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I write this as I think back to conlaw, and how much I appreciate the professor I had who had us question if it was a good decision not quiz us on the outcome (most hated it).

There are so many diaries pointing out how the second Amendment (as Read) means something else. Unfortunately, that was debated and on that ground alone that viewpoint is extinct.

The right enjoys calling Liberal Justices activists. I do not say that as you are all wrong. I agree with you. The history, grammar, use, etc. all point to an anachronism. BUT, the salient point I want to convey is District of Columbia v. Heller and McDonald v. Chicago make it a moot point. Anything we say about grammar, use, if you found something signed by all the drafters saying we don't mean we want everyone to have a musket. . . it simply does not matter.

Why? The idea of judicial activism irks me. It is supposed to be when Judges "Make Law". But any decision, that is done. What the judges say IS THE LAW. Even when they say "but this only applies to these narrow circumstances". It is the law. That is what Judges do- make law. So All judges are activists. All the cases are the LAW. The Second Amendment is as interpreted by those cases.

There is no means around that. So let's think differently. . .

I am sorry to rain on any parades. I agree with you. See my prior comments. But when a majority decided the prefatory clause about Militia didn't matter. It's over. You can get a new SCOTUS to say otherwise, or an Amendment. I don't see either. Even a new Justice tilting the balance would have trouble doing so because of the concept of "stare decisis" we respect prior law for continuity.

All of the arguments, (including those I have made) were there. They lost. Because the non-activists decided as they did.

Plain Reading:

Three basic competing models were offered to interpret the Second Amendment:[117]

    The first, known as the "states' rights" or "collective rights" model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.

    The second, known as the "sophisticated collective rights model", held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.

    The third, known as the "standard model", was that the Second Amendment recognized the personal right of individuals to keep and bear arms.

Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.[118] These interpretations held that this was a grammar structure that was common during that era[119] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[120

Does this make most sense? Yes.
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens”
But that was Justice Stevens writing for the Dissent.

So it doesn't matter. It doesn't matter that the history shows the need for a militia and the attempts to create:

In Federalist No. 29, Alexander Hamilton suggested that well-regulated refers not only to "organizing", "disciplining", and "training" the militia, but also to "arming" the militia:

    This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress."[48]

    A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[48]

    "If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security...confiding the regulation of the militia to the direction of the national authority...(and) reserving to the states...the authority of training the militia".[48]

That does not matter.
On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

    [E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[101]

This nor the historical look at its use DOES NOT MATTER . . . that history shows what was done with the Amendment further:
The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[104] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[105] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[105] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[105] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.[106] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C. and the White House being burned down in 1814.[103]
It does not matter.

Finding a document laying to rest any ambiguity, would not matter. Pontificating about it does not matter (the 2nd Amendment- I have said pre-Heller for anyone to find me a part of he constitution that provides for an individual's RIGHT to bear arms, no one could- now they can).

Why? Stare Decisis. This was all there, they knew it. But those "Strict Constructionists" MADE LAW.

SCALIA (HELLER)

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.
The Second Amendment now means as they stated.

The right of the people means as Justice Scalia, writing for the majority in Heller, stated:

 

 Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”
What we know as intelligent beings . . . does not matter.

In Heller the majority rejected the view that the term "to bear arms" implies only the military use of arms:

   

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.
Parsing the second amendment does nothing. It was parsed. Many agreed with you. But the Second Amendment now means what Scalia Said.

Irrelevant (unless you do an in depth analysis do not matter):
In Robertson v. Baldwin, 165 U.S. 275 (1897), the Court stated that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment.

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons.

We have HELLER. Throw out reading the Second Amendment. Stevens did. He strictly construed . . . and lost

So let's turn our attention there. It is not a TOTAL dead end.

The second Amendment really does not matter (what it meant, says). Not now not for a long long time. It, or the Supreme law of the land mean:

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

I don't see how it says that BUT THAT IS THE LAW.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.[147][148]

(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

To the extent you are going through Gun Law, that is now the start. Anything else is criticism.

But, they did not take every avenue. As I bolded (as important limitations on what the Second Amendment means, but really what Heller means). Just as they stated the Supreme Law as to Bush (and made him president), this is, but they did say

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons
Those are tools. Those are also "the law", who, where, and the commerce clause.

I am not saying it is unimportant to view the historical context. But the here and now, gives us some scraps. Yes these were pre-(what I hope is an embarrassment that continues to resonate) Tragedy. But it does not change it.

Only utilizing the tools, and seeing the cracks can NOW. And there are. So Let Law School Students write about in the wake of this tragedy how Heller hand-cuffed us, but it still left these conventional prohibitions (which viewed historically were akin to registration, esp re state lines, etc etc).

My friends, start from there (the law now). And don't stop, but do not forget we are not fighting the language or lack of in the 2nd Amendment. That battle is over. We can, however, parse it and the Commerce Clause, not selling to "mentally disabled" leave rather wide doors (as do other parts- but re-arguing Textual interpretation is fruitless). Don't stop either way. It may be of import, but everyone discussing the second amendment should have a sound understanding of Heller and McDonald.  

9:48 AM PT: Thank you for the discussion:

And to clarify, I suppose in going over so much- I agree it is of import. And I suppose I missed a focal point which is that starting at Heller, there remains ways of achieving what is desired. I probably cannot state as I wish but it appears most understand me (text of 2nd amendment is important, except it no longer says what it means, so we need to work from what now is the "Law", that isn't to say as I have numerous comments about the 2nd Amendment History it unimportant).

And thank you Mr. Norton for your observation.

9:53 AM PT: A comment below of import (at least to me as I learned con Law):

My Con-Law professor taught in a way everyone hated. Realism. I've written before about Citizens United Etc.

I'd say his theme throughout was they are 9 men and women. "Why do we Listen"?

The biggest moment being pre new-deal. Where FDR basically said, these are 9 ppl that have no comprehension and are holding me back. Then a Justice Roberts changed his mind on everything and FDR proceeded.

Perhaps we are on the verge of something similar. Yes, always political, but they walk a tight rope to not be transparent, lest we ask this question.

"The Second Amendment Says "

"Why Did you say  __"

or

Those of Citizens United.

I brought this up before at length and better substance in why I thought it possible the ACA would be upheld, in that might be the straw post Citizens.

Perhaps we are reaching another moment where someone on the Court will do some Soul Searching. And of course the erroneous nature of their decisions is of import.

But action is needed, and for the time being they are limited by these decisions.


