, if you hold to the literal meaning of "speech".  I don't believe in either a literalist or originalist interpretation of the Constitution, so I see your attempt as merely a silly word game that should not be considered in any way meaningful.

    •  It is, however, (4+ / 0-)

      possible to find examples of registration lists for guns being used in confiscation efforts. See CA and the SKS.

      Rare, yes, but unheard of, no.

      "A lie is not the other side of a story; it's just a lie."

      by happy camper on Tue Dec 18, 2012 at 11:09:23 AM PST

      [ Parent ]

    •  The US constitution is not the only one ... (0+ / 0-)

      ... to recognize the right to keep and bear arms. The Mexican constitution does too.

      Citizens of the republic may, for their protection, own guns and arms in their homes. Only arms sanctioned by the Army may be owned, and federal law will state the manner in which they can be used (Firearms are prohibited from importation into the Republic without proper licensing and documentation. Foreigners may not pass the border with unlicensed firearms; the commission of such act is a felony, punishable by prison term.  (Original here as Articulo 10)
      Interestingly, it too is silent on the question of trading, selling and buying. So, Mexico solves this by granting a subagency of the Army a monopoly on gun sales. Not that Mexico has the gun-violence problem solved any better than we do, because there's an extensive private secondary market where regulations requiring recordkeeping, like most regulations in Mexico, are ignored.

      But it would be interesting to see what would happen if one of the states decided to do the same thing here (much as several already do with liquor sales). I can't see how it would be unconstitutional.

    •  It seems to me that IF you have a right to keep (2+ / 0-)
      Recommended by:
      fuzzyguy, Justanothernyer

      something (i.e. piece of property) that right is somewhat useless if you can't buy, sell, or trade it.

      I agree the Commerce Clause is wide and vast in the power it grants Congress, but the problem here is, IF we are going to say the 2nd Amendment applies to individuals, as the Supremes have now so ruled, then it is one of the few, if only, property based things in the BOR.

      There isn't an Amendment that specifically addresses a thing other than guns (arguably homes in the 3rd and 4th Amendment, but that's less about the right to "posses" a home than the right to be secure in your home--still probably the only other example).

      Then there's the whole 5th Amendment Due Process thing.

      I think you are right that licensing, registration, etc are all copasetic under the current 2nd Amendment jurisprdunce, the problem there is political, not judicial...but I suspect the courts would find some limits if you went too far.

      •  But look at the intent. The amendment doesn't (1+ / 0-)
        Recommended by:
        CA wildwoman

        anticipate keeping, selling, trading and bearing. And given the historical context, you were supposed to keep it... you know, militia and all that.

        It seems that they only ruled only on one narrow question, absent a decision of regulation, obviously, therefore I would agree that just about everything else is up in the air. At least that's what I read into this.

        202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

        by cany on Tue Dec 18, 2012 at 02:16:28 PM PST

        [ Parent ]

        •  So I have been advocating everywhere the KEEP (3+ / 0-)
          Recommended by:
          Debby, cany, CA wildwoman

          part.

          Felony - failure to secure deadly weapon
          Accessory - to any crime made with your unsecured weapon
          Intent to murder - possession of a gun without a serial number.

          We have always glossed over the word keep.  Gun owners need to keep their guns.  Take responsibility for their guns.  Control their guns.

          We can call it the Charlton Heston cold dead hands laws.

          Hey, GOP - Get In, Sit Down, Shut up, & Hang On!

          by 88kathy on Tue Dec 18, 2012 at 03:08:52 PM PST

          [ Parent ]

      •  So licencing and registration would be fine... (0+ / 0-)

        for the First, Fourth, Thirteenth and Twenty-Fourth Amendments too, right?

    •  "Train" users. "Enlist" users. "Send" users to (1+ / 0-)
      Recommended by:
      CA wildwoman

      fight.

      If the National Guard = the militia, then non-Guard members should not have antipersonnel grade weapons.

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

      by dadadata on Tue Dec 18, 2012 at 01:57:45 PM PST

      [ Parent ]

  •  If you read it literally (4+ / 0-)
    Recommended by:
    Loge, SilentBrook, Miggles, sfbob

    The "well regulated militia" part strongly suggests that the authors had no issues with gun control per se (to the extent it was an issue) but also strongly felt that both state militias and guns were a matter for states to regulate.

    So the permissible range of Federal law is probably relatively constrained (e.g., automatic weapons, and rather importantly, interstate transport rules and registration).  But states should be able to do what they want -- if New Jersey decides that well regulated militias shouldn't have to duke it out with armed psychos, they can regulate themselves accordingly with strict handgun laws, no open carry, and very restricted concealed carry rules.  Illinois can ban handguns if they want (the court rulings otherwise are wrong; period.)   If other states want to allow open carry and all that, well, the rest of us have the right to tell them to check their iron at the border of our state.

    I'm not sure what to say about DC.  On one hand, it's a "federal" jurisdiction, on the other hand it's not affecting any state's 2nd amendment rights to not have gun laws.

    And the 2nd amendment is primarily about states, not necessarily individuals.  Both sides have it wrong.  The 2nd amendment clearly does not require laissez-faire policies toward guns, but it's not silent on gun ownership either.

    •  These are the issues (4+ / 0-)
      Recommended by:
      Adam B, sfbob, BachFan, Justanothernyer

      the Court confronted in Heller.  Because of D.C.'s special status, SCOTUS could rule on the second amendment directly.  And then as for states, it held in McDonald that the Second Amendment (as interpreted by Heller) was "incorporated" into State constitutions via the 14th amendment.  The prevailing test for incorporation is that the right be "implicit in the concept of ordered liberty," i.e., we can't have a free society without it.  That's how radical the GOP 5 have gotten.  (Indeed, by this standard, I can see how the criminal procedure amendments had to be incorporated as they were systematically ignored to perpetuate racial inequality, but there are a number of largely free societies that don't have anything near our 1st Amendment.  Fodder for another day.)  

      Difficult, difficult, lemon difficult.

      by Loge on Tue Dec 18, 2012 at 11:13:37 AM PST

      [ Parent ]

    •  The usual response from the pro-gun community ... (1+ / 0-)
      Recommended by:
      BachFan

      ... is to say that "well-regulated" in that context means only that the militia is to be well-armed.

      Yes, but ...

      ... I read it as clearly alluding to the concept of a regular army, then sort of a new thing (Cromwell had introduced it as the New Model Army a little over a century earlier. To be "regular", i.e. the first real modern army, a force had to be more than just adequately armed but extensively trained and disciplined. That's how you kick Royalist butt up and down England. (I suppose they could have been constipated, too, although it would help if they weren't. Ba-DUMP-ump ).

      Merely having enough arms to equip a small guerrilla force while not training and, yes, establishing rules about how soldiers are to handle weapons in non-combat capacities does not make gun owners as a whole a "well-regulated militia" within the meaning of the Second Amendment as it had originally been understood (I think).

      •  More-or-less on a similar page (5+ / 0-)
        Recommended by:
        sargoth, BachFan, VClib, fuzzyguy, Debby

        The phrase "well-regulated," back then, meant well-functioning.

        •  Also remember (3+ / 0-)
          Recommended by:
          BachFan, Odysseus, Daniel Case

          This was in an era when your choices were (1) a smoothbore musket that fired 4 times a minute and expelled a musket ball that was so aerodynamically stable that it was hard to aim at anything and it had a very short lethal range; (2) a rifle that took a very long time to load but with which you could actually aim at food and expect to hit it; and (3) pistols, with which you couldn't hit a barn door standing on it and which frequently didn't go off when you pulled the trigger.  There were no issues around high capacity magazines on assault rifles.

          The gun obsession is a function of the postwar South and is tied to the exurbia obsession. The Civil War was one of the first major wars to benefit (?) from huge advances in technology for armaments.  Even the muzzleloaders were rifled, and the US Army was beginning to equip the entire army with breechloaders, with some use of repeating rifles as well.  And handguns were commonly of the Colt .45 design of revolver (they are still made today).  All of these were reliable and lethal.  The sheets and crosses boys knew they were going to be heading for the (lily white) hills and began to arm themselves.

          "Heading for the hills" meant heading west, where they encountered the incumbent occupants of the local real estate.  Native Americans didn't take well to a bunch of crude, racist white guys tearing up the land, and thus was born the myth of "winning the west."

          They don't have these problems in Europe.

        •  If that is so, do we believe, given the gun (2+ / 0-)
          Recommended by:
          Debby, CA wildwoman

          violence we see, that our "militia" is well-functioning? Hasn't seemed to function very well, actually, for quite a long time.

          202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

          by cany on Tue Dec 18, 2012 at 02:23:40 PM PST

          [ Parent ]

        •  Yep, regardless (1+ / 0-)
          Recommended by:
          CA wildwoman

          of whether "well-regulated" means "well-equipped," "well-regulated," or "well-wishing," clearly the situation in the US doesn't meet that definition.

          Neither does the flood of weaponry contribute to the security of a Free State. Just one more prefatory clause on the garbage heap of history, right, Justice Scalia?

        •  I read well-disciplined and well-trained, (0+ / 0-)

          with some ideological shading of the time, that well-disciplined is well-trained is about the same thing as well-functioning.