10:36 AM PT: UPDATE: CHANGED TITLE AS I AGREE ITS DISINGENUOUS TO A ROUTE THAT CERTAIN DECISIONS GO TOO FAR AND SOCIAL FORCES OF THEIR UNDERSTANDING ARE IMPORTANT AND NOT TO IGNORE, BUT WITH SO MANY DIARIES FOCUSING ON THAT, PRACTICALLY TODAY I HOPE SOME TAKE WHAT WE HAVE TODAY AS WELL (YES SOCIAL CHANGE IS OF IMPT TO GO TO FAR, BUT RIGHT NOW SO IS WHAT HELLER LEAVES)  

10:44 AM PT: Wow. First time on the REC List. Thanks everyone. And this diary turned out how I hoped which is different viewpoints I'd say connected educating each other.

Originally posted to ClevelandAttorney on Wed Dec 26, 2012 at 08:55 AM PST.

Also republished by Firearms Law and Policy.

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Comment Preferences

  •  er, (20+ / 0-)

    the supreme court is a political institution, and always has been. There is nothing inappropriate about criticizing supreme court decisions, and suggesting that judges appointed by better presidents would have made different decisions.

    because, as many of us said this year about the election, "It's the supreme court, stupid."

    We need to make sure it is understood that there are multiple interpretations of that poorly-written amendment, so that when seats are open, our politicians make the correct political decision and appoint judges that are more likely to share our view.

    I'm sure the legal set here bristles at the idea that judges are entirely political animals, but they always have been. Conservatives understand that. Liberals need to learn it.

    •  Citizens United makes campaign finance reform (6+ / 0-)

      debates pointless.  B v. G makes posts about the 2000 election theft pointless.  Before this term is over, Voting Rights Act debates will likely become pointless.

      We have 5 Supremes who are ready, willing, and able to enter blatantly political decisions.  While there's not much that can be done upon them (at least for the time being), I'm not ready to concede their finality.  Hell, "separate but equal" was established law for >50 years.

      Some men see things as they are and ask why. I dream of things that never were and ask why not?

      by RFK Lives on Wed Dec 26, 2012 at 09:38:35 AM PST

      [ Parent ]

      •  That is actually an interesting forward idea (5+ / 0-)
        Recommended by:
        a2nite, DaNang65, agent, RFK Lives, CroneWit

        My Con-Law professor taught in a way everyone hated. Realism. I've written before about Citizens United Etc.

        I'd say his theme throughout was they are 9 men and women. "Why do we Listen"?

        The biggest moment being pre new-deal. Where FDR basically said, these are 9 ppl that have no comprehension and are holding me back. Then a Justice Roberts changed his mind on everything and FDR proceeded.

        Perhaps we are on the verge of something similar. Yes, always political, but they walk a tight rope to not be transparent, lest we ask this question.

        "The Second Amendment Says ____"

        "Why Did you say  ________"

        or

        Those of Citizens United.

        I brought this up before at length and better substance in why I thought it possible the ACA would be upheld, in that might be the straw post Citizens.

        Perhaps we are reaching another moment where someone on the Court will do some Soul Searching. And of course the erroneous nature of their decisions is of import.

        But action is needed, and for the time being they are limited by these decisions.

      •  Plessy v. Ferguson made discussion of slavery moot (6+ / 0-)

        Oh, wait.  No, it didn't.  Because what one court decided, another court (some sixty years later) tossed out the window.

        While I disagree that Heller is the last word on guns and gun control--it's merely the most recent word--I do share with the diarist the frustration with the endless debate over what the 2nd Amendment "means."  As the diarist contends, the law means whatever the court--at this moment in time--says it means.  

        And I agree, we should not allow endless discussion over what the 2nd Amendment means prevent us from moving forward.  We already have lots of restrictions on our Constitutional rights.  We restrict speech (try yelling fire in a crowded movie theater), we restrict the press (not going to give up the name of your source?  Spend some time in jail), we restrict religion (no nativity scene in the public square).  

        The right to bear arms, as the law is interpreted today to mean an individual's right to own a gun, should be restricted, too.
         

        http://donotgetsickinthesinkplease.wordpress.com/

        by kayebee on Wed Dec 26, 2012 at 10:28:03 AM PST

        [ Parent ]

        •  When I am arguing here about the meaning... (1+ / 0-)
          Recommended by:
          CroneWit

          ...of the Second Amendment, I am arguing among mostly like-minded individuals in an attempt to sharpen my thoughts - and their thoughts - on the matter.  Because there is a better than even chance that one or another of us will be in an argument on this subject with a pro-gun individual at some point in the near future.

          So it isn't a waste of time.  Because I know the SCOTUS is a political entity that can be affected by the larger politics of an era.  Because I know that public argument, that calling out the RW on their most cherished beliefs, is a necessity.

          Not trying to pick a fight or anything, but discourse always sharpens the mind.

          Tell me what to write. tellmewhattowrite.com 'To know what is right and to do it are two different things.' - Chushingura, a tale of The Forty-Seven Ronin

          by rbird on Wed Dec 26, 2012 at 12:48:38 PM PST

          [ Parent ]

      •  Nope, the justices included a special clause (2+ / 0-)
        Recommended by:
        Navy Vet Terp, CroneWit

        in Bush v Gore--that one case, of all the cases SCOTUS has ever heard, does not contribute to precedent.

        Otherwise, agree with you.

        A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

        by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:18:35 AM PST

        [ Parent ]

    •  Plessy v. Ferguson was the law of the land (8+ / 0-)

      from 1896 until the Brown decision overturned it in 1954.  

      I agree with you that the court is a political institution. However, a bad decision can last a long, long time in precedent, and can be hard to undo in practice.

      •  I think the diarist's point was that (8+ / 0-)

        it may be wasting fingers to tell everyone not on the SCOTUS or heavily involved in it, what the 2nd REALLY means.

        The Mayans knew about Chained CPI!!!!

        by GoGoGoEverton on Wed Dec 26, 2012 at 09:59:32 AM PST

        [ Parent ]

      •  Completely agree (2+ / 0-)
        Recommended by:
        mahakali overdrive, CroneWit

        I moresaw saw people looking at the text. Without realizing yes I agree as do many (probably it might not have resulted in Heller today due to events since), but for action NOW (Feinstein for example) or creative thinking we are left with needing to go through the "Law" until changed.

        Just as Plessy is one of the worst Decisions (by historians, the worst being Lochner, I think Bush someday and Citizens will be up there) Plessy was the law and it's hard to get around Stare Decisis. But it seems that there are parts even of Heller that leave a lot of room.

        How do we know you aren't mentally ill? How extensive can we make finding out?  Or how extensive background checks, or other aspects of not just the dicta but holding. Ie self defense is of import. Ok so is the right limited by "self-Defense". Won't it get circular to need an assault weapon to defend, just because assault weapons are out there?

        How far will the Commerce Clause (still arguably without a limiting principle even post ACA reach?), as any part of a gun goes through interstate commerce.

        •  Dred Scott? (1+ / 0-)
          Recommended by:
          poco

          A serious case can be made for that one...

          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 Wed Dec 26, 2012 at 10:30:09 AM PST

          [ Parent ]

          •  Wow, awesome. You know, the Supreme Court (0+ / 0-)

            makes decisions that should be set in stone forever, so I guess all you black folks have to renounce your citizenship now. You're not protected by the Constitution.

            A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

            by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:20:01 AM PST

            [ Parent ]

    •  Heller is just a political decision. (6+ / 0-)

      It would be crazy for us to roll over and accept it. It went against 200 years of precedent, and hopefully future courts will overturn it.

      The amendment itself is archaic and unnecessary and needs to be repealed. It was a political compromise at the time, used to bring enough states on board to ratify the Constitution. That need is obviously no longer in effect.

      Some might call it an 18th century necessary evil, as they might slavery. Others might say that neither compromise was ever justified.

      My take? They weren't. We would have been better off making a good union, a just union, a union based truly on morality and equality, rather than a hopelessly compromised and poisoned one.

      It has also caused the deaths of millions of Americans over the years. Yes, millions. We lose more than 30,000 Americans to guns each year.

      Time to repeal it. Prior to that, we need to overturn Heller. As if conservatives won't try to overturn Roe V Wade if they get the numbers.

  •  Thanks. You could've ended this post with the (19+ / 0-)

    title. Like you I don't think Heller was rightly decided but that is beside the point. It is the law of the land barring a constitutional amendment or a Supreme Court decision which reverses it. And lest there be any doubt, there will be no no reversal coming soon.

    The battle lines at this point aren't on whether there is an individual right, but rather what reasonable restrictions on that right will be upheld. Skalia made clear that he did not think that the Heller decision in any way prohibited the Congress from imposing restrictions on gun ownership. It remains to be seen how far he is willing to let those restrictions go.

    Further, affiant sayeth not.

    by Gary Norton on Wed Dec 26, 2012 at 09:05:15 AM PST

    •  obama will probably appt. another justice. (5+ / 0-)
      It is the law of the land barring a constitutional amendment or a Supreme Court decision which reverses it.
      Heller, et al may then be reversed, as so many other cases have been, by subsequent courts. judges are political beasts, always have been, and i don't believe democrats have been, as a group, any more unaware of that than republicans have. it's why we aren't mourning the recent passing of the late, justice bork.
      •  He'll NOMINATE Another Justice nt (5+ / 0-)

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Wed Dec 26, 2012 at 10:01:01 AM PST

        [ Parent ]

      •  I hope he gets another appointment or (1+ / 0-)
        Recommended by:
        CroneWit

        two, but if he is merely replacing those in the minority in Heller that will not change anything.

        Also, like it or not, the principle is started decisis is an important one and I suspect that any Supreme Court will be loath to reverse Heller, notwithstanding how they feel about it, so soon after it is decided. On a personal level, I wish they would. But as a matter of the stability of Supreme Court jurisprudence, it would be troubling.

        For good or ill, and often it is for ill, the principal keeps the Supreme Court from being just another legislative body. If Supreme Court decisions change with elections or based solely on the membership on the court we lose any semblance of stability. How it generally works is that as time passes a decision that falls into disfavor is slowly whittled away until it is finally reversed. Rarely is it reversed en toto right away, but there are exceptions.

        The principal has caused us to have to live sometimes for far too long with bad decisions, such as Plessy v Ferguson, but has also had good results such as keeping Roe Wade the law of the land even though arguably there are five justices who have some: problems with it.

        Further, affiant sayeth not.

        by Gary Norton on Wed Dec 26, 2012 at 10:46:28 AM PST

        [ Parent ]

      •  Wow, you really believe that Obama (0+ / 0-)

        will appoint a liberal justice?

        Well, maybe on this issue.

        A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

        by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:20:52 AM PST

        [ Parent ]

    •  Unlike you (13+ / 0-)

      I agree with Heller. Scalia and I couldn't be put in a room together without only one of us coming out (probably not me, I'm a thinker not a fighter) but still I agree w/Heller.

      This diary is needed, we waste our time pulling apart all the individual words in the amendment. If people are serious about doing a good job on reasonable gun restrictions, start with accepting what is decided law and involve gun owners in teh decision.

      I've said it before, but here goes again. A smart, thoughtful, well written law is more likely to be followed than one thrown out there in a fit of emotion and it will reality based.

      We also need to expend some energy on what is happening in our country that causes these extreme acts. I don't pretend to know, but we have a hole in our collective soul and it isn't the fact that someone owns a gun.

      "The scientific nature of the ordinary man is to go on out and do the best you can." John Prine

      by high uintas on Wed Dec 26, 2012 at 09:47:24 AM PST

      [ Parent ]

      •  Involving gun owners in the decision (0+ / 0-)

        means nothing gets done. Alas, that's what's going to happen anyway, because, after all, a few dead children means nothing next to owning a fucking gun.

        •  So (5+ / 0-)

          If you want to make a law that involves.....women, gays, horse owners, Quakers....anyone who is involved and has an interest....do not involve them in the writing of the law. Right?

          There's a recipe for success!

          "The scientific nature of the ordinary man is to go on out and do the best you can." John Prine

          by high uintas on Wed Dec 26, 2012 at 10:17:14 AM PST

          [ Parent ]

        •  About 100 million gun owners are not in the NRA (7+ / 0-)

          Abusing hunters and jewelry couriers won't help get new laws passed.

          •  Effective politics is building coalitions (4+ / 0-)

            Rep. Moran, D-Va. has put together a bill that reforms gun law in ways that an overwhelming majority of NRA members approve of. http://oldtownalexandria.patch.com/....

            It would not have prevented Newtown, of course, nothing practical would have. It might have prevented Webster. It would force many problematic people onto the black market.

            Involve gun owners, and maybe it will help them realize that you don't want to kick down their door and confiscate their grandfather's 30-06. Assuming of course that you don't.

            •  No, outlawing semi automatics wouldn't have (0+ / 0-)

              prevented Newtown. Of course not. You gun nuts will have no shame or conscience.