        •  Actually, (0+ / 0-)

          when Revolutionary War militias were set up, "well-regulated" had a precise meaning of answerable to some form of properly constituted, i.e. responsible/representative, government.   My town's militia, which took eight fatalities on that morning of April 19, 1775, was fully answerable to the town meeting for every decision and action and funded by it in part.  Likewise with all the town militias that came in and fought the British army forces that day.

      •  And who has the authority (1+ / 0-)
        Recommended by:
        CA wildwoman

        to call forth such a militia?

        Section. 8.

        The Congress shall have Power

        To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

        To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.

        The NRA seems to forget about this part of the Constitution...

        It's about time I changed my signature.

        by Khun David on Tue Dec 18, 2012 at 02:45:41 PM PST

        [ Parent ]

  •  Don't forget: Heller was 5-4 (12+ / 0-)

    A brief reminder: when the District of Columbia v. Heller case was decided, Antonin Scalia wrote the Opinion of the Court, on behalf of a 5-4 majority. The four-vote dissenters included Justices Stevens and Souter, now both retired, and the principal dissent was authored by Justice Stevens.

    But there was also a second dissent. It was authored by Justice Breyer. Like Justice Stevens's dissent, it received four votes. And I believe the whole liberal side of the current Court still thinks it was correct.

    It allowed much stricter regulations than Scalia. Whereas Scalia favorably quoted a post-Civil War commentator who said

    The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”                                                                                
    Breyer took a more reasoned approach, saying
    The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

    The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.
    Scalia's greatest virtue--one that Breyer does not share--is that he's pithy and writes concisely. While this sometimes saps any nuance from his arguments, it makes him a lot easier to read and cite. So if you really want to see Breyer's analysis play out, I suggest actually reading his opinion (or at least the first paragraphs of each section of it).

    But the takeaway is this: the Supreme Court is one vote shy of recognizing the ability of our elected representatives to impose vigorous regulations on the possession, storage, registration and carrying of firearms.

    It looks like filibuster reform will be proceeding in the next Congress. And, if I'm reading my committee charts correctly, Sen. Dianne Feinstein--the sponsor of the Assault Weapons Ban and one of the most vocal voices for gun control in the Senate--is about to become the most senior member of the Senate Judiciary Committee, as Chairman Leahy moves over to run the Appropriations Committee. If she moves from the Senate Select Committee on Intelligence to Judiciary, look sharp. And even if she doesn't take the gavel, I believe the next in seniority is Chuck Schumer, who has been pretty consistent in supporting gun control over the years.

    What this adds up to is a higher likelihood that judges and future SCOTUS appointees who believe in a moderate interpretation of the Second Amendment are more likely to win confirmation in the next few years, with favorable hearings in the Judiciary Committee and likely support from a majority of Senators.

    This is a serious opportunity to bring gun regulation in the US back to the realm of where it spent most of the past century.

    "Speaking for myself only" - Armando

    by JR on Tue Dec 18, 2012 at 10:46:28 AM PST

    •  I think it's more than one vote away (5+ / 0-)

      Because I think that the Court's respect of precedent is such -- especially on the liberal side -- that a shift in the Court's membership is not enough to overturn Heller, though they could erode it through application.

      Moreover, the whole point of the diary is that there's a lot of serious gun regulation which comfortably fits within Heller as-is.

      •  ? (0+ / 0-)

        didn't the dissent in McDonald say that Heller was wrong and should probably be overturned?

        It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

        by happymisanthropy on Tue Dec 18, 2012 at 01:06:23 PM PST

        [ Parent ]

        •  Not quite (3+ / 0-)
          Recommended by:
          cany, VClib, fuzzyguy

          They do think it was wrong, and use the debate over the history to resist incorporating the right to the states, but they don't indicate how strongly they respect it as precedent:

          The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.

               Since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e.g., ....

      •  I've rec'd this comment even though (1+ / 0-)
        Recommended by:
        JR

        I believe the gist of JR's comment is to point out how contentious a ruling Heller really was--and still is, particularly now.

        By that measure, despite the court's (not always consistent) respect for precedent, Heller, rather like Citizens United, strikes me as a ruling that is rather ripe for being overturned, either entirely or in part, with even a minimal shift in the Court. After all it took only 17 years for Bowers vs Hardwick to be overturned and the overturning was done by a court not far to the left of the Roberts court.

        The right case, argued the right way, might have very significant effects.

    •  And Roberts (0+ / 0-)

      who I think sided with Scalia on that case, has little kids. School age kids. Kids who likely go to a school much like the one in Newtown.

      He might have a different view of things now.

  •  This is an important reminder that (13+ / 0-)

    not even the conservatives on the Supreme Court have ever said that the 2nd Amendment right is absolute, and that there is no such thing as constitutional regulation of guns.  Heller essentially said (my paraphrasing), yes, individuals have rights under the 2nd Amendment.  To decide this case, we don't have to say what the limits of those rights are, or set limits on the kind of regulation that would be constitutionally permissible, but clearly an absolute ban on handguns goes too far.

    I think, as in the discussion of reasonable limitations on any right, the SCOTUS will look at individual laws and weigh the burden on the citizen (guns used for "law abiding purposes" like hunting or self-defense probably should not be extremely difficult or impossible for people to obtain, more restrictions are probably permissible on guns that are not associated with those law-abiding purposes) against some "compelling" state interest in regulating the exercise of the constitutional right.

    •  Maybe there is a First Amendment analogy (2+ / 0-)
      Recommended by:
      Miggles, fuzzyguy

      A handgun ban would be like a content-based restriction on free speech, but there is room for whatever restrictions you might cast as similar to time/place/manner restrictions.

      •  Exactly (0+ / 0-)

        At least until a future S. Ct. overrules it, the Second Amendment is a fundamental right, just like the other Amendments.

        But all of the other Amendments can be regulated if there is a compelling state interest.  Any sane analysis (i.e., one that likely excludes Scalia) would conclude that there is a compelling state interest in banning or limiting military, law enforcement and other automatic and semi-automatic weapons.  Construing the Second Amendment as permitting ownership of assault weapons would be the same as construing the First Amendment as permitting shouting fire in a crowded theater.

        What more compelling state interest can there be than preventing Columbines and Newtowns?

        The GOP: "You can always go to the Emergency Room."

        by Upper West on Tue Dec 18, 2012 at 12:25:33 PM PST

        [ Parent ]

        •  the first amendment (1+ / 0-)
          Recommended by:
          Upper West

          Does allow you to "shout fire in a crowded theater." Doing so isn't a crime now, and wasn't then. All that case says is that the first amendment doesn't shield you from the consequences of your speech.

          The parallel argument in this context would be that, even if the second amendment protects your right to have a particular gun, you can still be prosecuted of you shoot somebody with it.

          --Shannon

          "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
          "Dissent is patriotic. Blind obedience is treason." --me

          by Leftie Gunner on Tue Dec 18, 2012 at 12:44:19 PM PST

          [ Parent ]

        •  Scalia wrote Heller specifically (5+ / 0-)

          acknowledging that the 2nd Amendment right could be subject to regulation, just that an absolute ban on handguns went too far.  

          If you are going to find that the Second Amendment is an individual, rather than a collective, right (and that issue was debatable, given all the history and arguments one way or the other), then saying "you can't absolutely ban a type of weapon that most people want for a lawful purpose -- self defense -- as that goes too far and is too great an intrusion on the right set out in the Second Amendment, but don't read this opinion as saying you can't regulate guns, because all of us on the Supreme Court agree that clearly you can" is a "sane" analysis.

      •  Our most over-rated Amendment: 1st (0+ / 0-)

        No other amendment gets used to do more harm than the 1st.  Yes, it's nice to express speach, but at what costs when our elections are bought and sold?

        The symbol for the Republican party shouldn't be an elephant -- it should be a unicorn.

        by Deadicated Marxist on Tue Dec 18, 2012 at 01:12:26 PM PST

        [ Parent ]

      •  As in "time and place" regulation of free speech? (0+ / 0-)

        (or what's left of free speech as many of us experience it)

        202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

        by cany on Tue Dec 18, 2012 at 02:31:46 PM PST

        [ Parent ]

      •  There are a couple ... (2+ / 0-)
        Recommended by:
        Adam B, MPociask

        ... content-based free-speech restrictions. Visual child porn, per New York v. Ferber, is the one that leaps most easily to mind. Then there's defamation (per common law) and incitement to imminent lawless action (Brandenburg v. Ohio).

        •  publishing national security secrets ... nt (1+ / 0-)
          Recommended by:
          MPociask
          •  Sort of. (0+ / 0-)

            The initial disclosure is illegal.

            Subsequent publishing of leaked classified information, by someone (like a reporter) who has no security clearance, isn't.

            The diference lies in the fact that the leaker has freely agreed to accept a limitation on their right to free speech in exchange for access to the information, and that deal is enforcable by law. The reporter has made no such deal, and so isn't subject to the penalties for breaking it.

            It's also the case that disclosed classified information loses it's classification once it's disclosed.

            --Shannon

            "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
            "Dissent is patriotic. Blind obedience is treason." --me

            by Leftie Gunner on Wed Dec 19, 2012 at 08:43:58 PM PST

            [ Parent ]

  •  Would the Court agree with a law (7+ / 0-)

    requiring registration and insurance of all guns ... said insurance to pay off if the gun was used in a crime?

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Tue Dec 18, 2012 at 10:50:03 AM PST

    •  Add in felony charges against negligent owners (4+ / 0-)
      Recommended by:
      blue aardvark, ExStr8, cany, Debby

      (-2.38, -3.28) Independent thinker

      by TrueBlueDem on Tue Dec 18, 2012 at 01:26:38 PM PST

      [ Parent ]

    •  We may well find out. (1+ / 0-)
      Recommended by:
      blue aardvark

      I think that in the future the RKBA community may come to rue Heller in the same way that we in the pro-choice community sort of rue Roe, as in "it establishes a right but so many exceptions have been allowed since then as to make it a shell of what it was." Now that Heller established that it is an individual right under the Constitution, it can be subject to the same balancing tests and analyses all the other ones are, with the same sometimes infuriating results to a proponent of the right thus established. Before, it was beyond the reach of them, and gun owners might well arguably someday be said to have had more real rights before Heller.

      With the individual right to keep and bear arms now thus enshrined in the nation's jurisprudence, it's inevitable, especially after Newtown, that the Court, regardless of composition, will take back a little of what it gave out when regulations come before it. I could easily see, for instance, a law requiring CC permit holders to submit to random drug tests passing Constitutional muster—if it was good enough for armed Customs agents in Von Raab v. National Treasury Employees Union, it's certainly good enough for regular Joes with permits (given Scalia's bitter dissent in that case, though (so bitter Stevens actually signed it as well), it would be interesting to see how he'd handle it).

  •  Rights are not unlimited (3+ / 0-)

    I believe in balancing tests to determine when restrictions on rights are common sense and tolerable, so I would look at the conditions that permit government to place reasonable restrictions on other rights found in the Bill of Rights.

    •  the use of a balancing test (1+ / 0-)
      Recommended by:
      ancblu

      For the application of the right to be armed is explicitly ruled out in both Heller and McDonald.

      we don't have a standard of review yet, but we do know that rational basis won't be it.

      --Shannon

      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Tue Dec 18, 2012 at 12:47:15 PM PST

      [ Parent ]

  •  As for the Second Amendment, (3+ / 0-)
    Recommended by:
    SilentBrook, Inland, sfbob

    the answer is that it has zero effect of how legislatures want to curtail the private ownership of weapons, but does limit what happens to militas should the federal government cease to operate a standing army.  What the Courts would allow is very different.

    My guess is anything that can pass Congress, Heller leaves enough room to uphold, especially if the political winds are shifting in favor of reasonable and well regulations.  

    This is important analysis, especially the discussion of how lower courts operate, but the initial premise of gun jurisprudence is just so wrong, and Judge Posner is forced to argue around such awkward constructions:  

    "To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."
    The issue is the entire notion of the amendment enshrining a right to private ownership.  Get rid of that, you're not confronted with the issue.

    Separately, Judge Posner's analysis of the "right" to self-defense is completely unbalanced.  He's assuming away the right of the legislature to make the policy judgement about whether, on net, widespread gun ownership makes us safer.  

    My biggest concern is how narrow the "dangerous and unusual weapons" exception really is.  The idea that an assault weapons ban or a ban on high magazine sales would be unconstitutional under the Heller framework wouldn't be at all unprincipled.  The language is weasel-y, and there's support for the practice that "dangerous and unusual" is what the political branches say it is, but there's also a practice of courts substituting their judgment for the democratic process, as noted.  I think at least either Roberts or Kennedy would be loath to strike down anything that might pass in belated response to Newton, however.

    I think you also have to look at the issue from the commerce clause side - the federal government, for instance, evidently couldn't make school zones "gun free," which I bring up because it's Posner's example.

    Difficult, difficult, lemon difficult.

    by Loge on Tue Dec 18, 2012 at 10:52:29 AM PST

    •  Posner is exposing the (1+ / 0-)
      Recommended by:
      Loge

      unworkable and nonsensical aspects of the SCt cases. Of course "bear arms" is public; so is the militia.  Bearing arms always was a military term, unlike "owning".  You can't do it in your home.  Scalias finding of a right to own guns privately is wrong.

      One piece of free advice to the GOP: Drop the culture wars, explicitly.

      by Inland on Tue Dec 18, 2012 at 11:37:33 AM PST

      [ Parent ]

      •  so (0+ / 0-)

        keeping and bearing are two different things.  But are "militia" and "the people" identical sets?  And if not, which one does the right belong to?

        It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

        by happymisanthropy on Tue Dec 18, 2012 at 01:09:05 PM PST

        [ Parent ]

        •  And neither one is "owning" and neither (0+ / 0-)

          one is related to self defense and neither has to do with a home.

          Bottom line, the states can regulate keeping and bearing arms because they regulate the militia.

          The federal government cannot infringe upon the keeping and bearing of arms to the extent it is pursuant to a well regulated militia.

          There.  No backflips.  No making "keep and bear" synonomous with "owning". No dropping words down the memory hole.  No reading newspapers from 1880 to find some sort of general right of self defense with guns incorporated into the consitution by osmosis.  No crackpot theories about the second providing individuals with the means to rebel.  

          It's.  Just.  Reading.

          One piece of free advice to the GOP: Drop the culture wars, explicitly.

          by Inland on Tue Dec 18, 2012 at 01:35:39 PM PST

          [ Parent ]

          •  but (1+ / 0-)
            Recommended by:
            Adam B
            Bottom line, the states can regulate keeping and bearing arms because they regulate the militia.
            They regulate the militia according to standards provided for by Congress.  How this would be relevant to the regulating of arms kept and borne by people who are not members of the militia is unclear.
            The federal government cannot infringe upon the keeping and bearing of arms to the extent it is pursuant to a well regulated militia.
            Even the Miller court never interpreted the second amendment that narrowly.  There's not one scintilla of evidence that the second amendment was ever intended to apply to militia members only, nor has any supreme court interpreted it thus.  

            Indeed, interpreting it thus is self-negating, since it's obvious that there is no need to prevent Congress from disarming the people Congress chooses to arm.  (Article I:  Congress provides for arming the militia.)

            No making "keep and bear" synonomous with "owning".
            It's not clear to me how a person can exercise his or her right to "keep" or to "bear" arms that he or she does not own.  It seems pretty constrained.
            No reading newspapers from 1880 to find some sort of general right of self defense with guns incorporated into the consitution by osmosis.
            There's no right to breathe in the constitution either.  Some things go without saying.  
            No crackpot theories about the second providing individuals with the means to rebel.  
            Are crackpot theories lifted verbatim from the federalist papers acceptable?
            It's.  Just.  Reading.
            and reading will show you that rights are for individuals.  States do not have any rights.  Neither do militias.

            It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

            by happymisanthropy on Tue Dec 18, 2012 at 03:09:03 PM PST

            [ Parent ]

            •  The word "own" isn't in there. (0+ / 0-)

              You have to walk before you can run.  The claim that the second provides a right to own guns is disproven by the lack of the word "own", which was a word well known to the framers.  

              Once one accepts that...and it's not like you have a choice....it becomes clear.  The intent wasn't to provide a right to own guns, but only to prevent the federal government from infringing on "keeping and bearing", two words consistent with militia service but not implicating private ownerhip.  The first words don't have to be ignored; the intent of safequarding a well regulated militia is again inconsistent with ownership.

              It's not a history lesson.  It's not mystical.  No knowledge of any specialized language is required.  Just showing how, once one recognizes the existence of the word "own" it all makes sense.

              One piece of free advice to the GOP: Drop the culture wars, explicitly.

              by Inland on Tue Dec 18, 2012 at 04:05:11 PM PST

              [ Parent ]

              •  what? (0+ / 0-)

                how does that describe any right at all?

                The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
                My state's constitution specifies self-defense, but it doesn't include the word "own" either.  I guess I'm outta luck.

                Or, you're full of it.

                Signed, someone with no right to own a computer and therefore no right to speak through one.  (The word own is not in the first amendment!  Look it up!  Onoz!)

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Tue Dec 18, 2012 at 04:23:07 PM PST

                [ Parent ]

                •  I don't understand that: (0+ / 0-)

                  My construction describes a right critical to states and the people depending on state militias to suppress slaves and defend against Indian attacks. You seem to think that we have to make it useful to you personally.

                  BTW: "self defense" also a concept known to framers.  Not in there.

                  Your state is allowed to restrain itself any way it likes. Irrelevant to the second amendment to the fed constitution.  

                  One piece of free advice to the GOP: Drop the culture wars, explicitly.

                  by Inland on Wed Dec 19, 2012 at 06:25:02 AM PST

                  [ Parent ]

                  •  The Framers also knew (0+ / 0-)

                    about breathing, too  bad it isn't protected under the constitution.

                    States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                    by happymisanthropy on Wed Dec 19, 2012 at 09:45:01 AM PST

                    [ Parent ]

                    •  It doesn't have all the rights you want. (0+ / 0-)

                      I dont think that is a surprise to anyone, given slavery and lots of other stuff the founders accepted  You're going to have to rely on voters to judge what additional rights you should have.

                      One piece of free advice to the GOP: Drop the culture wars, explicitly.

                      by Inland on Wed Dec 19, 2012 at 01:11:21 PM PST

                      [ Parent ]

                  •  also (0+ / 0-)
                    You seem to think that we have to make it useful to you personally.
                    I'm not asking you to make it anything.  It's mine.  How I use my individual right is none of your damn business.