              •  what, cuz 1994's AWB was so totally effective? (0+ / 0-)

                http://www.policymic.com/...

                Federal government studies show that the AWB had a minimal effect on crime, and that reinstating it would continue to have a only minimal effect on crime. In addition studies have shown that the types of weapons banned would only account for 1% to 6% of all crimes involving firearms.

                Let us not forget that mass shooting at Columbine High School occurred while the AWB was in full effect. It's also worth noting that the perpetrators also had almost 100 homemade bombs. In addition, the worst school shooting in history occurred at Virginia Tech, where the shooter did not even use firearms covered under the AWB.

                http://www.motherjones.com/...
                The assault weapons ban proved of little value where it counted most: on the street.

                ...it defined assault weapons in a manner that would allow gun manufacturers to skirt the ban without much trouble. It exempted 650 firearms and grandfathered in weapons and ammo clips produced or purchased before the enactment of the ban.

                ...The AR-15 semiautomatic rifle reportedly used by Adam Lanza in the Newtown shootings was the sort of weapon gun control advocates had hoped to prohibit with the 1994 ban. Yet even though the state of Connecticut passed its own assault weapons ban...this particular gun was legal in the state

                oh wait...it was effective at one thing, though:
                the weak ban that emerged might not have been worth the cost...the Republicans...romped the Democrats in the midterm election, gaining 54 seats and control of the House for the first time in 40 years. Clinton, for one, believed that voting for the the assault weapons ban had cost about 20 House Democrats their seats

                Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

                by Cedwyn on Thu Dec 27, 2012 at 07:42:42 AM PST

                [ Parent ]

      •  Thank you- in a room we'd probably greatly agree (2+ / 0-)
        Recommended by:
        high uintas, mahakali overdrive

        I can't say I "disdain" heller. I truly have not studied it enough. The diaries just got to the point that we are not going to act on "but the second amendment says".

        Perhaps if you discussed Lujan you could make it out together. That was the only time I appreciated Scalia (ie generally you use Precedent to well help, there he basically wrote the most condescending opinion ever and I have to admit I kinda found his cites humorous).

        I suppose I am saying in part, wrong or right (Heller), there's two ways (mainly) 1. to wring your hand about the second Amendment (and then realize your interpretation was already dismissed right or wrong);

        or start from the latter and either attack it like Citizens United (not what I am saying, but as I say about if these decisions get as transparent as the 30's who knows) or preferably first understand Hamilton yes said x, Washington used as y, but in 2008 a decision was made, and 5 years later won't be reversed, understand what it allows and recalibrate (ie laws not at odds, or attack like citizens).

      •  this, 1,000 times (2+ / 0-)
        Recommended by:
        high uintas, CroneWit
        A smart, thoughtful, well written law is more likely to be followed than one thrown out there in a fit of emotion and it will reality based.
        and basically, unless the proposal would actually prevent gun violence, it's really kinda not worth the fight that is bound to ensue.  for example:  why go to the mat to enact stricter storage requirements when violations of that law would only be discovered after something happened, like with sandy hook?  

        saying that all firearms must be sold through licensed dealers is all well and good until we come face to face with the reality of the black market.  beyond the exception of private sales -- and i'm not sure it'd be right to tell people they have to get screwed on price by selling only to a licensed dealer -- this is pretty much the law already.  and again, violations could only be sussed after the fact, so what would this really prevent?  

        and yet we see people left and right around here saying that we should just replicate australia's policy, like it'd be a cakewalk.

        Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

        by Cedwyn on Wed Dec 26, 2012 at 11:56:21 AM PST

        [ Parent ]

    •  I was waiting for someone to say that (2+ / 0-)
      Recommended by:
      Gary Norton, CroneWit

      Not only are regulations possible under Heller, it will take so long for challenges to those regulations to bubble up to the Supreme Court that we may have different Justices by then. The decision is open-ended enough that it won't get settled in lower courts.

      Heller would prevent an outright ban, but gun owners are constantly reassured that nobody is talking about that.

    •  Exactly, GN. How many guns, for instance, (0+ / 0-)

      constitute the ability of one to defend oneself? One? Ten? One hundred?

      Is it reasonable to assume I need 10 Bushmasters with multiple drums/extended capacity, each of extended capacity to "defend myself"?

      Right now, it would appear the gunnies seem to believe that almost any weapon in almost any number with almost any nifty add ons and should be legal.

      From my seat, it looks like it is going to take YEARS to ferret this all out in the courts and in that time, justices will come and go. And maybe--just maybe--both Citizens and Heller will get a whipping from a new court.

      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 Wed Dec 26, 2012 at 06:16:11 PM PST

      [ Parent ]

  •  In reaction to your headline: No it didn't (9+ / 0-)

    the Supreme Court is an inherently political institution and its decisions get changed from time to time based on the politics of the nation.

    Parsing and coming to a modern American understanding of the 2nd Amendment WILL guide and direct the Courts understanding of it eventually as well.

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

    by Andrew C White on Wed Dec 26, 2012 at 09:11:29 AM PST

  •  Well (8+ / 0-)

    As long as the Right will argue about Roe v Wade, Griswold v Connecticut, and other landmark decisions in favor of a liberal perspective I'm sure the Left will argue about Citizens United, DC v Heller, and other decisions in favor of a conservative perspective.  Its part of the political landscape we live in, and the court is a political body.  From a purely legal standpoint, you are correct that it is pointless to parse the 2nd amendment due to Heller and McDonald, but from a political one it is natural...

    Hey you, dont tell me theres no hope at all Together we stand, divided we fall.

    by marcvstraianvs on Wed Dec 26, 2012 at 09:12:03 AM PST

  •  Agree (6+ / 0-)
    Recommended by:
    Smoh, exterris, Bob Friend, wader, Araguato, Miggles

    our efforts would be much better spent on attempting to destroy the NRA by any means at our disposal. Apart from anything else 2nd amendment discussions just play into the gun nuts hands. They are happy to have those all day.

  •  No, no, no. You have it all wrong (1+ / 0-)
    Recommended by:
    ClevelandAttorney

    A strict interpretation means you have the right to keep from having your arms amputated. That is the most strictly parsed interpretation I can come up with. Forget the rest of the words in the Second Amendment or the documented thinking of the Founding Fathers leading up to putting it into the Bill of Rights.

    See, I can be insane, too!

    There has never been a protracted war from which a country has benefited. The supreme art of war is to subdue the enemy without fighting. - Sun Tzu

    by OHeyeO on Wed Dec 26, 2012 at 09:32:33 AM PST

  •  "the Second Amendment now means what Scalia said" (11+ / 0-)

    That only happened after decades of Federalist Society banquets squealing for "originalist" readings of the Constitution and assholes like Robert Bork being moving the Overton Window by being nominated for the Supreme Court, etc., etc., etc.

    In other words, Heller happened after all of the politicking that it possible to happen.

    How smart lawyers like you can be so utter blind to the politics of the law makes no sense to me. The law is a human-created structure which is subject to social formation and change just like every other human construct. Why would you feel it necessary to dismiss those who are willing to do the politics to change the law?

    •  Law is pure, you see (1+ / 0-)
      Recommended by:
      chrississippi

      Precedent matters above all!

      I mean, Pace v. Alabama was never overturned, or . . . oh, whoops.

      The point of fighting for better regulation is obvious - even Heller allows for that.  However, knowing more about how poorly Heller was decided by the typical 5-4 Supreme voting pattern can only help future fights to bring the future 2nd Amendment issues back up to the Supreme Court level . . . after some right-wing, corporatist hacks have left its bench.

      "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

      by wader on Wed Dec 26, 2012 at 09:44:06 AM PST

      [ Parent ]

      •  it's funny how these arguments only started (0+ / 0-)

        coming up after the Right started taking over the judiciary.

        A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

        by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:22:47 AM PST

        [ Parent ]

        •  I've had a problem with Heller (0+ / 0-)

          from Day 1.

          "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

          by wader on Wed Dec 26, 2012 at 11:32:41 AM PST

          [ Parent ]

          •  yeah, well within the time frame (1+ / 0-)
            Recommended by:
            wader

            I'm talking about--the Right started taking over the judiciary, IMO, in the eighties.  And at the same time, ideas that the law is set in stone started being advanced, beginning with the notion that the Constitution is set in stone.

            A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

            by SouthernLiberalinMD on Wed Dec 26, 2012 at 12:07:38 PM PST

            [ Parent ]

            •  It's a "living" Constitution, to me (1+ / 0-)
              Recommended by:
              SouthernLiberalinMD

              But, I still found Heller to be based on a highly dubious display of conservative wish-lists, especially from Scalia.

              And, I've always supported personal gun ownership, but in a highly regulated and well-understood manner for certain weapons - from the supply chain down to the consumer.  To me, the 2nd Amendment never addressed that point, but it was left open for future history to mold and form.

              "So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way."

              by wader on Wed Dec 26, 2012 at 06:03:00 PM PST

              [ Parent ]

    •  living constitution (3+ / 0-)
      Recommended by:
      chrississippi, a2nite, CroneWit

      this is where we are, today. but things change. demographics are changing. i believe change will come more quickly than some realize, but not quickly enough. meanwhile, this diary provides a path for the interim.

      The cold passion for truth hunts in no pack. -Robinson Jeffers

      by Laurence Lewis on Wed Dec 26, 2012 at 09:47:44 AM PST

      [ Parent ]

    •  Oh I completely understand your point Chrissi (2+ / 0-)
      Recommended by:
      chrississippi, CroneWit

      and in other comments discuss how the Supreme Court has a tough game.

      When they go too far (perhaps here, CU) that is of great import (the switch in time to save the nine). But, so much is concentrated on what is meant by "Militia" for the time being I do not at all dismiss and quote things I agree with.

      I am speaking as what you can do now. Can you say you can't have a gun because you're no Milita? No. But if you look at Heller, right now you could end up with good legislation as it leaves room.

      While others do now to Heller, what is done to the Citizens United Decision (which is the other half and even Scalia is aware, I am convinced that is why the ACA was not struck down ie so there was not so much transparent political motivation and it's important to not let them hide that ball).

      I hoped in fact I was giving good information about the 2nd Amendment.

      While saying but don't forget "Militia" (in my opinion was totally ignored, and for the time being we have to go through Heller which seems to leave a lot of room).

  •  stare decisis (1+ / 0-)
    Recommended by:
    playtonjr

    would be better served by over-turning these ridiculous decisions, which ignore decades, if not centuries of precedent.

    I really question those who support these wingnut decisions and claim to be progressives. Not the diarist, others.

    This Rover crossed over.. Willie Nelson, written by Dorothy Fields

    by Karl Rover on Wed Dec 26, 2012 at 09:37:01 AM PST

  •  'Kay, accepting your argument means (2+ / 0-)
    Recommended by:
    Pescadero Bill, HappyinNM

    (I think)

    that still possible are laws requiring registration of all guns and their owners, and;

    identifying certain types, classes, designs, magazine sizes, firing-mechanism classifications, caliber, etc., that might fall into the category of danergous and unusual weapons not normally intended to be used in the historical and lawful activities such as self-defense (home and person) and hunting. Which could lead to:

    permissible banning of these identified "dangerous and unusual" weapons, including requiring them to be turned in, re-purchased, dismantled or rendered unfireable, and;

    establishing penalties for failure to comply with the ban.

    Have I got that right? Much appears to depend (according to your reading) on how far Scalia will walk through the doorway he created, no?

    And as corrollary questions:

    Is there a legitimate "historical and lawful" activity of blasting away with large caliber, rapid-firing guns at inanimate objects on a fine Sunday afternoon?

    Is there also, within the scope of the present legal framework on this issue,  a legitimate "historical and lawful" activity that covers the stockpiling of weapons and ammunition just in case there's ever a need to repell the advances of a lawfully constituted police force or federalized National Guard or regular military operating under lawful orders within the US? Do Heller and McDonald offer any hints about this?

    Araguato

  •  While I can't help but agree with the overall (2+ / 0-)
    Recommended by:
    Laurence Lewis, Andrew C White

    tenor of the diary somehow Mr. Dooley keeps whispering in my other ear.

    On the issue of whether or not Constitutional rights applied in the newly acquired Phillipines, popularly framed as "Does the Constitution follow the flag?", Mr. Dooley opined

    I don't know whether or not the Constitution follows the flag, but the Supreme Court follows the elections.
    It was true a century ago and it's true today.

    'Nuff said?

    Guns don't kill people. People kill people. Monkeys kill people too, if they have guns.

    by DaNang65 on Wed Dec 26, 2012 at 09:44:15 AM PST

  •  Your central point is clearl Stare Decisis (6+ / 0-)

    However... Scalia... from conservapedia:

    Justice Antonin Scalia explained the conservative view of stare decisis in a concurring and dissenting opinion joined by Justices Anthony Kennedy and Clarence Thomas in 2007:[1]

    "Stare decisis is not an inexorable command" or "a mechanical formula of adherence to the latest decision." [2] It is instead "a principle of policy," [3] and this Court has a "considered practice" not to apply that principle of policy "as rigidly in constitutional as in nonconstitutional cases." [4] This Court has not hesitated to overrule decisions offensive to the First Amendment (a "fixed star in our constitutional constellation," if there is one,[5] -- and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School Dist. v. Gobitis, [6], the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.