                    States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                    by happymisanthropy on Wed Dec 19, 2012 at 09:46:47 AM PST

                    [ Parent ]

                    •  Whether you have a right is in question. (0+ / 0-)

                      That is all.

                      One piece of free advice to the GOP: Drop the culture wars, explicitly.

                      by Inland on Wed Dec 19, 2012 at 01:13:10 PM PST

                      [ Parent ]

                      •  Not really. (0+ / 0-)

                        Whether we should have that right is in question.

                        What the limits of that right are, as a restraint on the powers of government, is still being worked out in the courts.

                        But, under our system, unless and until Heller and McDonald are overturned, or the Constitution is ammended, (neither of which I consider likely,) we do have it. The Supreme Court is the final arbiter of the meaning of the Constitution, as it applies to the actions of the government.

                        That's why this diary is so critical, for every side of this debate.

                        --Shannon

                        "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
                        "Dissent is patriotic. Blind obedience is treason." --me

                        by Leftie Gunner on Wed Dec 19, 2012 at 08:48:30 PM PST

                        [ Parent ]

                        •  "should" is a question for legislatures (0+ / 0-)

                          not judges.  Let's vote.

                          And don't put much faith in the staying power of the five-four decisions overturning a century of settled law.    There isn't going to be another set of five justices with radical agendas.  

                          One piece of free advice to the GOP: Drop the culture wars, explicitly.

                          by Inland on Thu Dec 20, 2012 at 10:07:25 AM PST

                          [ Parent ]

            •  I can (0+ / 0-)
              It's not clear to me how a person can exercise his or her right to "keep" or to "bear" arms that he or she does not own.  It seems pretty constrained.
              Imagine a regime under which the government issues a weapon to everybody qualified to keep in their home or bear ... and forbids private ownership. It's possible, if not likely. It's also close to the norm on military posts.

              Indeed, I think that was the case in some of the colonies ... that arms were kept generally in some communal location, and only distributed to homes when there was some danger reported afoot.

              •  um, not at all. (0+ / 0-)
                It's also close to the norm on military posts.
                no, guns on military bases are mostly kept locked up.
                Indeed, I think that was the case in some of the colonies ... that arms were kept generally in some communal location, and only distributed to homes when there was some danger reported afoot.
                If there were a serious shortage of firearms or ammunition for
                the militia, as Bellesiles claims, it seems strange that the Provincial Congress on June 17,
                1775 (almost two months after Redcoats fired on Minutemen at Lexington) recommended to
                non-militia members “living on the sea coasts, or within twenty miles of them, that they
                carry their arms and ammunition with them to meeting on the [S]abbath, and other days
                when they meet for public worship.”
                7
                  Somehow, there was a shortage of guns and
                ammunition for the militia, but non-militia members still had enough arms and ammunition
                that they were encouraged to bring them to all public meetings.

                States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                by happymisanthropy on Tue Dec 18, 2012 at 08:35:02 PM PST

                [ Parent ]

                •  Whatever (0+ / 0-)

                  My larger point was that it is entirely possible to imagine a society in which all firearms are government property issued to private citizens to keep and bear, and have that be consistent with the wording of the Second Amendment.

                  •  if they were property of the government, (1+ / 0-)
                    Recommended by:
                    Adam B

                    individuals would hardly be free to keep them and bear them except as desired by the owners of the issuing authority, making it nothing remotely resembling a right.

                    States' rights? Corporate rights? Militia rights? Government rights? Hell no! Only individuals have rights. Proud lifelong human supremacist.

                    by happymisanthropy on Tue Dec 18, 2012 at 11:40:10 PM PST

                    [ Parent ]

                    •  The only difference between that ... (0+ / 0-)

                      ... and the existing situation is who owns the guns. If you are qualified (no criminal or psychological history), you get to buy one or however many you wish, and you can carry it around if the government decides you meet its standards, and if you somehow no longer meet those standards (felony conviction or mental illness) you have to surrender the weapon (at least in theory). The government is already, as a practical matter, the "issuing authority."

                      Is that really so much different from my hypothetical? If it isn't a right because the government can make you surrender guns you own under certain conditions not mentioned in the Second Amendment but that no one seriously disputes, then we are long since out of constitutional compliance already and this discussion is moot.

                      •  Yes, it is. (0+ / 0-)

                        And here's why:

                        Under the existing system, you have the right unless the government can prove, in a court of law, that you have taken actions which allow it to be taken away. (Yes, the boundaries of the right are still in flux.)

                        Your thesis turns that upside down.

                        --Shannon

                        "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
                        "Dissent is patriotic. Blind obedience is treason." --me

                        by Leftie Gunner on Wed Dec 19, 2012 at 08:50:51 PM PST

                        [ Parent ]

                        •  We've drifted (0+ / 0-)

                          The original question was whether "keep and bear" necessarily implies a right to private ownership, if you want to be a Scalia-level textualist or literalist. My hypothetical case (which is likely to remain a hypothetical) would be a government buying guns and then issuing them to citizens who ask for them and otherwise meet requirements similar to those in place in the real world to keep in their homes and, if they meet the standards, bear at leisure in places allowed by law. The resulting situation would outwardly be the same as the present.

                          The question before a hypothetical court would be, does this situation comply with the Second Amendment because citizens without disability have the right to keep and bear arms even though they don't own them? (It's similar to the situation with police, who generally take their department-issued duty guns home and keep them there until they go back to work. They are government property but otherwise, when an officer is off-duty, indistinguishable from any privately owned firearm).

                          I could see a rational reason why a government might want to do things this way, if a well-regulated militia is necessary to the security of a free people, then perhaps a government would want to make sure that the potential members of that militia have up-to-date arms in good working order, rather than relying on whatever arms people happen to decide to have (you wouldn't want an invasion by a modern army being repelled by people armed primarily armed with the shotgun last fired by grandpa 25 years ago). It could arguably be the sort of policy choice courts have held within the realm of legislatures to make.

                          So, if the criteria for issuing guns to citizens requesting them are broadly applied, and those who would be issued the guns are otherwise unmolested by the law save for anything that currently exists, has the right to keep and bear arms been infringed even though the citizens themselves do not actually own the guns they keep and bear?

  •  Depends... (3+ / 0-)
    Recommended by:
    sagesource, sfbob, fuzzyguy

    For instance, if you are Black, you should not have the right to possess nunchucks, whereas if you are White then you should be able to arm yourself to the teeth against the government.

    At least that's what I learned from watching Fox.

    Money doesn't talk it swears.

    by Coss on Tue Dec 18, 2012 at 11:01:58 AM PST

  •  Second Amendment (0+ / 0-)

    The Supreme Court should have said that the amendment does not apply to state regulation, only federal regulation, and the 2nd Amendment right is not incorporated into the 14th Amendment.  They have not said that, and with five gun nuts on the court, they are unlikely to say that.

    We are left with the issue of what it means to have the right to "keep and bear arms."  If you truly believe that the right to aim a pistol and dial the phone at the same time (Scalia) is a fundamental individual right, I do not see how the states can, consistent with a fair analysis of that mandate, do much to regulate guns.

    My brother is mentally ill and lives in a bad part of town, so if he has a fundamental right to defend himself with a handgun, how does his state have the right to say, "He is mentally ill, per se he cannot have a gun"?  You need a COMPELLING state interest and a law NARROWLY tailored to achieve that interest.  At the very least, the mentally ill should have the right to get a doctor's note stating they are not dangerous.  Right?  Even felons - Wesley Snipes cheats on his taxes; can't have a gun?  

    The whole analysis of how "arms" allow you to protect yourself against the government needs analysis as well.  If my government has choppers and tanks, why can't I?  If the whole purpose of the amendment was to prevent federal tyranny, how can the government make me bring a regular shotgun to a sawed-off shotgun fight?

    Intellectually, the whole analysis makes no sense.

  •  A very relevant way to look at gun laws (2+ / 0-)
    Recommended by:
    Otteray Scribe, fuzzyguy

    and I'll re read to make sure I get it all.

    How big is your personal carbon footprint?

    by ban nock on Tue Dec 18, 2012 at 11:05:53 AM PST

    •  Remember as you re-read it (2+ / 0-)
      Recommended by:
      Agathena, Odysseus

      the diary's insistence that four justices of the Supreme Court and a majority of constitutional scholars continue to believe Heller was wrongly decided.

      That is, except for the rightwing extremists who proposed the idea and the five Supreme Court justices they succeeded in getting appointed to the court, very view knowledgeable observers believe the Second Amendment confers an individual right to keep and bear arms.

      It's a radical rightwing idea, which has done tremendous harm to our country.

      When the union's inspiration /Through the workers' blood shall run /There can be no power greater /Anywhere beneath the sun /Solidarity Forever!

      by litho on Tue Dec 18, 2012 at 11:26:10 AM PST

      [ Parent ]

  •  It's really quite simple: (4+ / 0-)

    we have no compunction about limiting the OTHER amendments...e.g. the first amendment guarantees free speech (and nowhere does it say "A well regulated press being necessary for the security of a free state....") and it's virtually universally agreed that you can't yell "FIRE!" in a crowded theater or divulge nuclear launch codes FOR THE PUBLIC SAFETY.