    And Scalia on Thomas' view of stare decisis from a 2004 WaPo article:
    But Scalia's pointed comments to Foskett complicate Bush's support for Thomas considerably. Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."
    And Roberts in Citizens United:
    "... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." (slip op., pp. 7-8).
    And:
    "To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

    Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."

    This is not a court that allows stare decisis to get in its way when it wants to make or re-make law as it did in Citizens United.

    The people reinterpreting the 2nd Amendment in a modern, post-Newtown, post-Heller, post-McDonald, world WILL direct the Supreme Court in future 2nd Amendment cases and if that means Heller and McDonald get dumped then they'll get dumped like Lochner.

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

    by Andrew C White on Wed Dec 26, 2012 at 09:50:26 AM PST

    •  Yes (1+ / 0-)
      Recommended by:
      Dave in Northridge

      And I suppose implicitly would Heller possibly be decided the way it was today.

      But I suppose you mean that if presented with something, even a liberal Court would be in a tough position.

      IIRC when Republicans ran about changing the justices to overturn Roe, they didn't like it. They knew that their "tight rope" would get snapped if people saw that one party takes power, the Supreme Court suddenly changes their mind.

      So yes it is of import textually, historically, but for the here and now, we should all understand how Heller changed what we plainly read in the Second Amendment (again the "non Judicial Activists" completely saying, eh I am not gonna count that part, but again I do imply every Holding and Even Supreme Court Dicta is law so "Activism" in my opinion is a worthless term, as they are all imparting law - that is the job of the judge. It just so happens here (and in the Establishment Clause) they have no clothes.

      •  The courts job is to interpret the law (4+ / 0-)
        Recommended by:
        ewmorr, Sychotic1, CroneWit, Tailfish

        not create it. That job belongs to the legislature. When the court creates law out of thin air it becomes subject to great and rightful criticism... and subsequent overturning of decisions.

        Interpretation of the law however, grants the court great leeway in defining just what the legislature meant. The same is true for Presidential signing statements and other instructions to executive branch administrators for carrying out the law passed by Congress.

        All that said, I think Heller leaves all sorts of room for reasonable regulation of weaponry. I also don't have a personal problem with a recognition of a personal, individual right to keep and bear arms.

        I continue however object strongly and vociforously to the idea that debating and parsing the 2nd Amendment is pointless. Quite the opposite. Unlike the dead constitutionalists I believe the text should be debated and parsed in a modern context on a regular and consistent basis... and amended as needed to fit that modern context when the original wording no longer fits... something that can only be determined by parsing the words as they stand today. Stare decisis should be an important guideline in both the law and the politics but it is a critical guideline only and not an absolute. On that I actually agree with the three conservative justices I quoted above.

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

        by Andrew C White on Wed Dec 26, 2012 at 10:13:27 AM PST

        [ Parent ]

        •  I don't entirely disagree (1+ / 0-)
          Recommended by:
          Tailfish

          Except, that every decision is creating law.

          In theory the legislature would foresee complications and draft laws thousands of pages covering everything.

          They cannot.

          Are the street light enforcement cameras in OH constitutional? Was not clear and the argument they were not was correct. The "Court interpreted the law" and now those arguing about it will refer to the Supreme Court of Ohio as the "Law". Not the Legislation alone.

          When the SCOTUS or any court (because of Stare Decisis) interprets anything and puts pen to paper, they create law. Whether it is expected, or out of bounds- it will be cited and is always "activism". They supposedly provide clarity, but lawyers as per the English System utilize it to further arguments in their case as it is the Law (the Decision) as much as the text.

          I do not at all disagree tho with focus on the 2nd Amendment. Again, I took many quotes from former posts, but I am concerned with right now.

          We cannot say the 2nd Amendment says Militias even if 99% of people thought that. Because Heller says otherwise. Now that would put the Court in a precarious position (why do we care about Heller we all disagree).

          And the internet, I agree, as well as these decisions (CU) may create an interesting backlash themselves such that it is relevant and more understanding of the 2nd Amendment Foundationally is of great import to attack like CU.

          But right now. We cannot say you're no Militia, why do you have a gun. I care right now and in the future, both are of import, perhaps I should have clarified about the consequences of parsing (one is more of a social narrative/force (Citizens United Reaction, 2nd Amendment), I am focusing on let's know that "Militia" etc has been defined FOR NOW. And leaves room for action/law.

          •  The difference between the words create and (0+ / 0-)

            interpret is of critical importance and I cannot agree that the courts constitutionally create law. They do so on occasion and on every occasion that they do so they are wrong to do so. The court interprets the law. Contained in that power of interpretation is great leeway to define what the law actually means... a well crafted piece of legislation limits their ability to do so... a vaguely crafted piece of legislation enhances their ability to do so... but the word "create" is the wrong word to apply even if effectively it seems the correct word. When the court creates law it is automatically wrong to have done so even if their interpreation was a good one. To concede the power of creation to the court is too disruptive to the form of the constitution.

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

            by Andrew C White on Wed Dec 26, 2012 at 10:40:03 AM PST

            [ Parent ]

          •  "Activist" judges (1+ / 0-)
            Recommended by:
            CroneWit

            Are only at the lower level, doncha know. The Supremes.. are well, faultless gods ensconced in pure white alabaster and gold leaf.

            Quis custodiet ipsos custodes?

            They are mortals, with mortal faults and mortal biases. For the life of me I cannot think of a method which would prevent a person with position of lifetime appointment from acting on whatever they choose to.

            While there is an impeachment process, it requires that the House agree with the result of a Senate trial. That ain't gonna happen.

            I tremble for my country when I reflect that God is just and that his justice cannot sleep forever. - Thomas Jefferson

            by MightyMoose on Wed Dec 26, 2012 at 12:42:54 PM PST

            [ Parent ]

    •  Now we're getting somewhere (1+ / 0-)
      Recommended by:
      Andrew C White

      We follow certain principles of law when it gets us the results we want. We stop following those principles when they obstruct the results we want. We rely on the media noise machine to obscure this hypocrisy and manipulate American law to be whatever we damn well please.