    Ergo: you can enact reasonable restrictions on guns to maintain THE PUBLIC SAFETY and still keep the essence of a "right to keep and bear arms." The question isn't what does the constitution allow, it's what does your spine permit?

    "There she lusted after her lovers, whose genitals were like those of donkeys and whose emission was like that of horses." -- Bible (yes, THAT Bible) EZ: 23 19-20

    by PBJ Diddy on Tue Dec 18, 2012 at 11:12:04 AM PST

  •  Well (1+ / 0-)
    Recommended by:
    Miggles

    It seems that at the present moment the "common use" language is very pertinent, in regards to efforts to re-enact an assault weapons ban. I see no difference between a so-called "machine gun" and a Bushmaster, even if a certain proportion of hunters value the efficacy of that model of rifle.

    I look forward to being lambasted and mocked now by the pro-gun advocates for my benighted and imperfect understanding of gun culture minutiae.

  •  God. This is such a bad court. (1+ / 0-)
    Recommended by:
    Agathena

    The opinions are broad statements of rights followed by pages of vague, meaningless statements about qualifications that may be acceptable.  It reads like a politician's press release more than a legal opinion  

    One piece of free advice to the GOP: Drop the culture wars, explicitly.

    by Inland on Tue Dec 18, 2012 at 11:29:04 AM PST

  •  K.I.S.S. summary of this diary? (1+ / 0-)
    Recommended by:
    sfbob

    Title of diary is "What gun control does the Second Amendment allow?"

    I would love a quick answer which is easy to copy, paste, and circulate.

    Meanwhile, you might be interested/amused to know that back in FDR's first term, Harold L. Ickes was commenting that constitutional originalists, strict constructionists were using it as a veto tool against whatever they wanted to say no to.....and contrary to the ample evidence that the Founding Fathers intended The Constitution not to be static.

    I'm reading, from 1934
    The New Democracy by
    Harold L. Ickes

  •  Horrible, horrible, awful decision and even (1+ / 0-)
    Recommended by:
    ExStr8

    worse logic.

    Basically, as long as 10 or 20 million people have an assult rifle, then basically that constitutes "common" home defense. And as long as 10 or 20 million people are walking around with 50 caliber Desert Eagles, then hey...that's personal defense!

    •  The related point (0+ / 0-)

      Is that while it may have been Constitutional to ban owning an AR-15 when it was invented, now they're just so dang popular that they transubstantiated from a hunk of metal to a Constitutionally protected means of self-defense.

      Scalia - the text is important!  Except when I ignore it, and start talking about self-defense, instead.  The original intent is important!  So I'll refer to post-Civil War legal commentators.

    •  Except these guns are not commonly used for (0+ / 0-)

      defense.  They are used for "fun", for "sport", and for slaughter.

  •  Maybe a new Court under new Justices will (1+ / 0-)
    Recommended by:
    DefendOurConstitution

    "pronounce the 2nd Amendment extinct" sometime in the future after more and more school children are murdered.

    it is not the role of this Court to pronounce the Second Amendment extinct.

    ❧To thine ownself be true

    by Agathena on Tue Dec 18, 2012 at 11:47:22 AM PST

  •  Scalia himself said that communities (1+ / 0-)
    Recommended by:
    sfbob

    have the right to protect themselves against certain groups and activities, i.e. that majority rights sometimes trump minority rights. Of course, he said this in Lawrence v. Texas, in a way that rightfully outraged most people here. But he did set a precedent for himself on such thinking.

    Of course, being Scalia, it's not reasonable to expect him to be consistent here. He invariably rules according to how he wants the law to be.

    Still, what he said is out there.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Tue Dec 18, 2012 at 11:57:01 AM PST

    •  Scalia says many things that could... (3+ / 0-)
      Recommended by:
      BachFan, kovie, ExStr8

      under proper circumstances, come back to bit him in the rear.

      If I were on the Supreme Court, on the progressive side, I'd probably want to remind him of this on a regular basis.

      Scalia isn't as smart as he likes to think he is.

      •  I've no doubt that Ginsberg regularly teases him (1+ / 0-)
        Recommended by:
        ExStr8

        about this during their regular chats about opera. As if that would help. He bought into the whole straight conservative white male patriarchy thing decades ago and isn't about to go back on it. Funny how it's members of historically oppressed minorities who sometimes make the most useful idiots.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Tue Dec 18, 2012 at 02:04:42 PM PST

        [ Parent ]

  •  I see where you're going here (0+ / 0-)
    Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the "common use" requirement
    Estimates range between 4-15 million legally owned assault weapons in the United States.  That is a lot, but comparatively, assault weapons make up only 1-2% of all guns legally owned in the US.

    The common use terminology may be able to be utilized.  However, any further pushes in regard to bans on other types of fire arms would not hold much weight using your argument.

  •  Certainly the SCt does not say the govt (0+ / 0-)

    cannot limit the number or types or capabilities of guns one can own,

    and, one could argue, contrary to Scalia's assertion that a militia must have sophisticated weapons to be a militia, in the age of terrorism, a militia can use box cutters as an effective weapon, it appears there are very few limitations on regulation imposed by the second amendment.

    "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

    by Publius2008 on Tue Dec 18, 2012 at 12:09:35 PM PST

  •  Does the 2nd amendment protect ammunition? (1+ / 0-)
    Recommended by:
    Debby

    Chris Rock made the joke about a bullet costing $5k would mean you'd never see another innocent bystander.

    How about outlawing the owning of live metal ammo?

    Our Fair City...a campy post-apocalyptic science fiction radio epic!

    by The BBQ Chicken Madness on Tue Dec 18, 2012 at 12:14:08 PM PST

    •  I'm a big fan of this approach... (2+ / 0-)
      Recommended by:
      ExStr8, Debby

      Without ammunition, a firearm isn't good for anything except clubbing someone over the head -- assuming you can get close enough to the target to reach that head.

      "Specialization is for insects." -- Heinlein

      by BachFan on Tue Dec 18, 2012 at 01:22:16 PM PST

      [ Parent ]

    •  Yes. (0+ / 0-)

      The Heller decision discusss an individual right to a functional firearm.

      Firearms aren't functional without ammunition.

      Switching the focus from guns to ammunition won't get you where you want to go.

      --Shannon

      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Wed Dec 19, 2012 at 08:53:05 PM PST

      [ Parent ]

      •  Rubber Bullets? (0+ / 0-)

        Might be interesting to see the arguments over allowing the public to purchase rubber bullets (which, admittedly can still be leathal) and strictly regulating metal ammo.

        Rubber bullets would certainly be enough in a home invasion or personal protection arguement -- it's not like they're unable to incapacitate. Shooting ranges would be safer and easier to maintain if everyone was using rubber ammo. While metal roounds used for gaming (hunting/sport) would be regulated.

        Would a gun with rubber bullets (or bean bag, in the case of shotguns) be considered functional? Is there any discussion of that in established law?

        Our Fair City...a campy post-apocalyptic science fiction radio epic!

        by The BBQ Chicken Madness on Thu Dec 20, 2012 at 07:55:18 AM PST

        [ Parent ]

        •  I'm not aware of any case law. (0+ / 0-)

          I am,.however, pretty sure that shooting someone with rubber bullets is still considered deadly force, so legally speaking, it's a distinction without a difference.

          --Shannon

          "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
          "Dissent is patriotic. Blind obedience is treason." --me

          by Leftie Gunner on Thu Dec 20, 2012 at 12:24:19 PM PST

          [ Parent ]

          •  As it should be, but that's different. (0+ / 0-)

            If shooting someone with a rubber bullet allows for the same penalty as shooting someone with a metal bullet, that's the way it should be in my book. They can be leathal, so the law should reflect that fact.

            But, and let's take the extreme example, if the US Government made it illegal to possess metal ammo in this country unless you were a) active military, b) active law enforcement, or c) on a legally designated hunting ground or shooting range rated for metal ammo.

            That means that you could no longer purchase metal bullets over the counter, grossly limiting access to it overall. It would create additional penalties to criminals who use them in crimes. It would provide law enforcement another avenue for prosecution. It would drive the cost of metal ammo on the black market up. It would create an additional layer of regulation to gun market.

            And while I have absolutely no statistics to back this up...I sense that given the relative decrease in leathality between a metal and rubber bullet, it seems quite possible many gunshot victims that have died might not have if they were hit with the latter instead of the former.

            Of course, there is also the flip side, and whether criminals would be more willing to fire a weapon knowing it is less likely to kill (attempted murder vs murder charges).

            But again...that's just talking here. It "feels" like it would help in a lot of ways. It certainly isn't the end-all-be-all answer, but I'd be curious what a deeper discussion would reveal.

            Our Fair City...a campy post-apocalyptic science fiction radio epic!

            by The BBQ Chicken Madness on Thu Dec 20, 2012 at 12:43:38 PM PST

            [ Parent ]

  •  K.I.S.S. verion please (0+ / 0-)

    I'd love to have something to circulate...something really qujick and easy which answers the question the title of the diary poses.

    Thanks.

  •  If you have an arsenal (0+ / 0-)

    are you not a de facto militia?

    "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

    by Publius2008 on Tue Dec 18, 2012 at 12:24:19 PM PST

  •  Letting Antonin Scalia decide.. (2+ / 0-)
    Recommended by:
    ExStr8, looty

    ..that we will have mass murders sanctified by a willful misreading of an archaic construct in the Constitution is pure insanity.  Red, white, and blue flag-draped insanity.

    Defending the personal ownership of assault rifles on the idea that they would be useful in a militia?  Apparently, the Constitution IS a suicide pact.

    When extra-terrestrial beings make their first appearance on our planet, and ask for representatives of our species to best exemplify humanity, I'm sending a nurse, a librarian, and a firefighter.

    by Wayward Son on Tue Dec 18, 2012 at 12:30:50 PM PST

  •  Planners of war become timid because of your gun. (0+ / 0-)

    No. The planners of war gather more or a better guns. We are in a lot of trouble. Anyone familiar with recent data from climate change knows it and these cases inspiring more domestic war make it all even worse to know.

    We didn't lose enough people in the real Civil War. We need to promote a little modern one. I have to wonder what our history would look like without this stupid gratuitous article of war. We would have all our freedoms and we could settle this with speech. We traded the big monarchism of Europe for the small monarchism of this Constitution.

  •  That's the nub of this debate in Heller, which I (1+ / 0-)
    Recommended by:
    fuzzyguy

    have read many times.  It's a great recap of the history of the RKBA.  

    I think the bright line may be logically drawn at "dangerous and unusual weapons", and limited to the amount of firepower an ordinary soldier can bring to bear, i.e. a rifle and magazine of the general issue given to our military, and not more.  An M-16 with a 30 round NATO magazine could easily be justified using the logic laid out for a question not reached in Heller.  That would eliminate full auto machine guns (i.e. SAWS) and shoulder fired ordinance, i.e. RPG's, but allow the common citizen to be on equal terms with the average grunt.   Anyone who does not understand the logic of this argument on the limits of the RKBA should read Heller, again and again, in order to understand the legal impediment to any blanket ban of semi automatic rifles with extended magazines.    Any legislation which proposes that may get an issue reached before the Supremes that many people may regret was ever raised.  

    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.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” ....

    It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of 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. 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.

    Intolerance betrays want of faith in one's cause. - Gandhi

    by SpamNunn on Tue Dec 18, 2012 at 01:22:54 PM PST

    •  I am not sure what you're seeing there (0+ / 0-)

      The passage you quoted seems to be saying this:

      You have a right to own certain types of guns.
      When the militia is called, people bring together the guns they lawfully own.
      It may be the case that a militia armed only with guns that are lawful for private use would be completely ineffective in a modern military setting.
      I don't write the rules, I just interpret them.

      This leaves the door wide open to banning semi-automatic rifles with the capacity to hold large clips, for example.

  •  Interesting that Colorado had a ban on guns (0+ / 0-)

    at the state college campuses overturned, I think in part on the Heller decision.  And the quotes above seem to indicate the state was within its rights to restrict access to certain locations.

    More research is needed.

  •  The bane of originalism (1+ / 0-)
    Recommended by:
    looty

    I just love all of the comments here which want to give a restrictive interpretation to the 2nd Amendment under the cover of the original intent. How is it that original intent in the case of the 2nd Amendment is good when used to restrict guns but not so good when addressing speech and communication under the 1st Amendment or search and seizure under the the 4th Amendment? The long and short of it is that originalism is not good when applied to any amendment. The way through the horns of this dilemma is to amend the constitution to establish a new point of departure.

    If you don't want to be kept in the dark and lathered with horse dung, stop acting like a mushroom.

    by nomorerepukes on Tue Dec 18, 2012 at 01:48:27 PM PST

  •  Useless to attack supply (2+ / 0-)
    Recommended by:
    cany, 88kathy

    There are over 300 million guns in circulation - it is far too late to shut that barn door now. Absolutely high-capacity clips and assault weapons should be banned, but that alone won't reduce the gun violence.

    The government must "incentivize" extreme diligence among those who possess guns. Every gun must be registered, and every gun owner must carry firearm liability insurance. The insurance company will anal-probe their background, their household situation (small kids, people in the house with violent tendencies, etc.). People who have no business with guns will be priced out by the free market, no evil government freedumb-stomping involved. Some of those people will flaunt the law, but at that point, even possession of the firearm will be a crime for which they can be prosecuted.

    Last but not least, mandatory felony charges against the owner of a firearm used in the commission of a crime. Unknowingly lent it to your eccentric work buddy? Thought keeping your gun on top of the refrigerator was "safe enough" that those burglars wouldn't find it? Too bad. When people start going to jail for their gross negligence, others will start paying attention.

    Nothing regulates people's behavior more than having personal skin in the game.

    (-2.38, -3.28) Independent thinker

    by TrueBlueDem on Tue Dec 18, 2012 at 02:08:04 PM PST

    •  But we can limit sales in the future to what (1+ / 0-)
      Recommended by:
      TrueBlueDem

      is believed to be permissible weaponry and ammo, it seems. And we can buy back both we feel aren't... it seems.

      202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

      by cany on Tue Dec 18, 2012 at 02:19:23 PM PST

      [ Parent ]

      •  That helps, especially decades down the road (2+ / 0-)
        Recommended by:
        88kathy, cany

        But instilling a true fear of consequences into gun owners is what will stop guns from changing hands so easily. You bought it, you own it - and everything it does.

        Right now, any idiot can buy a small arsenal and think he's G.I. Joe. He doesn't sweat about how he stores his weapons, because he has no skin in the game if somebody else steals them and uses them. He doesn't have any real financial incentive to limit his arsenal, or maintain safe household conditions (childproofing, etc.) for gun ownership.

        All Americans focus on is punishing criminals after the fact. We need to influence preventative behavior so innocent people stop dying in the first place.

        (-2.38, -3.28) Independent thinker

        by TrueBlueDem on Tue Dec 18, 2012 at 02:58:19 PM PST

        [ Parent ]

    •  I hate to think (2+ / 0-)
      Recommended by:
      88kathy, TrueBlueDem

      that involving the private sector in policing gun ownership would be the way to go about it. But I doubt seriously that there's much appetite for a system of federal exchanges being set up for the purpose of insuring gun owners. Still, there would be a bit of justice in reading the horror stories about folks who say, "The gun insurance folks raised my rates 50% just because I accidentally lost control of my gun for a few minutes. Only two bullets were fired."

    •  Enforce the KEEP part. (1+ / 0-)
      Recommended by:
      TrueBlueDem

      Felony - failure to secure a deadly weapon
      Accessory - any crime committed with a deadly weapon traceable to you
      Intent to murder - possession of a deadly weapon without a serial number.

      Surprise raids on shooting ranges.

      Hey, GOP - Get In, Sit Down, Shut up, & Hang On!

      by 88kathy on Tue Dec 18, 2012 at 03:12:13 PM PST

      [ Parent ]

  •  Sorry Adam (2+ / 0-)
    Recommended by:
    VClib, Debby

    that's an orange gnocco.

  •  We may need to wait for some better supremes. (0+ / 0-)

    As currently (mis)interpreted, the 2nd amendment may not allow for much regulation at all.  Whatever is implemented could quickly be struck down.

    Private health insurance: a protection racket without the protection.

    by rustypatina on Wed Dec 19, 2012 at 12:13:08 PM PST

  •  2nd Amendment was outdated in 1794 (2+ / 0-)
    Recommended by:
    Loge, MPociask

    when Washington used a standing army to surpress the Whiskey Rebellion. In 1791, the concern was that a standing army would destroy liberty and militias were the remedy. By their logic we should disband the DOD and rely on local militias(like Libya?) to repel an English invasion.
    Any intelligent, honest judge would realize that, ignore it as a historical anachronism,  and Congress could regulate guns as it sees fit.

  •  It's rationalization, not reasoning (0+ / 0-)

    The Supreme's have shown that the law isn't about logic as mathematicians would understand it.  The decision will come first and then they'll gen up a rationalization, gathering a bit form this precedent and another from that until they they reach their desired outcome.  That's why the law is so incoherent.


    My country, right or wrong; if right, to be kept right; and if wrong, to be set right.—Carl Schurz
    Give 'em hell, Barry—Me

    by KingBolete on Wed Dec 19, 2012 at 08:14:25 PM PST

  •  Gun Categories (0+ / 0-)

    I can see no reason why laws pertaining to particular categories of guns would be unconstitutional.

    For example, it would certainly seem to me to be constitutional to place all semi-automatic weapons into the same category as automatic weapons, for purposes of gun control.

  •  Clearly a shit ton. (1+ / 0-)
    Recommended by:
    akmk

    And again, the fact we're having THIS debate right now, means we're going to lose again.

    We've got a short period of time to keep people focused on this issue and get the assault weapons ban back in place. Any time wasted on these ongoing philosophical and "constitutional" arguments is just taking our eye off the ball. This can only be an emotional and common sense argument if we want to get a tidal wave of public support in a hurry.

    We all know the right wing argument here is complete and maddeningly hypocritical horse shit- but they win if we waste precious time engaging them in it right now.

    Money doesn't talk it swears.

    by Coss on Wed Dec 19, 2012 at 08:19:46 PM PST

    •  It matters. (2+ / 0-)
      Recommended by:
      OMwordTHRUdaFOG, Adam B

      You can bet your last nickel that Alan Gura is writing briefs and planning filings against a renewed AWB as we write.