      A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

      by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:24:23 AM PST

      [ Parent ]

  •  Heller is not as broad as some claim, and (1+ / 0-)
    Recommended by:
    Andrew C White

    others fear.  It still leaves room for a fair amount of regulation, and even prohibition of certain types of firearms.

    And all you need is one vote to switch to reverse Heller.  Which could happen in the next four years.

    Let all the Bush tax cuts expire

    by Paleo on Wed Dec 26, 2012 at 09:56:43 AM PST

  •  Good Summary But The Nagging Fact Remains (3+ / 0-)
    Recommended by:
    Robobagpiper, Gooserock, annieli

    The 2nd Amendment is in the "Bill of Rights" with all those other personal liberties.

    There’s always free cheddar in a mousetrap, baby

    by bernardpliers on Wed Dec 26, 2012 at 09:57:56 AM PST

  •  1792 The Government Ordered Citizens To Buy Guns? (0+ / 0-)

    Also notice that the federal government ordered citizen to buy guns

    On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:.......every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, ......
    Notice that the choice of calibers was not standard - rifles were hand made an calibers were only approximations

    There’s always free cheddar in a mousetrap, baby

    by bernardpliers on Wed Dec 26, 2012 at 10:01:07 AM PST

  •  The Supreme Court is a political body (5+ / 0-)

    just like the the other two in our system. Different in form, but no less different in purpose. It exists to resolve political questions just as much as the other two branches do it by public persuasion (in the case of the president) or by force of statute (in the case of Congress).

    Therefore, it is perfectly well and fitting to have the political goal of constructing a court that will curb the second amendment to make it comport with a proper understanding of its place in a modern society. It is fitting and good to do so.

    Defining what the second amendment means is not a legal question. It is a political one and rightly so.

  •  words like "extinct" and "does not matter"... (2+ / 0-)
    Recommended by:
    Dr Erich Bloodaxe RN, CroneWit

    ...seem to be inappropriately final. Afterall, interpretation by courts - as well as legislation - can and do change.

    Cheers.

  •  A good diary, however (0+ / 0-)

    you have only convinced me that Law is a huge circle jerk with no basis in reality. No wonder so many lawyers become politicians.

    Listen to Netroots Radio or to our pods on Stitcher. "We are but temporary visitors on this planet. The microbes own this place" <- Me

    by yuriwho on Wed Dec 26, 2012 at 10:13:11 AM PST

  •  Can't decisions be overturned at a later date? (1+ / 0-)
    Recommended by:
    Miggles

    Or do we seriously need to work on getting a new amendment to completely start anew as a nation that won't continue to be the first world equivalent of Somalia?

    •  It needs to be just the right type of case to (0+ / 0-)

      cause a previous decision to be overturned in a sweeping manner.  Look at all the talk on how Ted Olson and David Boies aiming their arguments about Prop 8 to hit at Justice Kennedy's sweet spot, so to speak.

  •  I believe the popular understanding of the second (1+ / 0-)
    Recommended by:
    CroneWit

    Amendment and its current basis for defending unrestricted, unlimited military weapon sales to an unaware and at risk population is derived from fiddling with an extinct relic.

    The second Amendment that had failed in essence as a clumsy, ill thought out check on the centralization  and flow of power to a powerful Federal government's own better equipped and permanent Army.

    Weapons, guns, and cartridge weapons after the obsolescence of flintlocks were ubiquitous  in the colonies and new America.  In 1509, the Spaniards brought cannon gunpowder handguns, and horses to  the Americas. The settlers in colonial times  brought muskets and pistols. Guns were everywheer, every farmer, surveyor, and merchant class person in the cities had at least one. They were part of the ordinary commerce of the times for over 200 years prior to the Bill of Rights.

    The Second Amendment defining the role of militias and the tension between conscription and purposes of armed bodies of men became a failed amendment, much like Prohibition because the times and history rendered it unworkable.  Guns were everywhere before the Amendment and everywhere after, that is nowhere regulated or controlled by the Amendment!

    What is new these past decades  is the SCOTUS reach and the twist to find ways to hang the avoidance of regulation, the systematic common sense controls to deal with the menace of unbridled lethal weaponry, especially military optimized weaponry, not in a militia but let loose at random on all citizens, controlled and regulated or not!

    It is irrelevant to me whether the Justices cheering the gun deluge have stock in S and W, Remington Arms, Walmart, or other sellers and makers. That is too obvious. What is pernicious and treacherous is the hypocrisy of claiming Second Amendment "liberty" is more important to bestow as a right on a psycho killer and his freedom to buy and use deadly force away from sane regulation than it is for families and the rest of the population to be free from a judicially created monstrosity.

      The protected  freedom for sales of deadly objects for edification and profit of an insane few  regardless of consequences..

  •  I profoundly disagree with you (1+ / 0-)
    Recommended by:
    CroneWit

    Heller was wrongly decided.  If we start with that, we can still accept that it is currently the law and as such improperly restrains the government from taking action that under a correct reading of the Second would be completely constitutional and would furthermore promote the public good.

    But what we can also do is continue to work on establishing the legal arguments that, when the court's composition changes, would allow the court to revisit Heller (and McDonald) and overturn them.  And if we can't get it overturned, then we amend the Second so that it explicitly says what the founders actually meant and what generations of justices agreed it meant.

    Yes, Heller is the law and we have to abide it.  That does not mean we have to tie our hands and simply resign ourselves to living with this bad law forever.

    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 Wed Dec 26, 2012 at 10:27:10 AM PST

  •  Don't call us "people" in that condescending (0+ / 0-)

    tone, bub.  

    "and on that ground alone that viewpoint is extinct."  

    No viewpoint is "extinct," as witness the current control of the American dialogue by people who don't believe in science, and live lives ruled by superstition and ignorance.  

    As for the Second Amendment -- sorry, darling: as someone else noted, technology has made it extinct, if you want something that's extinct.  

  •  Well, there's that, then there's ... (1+ / 0-)
    Recommended by:
    CroneWit

    The Supreme Court decisions in Lochner v. New York overturned 32 years later by the Supreme Court in West Coast Hotel v. Parrish, which is the same court that decided Chisholm v. Georgia, which was overturned by Amendment in 1 year, and that Supreme Court in its decision in Bowers v. Hardwick was struck down again by none other than that same Supreme Court 17 years later in Lawrence v. Texas, coincidentally being a decision rendered by the same Supreme Court that ruled that Pace v. Alabama would be the law of the land until that same court completely changed its mind with its decision in Loving v. Virginia.