      His record is pretty good... In fact, he's probably the best Constitutional litigator in the country right now.

      If you want your favored policies to survive that challenge, you've got to discuss it ahead of time, and figure out where the boundaries are likely to be, so that you can stay inside them. Otherwise, the whole exercise is a waste of time.

      And I say this as someone who is on the opposite side of theis debate from you. If you want to win, you're going to have to have all your legal ducks in a row... because my side does, and it's going to be a huge fight.

      --Shannon

      "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
      "Dissent is patriotic. Blind obedience is treason." --me

      by Leftie Gunner on Wed Dec 19, 2012 at 08:57:47 PM PST

      [ Parent ]

  •  Here's where I think the line gets drawn. (1+ / 0-)
    Recommended by:
    OMwordTHRUdaFOG

    First, the whole "militia" argument we hear in RKBA comments is wholly unfounded.  

    "Well regulated", as in militia, meant "well armed and trained" in the language of the day.  You only need read the Heller opinion for a good understanding of the history of the RKBA.  Link, here:

    http://www.law.cornell.edu/....

    There is a reason that the Founders put a clause in the Constitution that would allow for a well armed citizenry.  Think about that.  Why would they do that?   It's because, in England, the Crown tried to disarm the citizenry so that it could never rise up and the Founders wanted to be sure that could never happen here.  

    Thus, based upon historical precedent, there is a logical reason why the average citizen should be at least as well armed as the average soldier. That's where the Supreme Court will have to make the call if an assault weapons ban passes.   How well armed should the citizenry be before the government has the right to draw the line?   History says at "dangerous and unusual weapons", not what the average grunt carries in combat.  

    Like it or not, I am pretty sure that's where the bright line will have to get drawn.   For the record, I am a gun owner and I wholly support longer waiting periods, full background checks and registration/licensing for any firearm and closing the gun show loophole.

    Intolerance betrays want of faith in one's cause. - Gandhi

    by SpamNunn on Wed Dec 19, 2012 at 08:22:37 PM PST

    •  Ah, but there's wiggle room there (0+ / 0-)

      "At least as well armed as the average soldier." Well, what are some facts about the average soldier?

      The average, well trained, soldier does not blast away at full auto all the time. Automatic fire is used primarily as a way of keeping the enemy's head down. The primary method of shooting all soldiers in professional armies are trained in in single shots (or maybe a 3 round burst, if the weapon can do it). When I was trained, my shooting was evaluated on the basis of my accuracy firing single shots, not on blasting away at full auto.

      And when you get down to it, who are the deadliest individual soldiers on the battlefield? Snipers. Most of whom (at least in the west) use at best semi-auto, but more likely bolt-action, rifles. The majority of which have restricted magazine size of a few rounds, and some only single-shot.

      So if the basis of the argument is that J Random Citizen should have a fighting chance against J Random Infantryman, J Random Citizen is fully capable of meeting that benchmark with a bolt action, or at most, semiauto, rifle with a small-capacity magazine that has equivalent calibres in ammunition to what the soldier is carrying.

      Trying to claim some sort of equivalency test beyond that is stupid because there's factors NOT covered by the 2A that will come into it. All other things being equal, a trained group of soldiers versus an equal-size group of civilians will usually be a Curb Stomp Battle because the soldiers will have the advantage of teamwork, experience, and tactical training. You give me, say, a squad of Marines armed with World War I-era bolt action rifles versus a bunch of yahoo Tactical Teds with their full-auto, tricked out assault rifles with extended magazines and lasers and red-dot sights, I bet on the Marines all the way.

      So there's lots of restrictions that can be put into place regarding the types of weapons available to civilians, including the banning of automatic weapons and large-capacity magazines, that don't infringe on that basic test.

    •  So Heller/Scalia is pure judicial activism (0+ / 0-)

      Citizens bearing guns were intended not for personal self defense but for defense of the nation.
      And instead we have armed lunatics in no militia destroying
      the nation.

      Broccoli!--Justice Antonin Scalia

  •  I'd love to see anyone explaining to Jefferson (0+ / 0-)

    that hiding a tiny wheel lock pistol in his armpit was "bearing arms".

    (And I understand that the author is only presenting the most recent rulings, not making arguments)

    "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 08:24:32 PM PST

  •  Thank you for this. Very useful reference. (0+ / 0-)
  •  Practical Considrations (0+ / 0-)

    Existing background check laws aren't enforced, so why the call for more laws that disadvantage the defenseless?

    Either way, this government has demonstrated no compelling interest in physically protecting individual citizens, especially poor people and working class.

    Most police work is cleaning-up the bodies and chase down the perp to throw in jail. Then they have two brown men down, one in jail and one in prision.

    Police are there keep wealthy lawyers like Adam B safe from scary black and poor people. That's what they're paid to do and that's practically all they're paid to do.

    Too many Americans are wise to the game. The plutocrats bodyguards can break down the doors and search in vain but they won't find what they're looking for.

    The whole decade needs an asterisk.

    by James Kresnik on Wed Dec 19, 2012 at 09:12:14 PM PST

  •  2d Amendment's Scope Is Limited (0+ / 0-)

    under current law and contrary to popular belief, there really is no constitutional impediment to banning or otherwise regulating the ownership, possession, use, sale etc., of firearms.  

    The Supreme Court's ruling, in 2008, Heller, only established a personal right to have a gun under the Second Amendment’s guarantee of a ”right to keep and bear arms,” for the purpose of protecting oneself in one's home.  Since Heller, the Court has several times rejected attempts to extend such right beyond the home.  

    Therefore, because the Supreme Court has not yet addressed the question whether the Second Amendment creates a personal right to “keep and bear arms” that includes a right to have a gun in public, in the name of self-defense, then blanket prohibitions on carrying a gun with semi-automatic to automatic firing features that is loaded and easy to reach  - especially after Newtown - may well be justified and upheld as reasonable.  Such laws are, ostensibly, constitutional under Heller because even if such might prevent a person from defending herself or himself from a threat or perceived threat, the laws are justified on the basis that the public benefit on balance from such a curtailment, i.e., the prevention of thousands of injuries and deaths, clearly outweighs the personal protections afforded by extending the 2d Amendment right.  Given too that there are alternatives regulatorily, eg, by permitting individuals to carry less efficient firearms from a kill perspective, even outright bans on the types of weapons withstand constitutional scrutiny.

    After Newtown, the issue is not whether, but under what conditions, the scope of the constitutional right of armed self-defense should be interpreted as being broader than the right to have a gun for one's protection in one’s home.

  •   make gun sales, not possession, illegal (0+ / 0-)

    We should go way beyond ALL gun sales having background checks; assigning liability to every gun, saddling every owner with that until the gun is terminated by being turned into authorities for destruction. So, sales become risky, as you don’t sell the liability – it sticks with you, making you responsible for letting that gun go. Improperly secured stolen guns retain responsibility.
    We should make EVERY sale of semi-auto guns illegal. This will shut down the churning market. It will immediately reduce the value of every semi-auto in existence to near zero. Since I don’t believe pasty-white young gameBOYS have good links to an underground gun market, they will not be able to find many guns.
    Ammo clips should have limited capacity. Make a free, anonymous exchange, then criminalize the large clips.
    I bet we can identify misfits through their efforts to find theses guns – since they start as misfits within a secure society and try to delve into the hastily created underground. Should be easy pickings for the ATF narks. Heck, I bet criminal gun sellers would turn in (anonymously) most of their encounters with these losers!
    Gun ownership is still legal, but their circulation is ended.

  •  I have a question (1+ / 0-)
    Recommended by:
    Adam B

    All sides seem to agree that restrictions on gun ownership by the mentally ill are ok. I don't have a problem with this.

    Are there already such restrictions, and how are they implemented? Does the average gun seller have a list of names of people who have been hospitalized or otherwise treated for psychiatric issues? How does that square with HIPAA? The average gun seller doesn't have a right to others' private health info, so how is this accomplished? Is it just mentally ill people with a police record?

    I honestly don't understand how this works.

    Years ago, I was hospitalized for severe depression. I don't own a gun and have no desire to own one. I have to say that I'm not excited about gun sellers having that info, and don't see how they can with current medical privacy law. If the choice is between my medical privacy and the lives of 6-year olds (or innocents of any age), I'll go with the safety of innocents over my privacy. I don't want a gun and I'm never going to run for public office, it's a trade I can make if it's required. It still makes me uncomfortable, and I still don't understand how it can be done without violating laws relating to the privacy of medical records.

    I keep hearing this thrown around, this idea of not allowing mentally ill people to have guns, but what does that mean? How is it defined? How is it implemented? Am I missing something obvious?

    •  Adjudicated, not merely treated (0+ / 0-)

      Federal law prohibits anyone who has been “adjudicated as a mental defective,” as well as those who have been involuntarily committed to a mental health facility, from purchasing a gun.

      I absolutely agree that the privacy/liberty concerns here are serious.

      •  thanks (0+ / 0-)

        Hadn't thought about the courts. As that's already a public record, it makes more sense to me. That would actually capture some of the most troubled people (and leave a lot of people out), most of whom are probably not much of a danger to others, but it's not my area of expertise, so I don't know.  Still a sticky issue, but not one I would be willing to fight?

        In general, better access to mental health care (which requires money and political will to fund it) is an absolute good for a humane society. I'm not sure how much impact it would have on the problem of gun violence, don't think it's sufficient, but it couldn't hurt.

  •  This actually sounds pretty promising. (0+ / 0-)

    I'd long since given up on the idea of banning handguns (successful as that has been elsewhere). If we can limit the right to such weapons as are useful in defending one's home, crap like high-capacity magazines can be banned, right?

    Code Monkey like freedom / Code Monkey like peace and justice too
    Code Monkey very nerdy man / With big warm fuzzy bleeding heart
    Code Monkey like you!

    Formerly known as Jyrinx.

    by Code Monkey on Wed Dec 19, 2012 at 10:56:38 PM PST

  •  In the face of drones, robots, (0+ / 0-)

    SAW guns, mini-guns, Apaches, M1, B2, stealth fighters et al, hand guns and assault rifles are virtually useless as defense against an organized military. The most ardent of the gun advocates claim they need it in the end for defense against a government. They would last a week or two as organized units. Maybe months as isolated bands if they had LRP training as I did, but not much more.

    In fact the head of the NRA claimed that the above were needed for just that reason. News flash, it wouldn't work. The logical extension of the NRA position is that we should be able to own drones, nuclear weapons, napalm, and whatever else is necessary. So far even the repugs,have not advocated that.

    If... the machine of government... is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. ~Henry David Thoreau, On the Duty of Civil Disobediance, 1849

    by shigeru on Wed Dec 19, 2012 at 11:00:18 PM PST

    •  Tell this to the Iraqi insurgents, or taliban (0+ / 0-)

      or Syrian or Libyan rebels, or the IRA, or Hamas. Cause I don't think they got the message that they were only supposed to last a week :-)

      "I never heard a corpse ask how it got so cold." - Richard, The Lion in Winter

      by divitius on Fri Dec 21, 2012 at 10:06:56 AM PST

      [ Parent ]

  •  It is useful to understand Heller, because it is (0+ / 0-)

    the law.

    It can be changed, but not easily.  If new law is written by the House, it will have to take Heller into account.

    Re-parsing the words of the 2nd Amendment is not a fruitful exercise, I'm afraid.

  •  AR variants are sold out nationwide (0+ / 0-)

    mission accomplished.

    An assault rifle ban is now in place assuming that you define AWB as the absence of assault rifles available for purchase.

    (though I bet the AR manufactures will be working some serious overtime through the holidays)

  •  Seems to me... (0+ / 0-)

    that the wording of the 2nd Amendment offers Congress a highway to ways to constrain guns.

    "A well regulated militia being necessary to the security of a free state..."

    Congress is the obvious entity with the authority to establish standards for what a well regulated militia looks like. Who may be part of it, what they must do in order to qualify as well regulated--and therefore within the constraints of the initial clause of the amendment, which only then opens out into the right to keep and bear arms.

    Ban?

    No.

    Limits, regulations, etc? Absolutely.

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

    by ogre on Thu Dec 20, 2012 at 01:16:26 AM PST

  •  So we're in the Talmudic debate phase now? (0+ / 0-)

    ... the "how many angels can dance on the head of a pin" digression?  The aesthetic appreciation of the 2nd Amendment Haiku can now proceed?

    Hey, kids, let's all forget that thousands of children die on the wrong end of a gun muzzle every few years here in in the U S of A, while let's all discuss and ponder "Our Founders' Original Intent" for a few months, what's say?

    The 2nd Amendment of the Constitution is an artifact of history -- a momentary lapse in the horizon-seeking wisdom of a few men that gathered at our nation's founding -- a political sop to local/regional/Statewide power brokers at that Founding Moment.

    Its time has passed.  It is now a positive impediment to the security of The People, and a distraction from rational debate, now that it's SCRIPTURE rather than an organizing principle.

    We must repeal it.

    It's time we were no longer required to genuflect at the alter of the gun, here in 21st Century America.

    #RepealThe2nd now.

  •  Who cares? (0+ / 0-)

    Gun control is about as effective as drug control, population control, pollution control and environmental control. It panders to the notion that whatever humans control, run, regulate, permit or otherwise interfere with is, ipso facto, better than the random alternative. The idea of control appeals to human hubris. It is also, in essence, an example of the triumph of form over function, especially when the "control" devolves to data collection and that, in turn, devolves into an obsession. Then we have, for example, a security agency with billions of data bits that it doesn't what to do with, except subject it all to more analysis. Because, if there is so much data, there must be something worth while somewhere. Right?

    Environmental regulation is the paradigm of what not to attemp. The natural environment is naturally random -- i.e. hard to predict. Trying to make it more regular won't make it easier to predict, mainly because, though it might look like it's regular, randomness is still the default.
    Because humans have memory, they have an inbuilt preference for sameness. That makes it easier, as they move from place to place, to find what they remember again. Not to find what one remembers is upsetting. So, our default preference is for stasis, even as we, as mobile creatures, keep moving around. Much conflict arises from these contradictory preferences for ourselves and our environment, including other people. We want people to stay put. Having them belted into vehicles seemed like a good compromise, because, of course, vehicles are easier to control.

    Car culture is a consequence of our obsession with control. That's also why the demise of over 40,000 mostly healthy people in car crashes every year is not a big concern. Dead people are definitely under control.

    We organize governments to deliver services and prevent abuse.

    by hannah on Thu Dec 20, 2012 at 03:28:27 AM PST

    •  it is not an either or choice. All or nothing (0+ / 0-)

      Agreements among people on limits to some behavior or acts or usage for mutual benefits and safety have always existed... and not for some blind love affair with "Control" and power. Of course the original purpose can be hijacked by those who misuse it as an aid to gaining and holding some sort of personal power or benefit... that does not invalidate the concept of mutually agreed limits on behavior... it is as old as "Thou shalt not kill/murder"... and probably far older. But not everything or everyone stays the same and all the other rules and laws and their interpretation and enforcement are only as up to date and reasonable as we and reality make them. All laws and rules, except for the most fundamental rights like in a constitution, need regular adjustment or updating and oversight of the way they are implemented or enforced.

      Regulations, checks and balances are a dynamic thing... looking for the best outcome. Environmental controls have made a huge difference. Where they really fail has little to do with randomness... some things would happen anyway but the real failures are corruption not being held in check and corporate money changing the rules or the enforcement... these flaws do not suggest that we should forget having any rules. Rivers are cleaner air is cleaner in most places or at least not continuing to get worse.. toxins are handled much better than before and many other environmental issues are better with than without.

      Mankind is not attempting to totally end "Randomness"... but the more we understand the more we understand the root causes of many things we previously did not. We can moderate our own actions to not harm the environment to a great degree... that we fall short does not mean hopeless... it is accepting that we can make a big difference even if it is well short of an unattainable ideal.

      Car deaths are unavoidable and yet we have far fewer than if we did not have the improved car designs, speed limits, traffic controls, seat belts etc. In fact deaths from most accidents are part of doing normal things. There are some that were due to carelessness, fatigue, incompetence or ignorance... even walking can lead to death... a trip and hitting a head on a curb can kill. We don't ban walking... or control it beyond having sidewalks and crosswalks... or banning people from walking into power substations or on railway or subway tracks....

      And in the end... those who have lived with too much arbitrary authority over them... or feel that they do dream of more freedom... while those who live in more lawless or anarchic times and places dream of more order and good laws properly enforced... the more or less ideal middle ground in between them is what they are going for but their original incentives make them overshoot and devalue the workable balance between dictatorship and anarchy, nanny state and libertarian free for all... and a slight detour in one direction or the other as needed is seen as an extreme betrayal... and it would be if it was the first step on a slippery slope to an extreme instead of a workable course correction to be followed by another tack angled the other way briefly...

      Gun control can work if it is a workable compromise accepted by most. Drug control works if it is again a reality based one. Decriminalize, take the gangs out of the profit picture, legalize use of the least harmful in small amounts... that is still control just not heavy handed unreasonable control. Banning all guns would never work. Banning all recreational drugs does not work. Finding the balance in agreed controls that does the least harm and retains the most benefit does work.

      Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie (hah...)

      by IreGyre on Thu Dec 20, 2012 at 07:58:26 AM PST

      [ Parent ]

  •  compelling state interest (0+ / 0-)

    My understanding is that the government can regulate the exercise of rights protected by the bill of rights when certain conditions are met.  The state has to have a compelling state interest and the limitation has to be reasonable in scope.  Heller didn't change that.  Anyone who can't make an argument for compelling governmental interest in limiting the right to bear arms in some cases shouldn't be a lawyer.  In fact, it already has been made.  Machine guns, grenade launchers, shoulder fired surface to air missiles, not to mention atom bombs, are restricted.  

    All Heller said as I understand it, was that the District of Columbia, which banned all handguns in the city, overreached.  I doubt if even Scalia would say that a strict licencing procedure for a carry permit is unreasonable.  

  •  Thanks as always Adam (0+ / 0-)

    This was a great first read to start my day.

    48forEastAfrica - Donate to Oxfam this Holiday Season!

    by randallt on Thu Dec 20, 2012 at 06:42:33 AM PST

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