    Then, there's the Supreme Court completely changing its mind with Austin v. Michigan State Chamber of Commerce  and 20 years later their Citizens United ruling. And, of course, the Supreme Court holding in Oregon v. Mitchell, which was ruled moot only 1 year later by Amendment. The USSC again completely changed its mind within 12 years with decisions in Wolf v. Colorado and Mapp v. Ohio. Dred Scott never got the benefit of the Supreme Court completely going 180 on its decision affecting him, but it did.  Others have noted the Supreme Court went south with their Plessy v. Ferguson holding, until they went north with Brown v. Board of Education.

    Serious question: Was your con law class in high school? The United States Supreme Court is over 223 years old. It is altering decisions, parts of holdings, and getting rid of and adding new dicta every session. The above is only the cases everyone's heard about.

    A couple more sane Justices on the Court and Heller is butchered down to just Hell.

    I would tip you, but the man took away my tips.

    by Tortmaster on Wed Dec 26, 2012 at 10:33:57 AM PST

    •  The real reason that Supreme ... (2+ / 0-)
      Recommended by:
      MightyMoose, CroneWit

      ... Court rulings aren't rendered unconstitutional quickly is because of the nature of the court: Lifetime appointments, jurists not willing to admit that they, themselves, were not only wrong, but unconstitutionally wrong, the ebb and flow of a two-party system, etc.

      FDR wasn't packing the court for his health. We sit at one of those potential times in American history when the Supreme Court changes from one philosophy to another. It may not happen under President Obama's watch--again there's the lifetime appointment thing--but if demographics keep working the way they are, shit is finally gonna get done.

      I would tip you, but the man took away my tips.

      by Tortmaster on Wed Dec 26, 2012 at 11:28:00 AM PST

      [ Parent ]

  •  Simple solution... (0+ / 0-)

    The simple solution is for the government to regulate lethal ammo and set its prices accordingly.

    Make lethal rounds $10, $20,$30, or even $50 dollars a round so that they stop being a cheap commodity and become a valued resource for their intended purpose of killing a human for self defense or an animal for hunting.

    Then manufacture non-lethal ammo for sport shooting purposes.

    There is simply no way the gun lobby can make up an excuse to keep lethal ammo at disposable commodity prices, if you really want it for self defense you don't need more than a few rounds of it in your home period end of discussion.

    Once the prices are set at those levels then they will be locked up accordingly and not sitting around where any nut can grab enough to kill 27 people.

    Clearly we can do this without even thinking about the 2nd amendment, and guns are useless without ammo so we would not even have to lift a single finger banning anything...

    Fox News, The triumph of stupidity over reason.

    by laughingriver on Wed Dec 26, 2012 at 10:36:16 AM PST

    •  If you can get that passed. (1+ / 0-)
      Recommended by:
      laughingriver

      Please I want national health care and cutting the defense budget in half too.

      •  I'll get working on it... (0+ / 0-)

        But I seriously do not see any valid argument against this solution...

        Not that the gun nuts in this country won't twist themselves up into knots trying to argue against it for one reason or another, but they are they ones that yell about defending their property and home as being the main reason we can't have any gun control laws. Fine then, I'm just taking them at their word, not banning a single thing, just increasing the price of lethal ammo and replacing their sport shooting ammo with non-lethal rounds.

        The only ones who could logically argue against this is the ones who believe they need to stockpile ammo in case they need to defend all of our liberties against a government that has turned against us, but those are the nuttiest of the nuttiest...

        Fox News, The triumph of stupidity over reason.

        by laughingriver on Wed Dec 26, 2012 at 01:32:40 PM PST

        [ Parent ]

  •  yep, it's the law ... (1+ / 0-)
    Recommended by:
    CroneWit

    until the court says otherwise or we amend the constitution.  I think the former is the only realistic option.

    ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

    by James Allen on Wed Dec 26, 2012 at 10:46:27 AM PST

    •  Amend the Constitution? (0+ / 0-)

      You want to open the Constitutional Amendment process to these nutbags? They can't pass a budget!

      I tremble for my country when I reflect that God is just and that his justice cannot sleep forever. - Thomas Jefferson

      by MightyMoose on Wed Dec 26, 2012 at 02:18:10 PM PST

      [ Parent ]

      •  do you know the difference between (0+ / 0-)

        saying the latter and saying the former?

        ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

        by James Allen on Thu Dec 27, 2012 at 10:13:38 AM PST

        [ Parent ]

        •  Yes.. (0+ / 0-)

          The processes are quite different.

          Let me state it differently then.

          I don't trust them. They pollute the regular day to day workings of the body with posturing, misrepresentation, pearl clutching and outright obstructionism.

          They regularly attempt to pass legislation they didn't write, didn't read, and didn't think through. I don't trust them.

          I am aware that even if they did pass an Amendment, it would need to be ratified by the states. That would be amusing all on its own.

          I would simply like to wait until the Congress has fixed its current inability to operate on the basics. They should be able to operate at a level comparable to other Congresses in the last 10 years.

          Fix the Filibuster, change how lobbying works, and get back to where both sides can negotiate in good faith.. then I will feel more comfortable.

          Is that clearer, my good sir?

          I tremble for my country when I reflect that God is just and that his justice cannot sleep forever. - Thomas Jefferson

          by MightyMoose on Thu Dec 27, 2012 at 04:10:41 PM PST

          [ Parent ]

          •  no, because (0+ / 0-)

            in the first place I didn't say I wanted to amend the constitution, or that I thought it was likely, or a good idea to try.

            ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

            by James Allen on Thu Dec 27, 2012 at 10:32:46 PM PST

            [ Parent ]

  •  bravo, well done (3+ / 0-)


    and thank you for leading us through the contortions to where we are today: because I struggled with the 'text' of the 2nd amendment and could never understand how it could be interpreted the way Scalia did.  He has a lot to answer for.

    "Kossacks are held to a higher standard. Like Hebrew National hot dogs." - blueaardvark

    by louisev on Wed Dec 26, 2012 at 11:03:43 AM PST

  •  Heller (1+ / 0-)
    Recommended by:
    CroneWit

    SHOULD have made it easier to control guns.

    The main impediment on enacting gun laws is there is a sizeable amount of gun owners who think ANY gun regulation is the first step to confiscating all guns.

    So by saying there WAS a right that SHOULD have allowed for greater REGULATION without the worry of confiscation.

    However now with all these shootings rather than calling for greater regulation those on the anti gun crowd are calling for repealing the second amendment or laws that even people who own guns and believe we are having a gun problem won't be for.

    What COULD have happened is we say "Yes there's a right. But if you want an assault weapon you have to pay a big tax and go thru an extensive background check.  

    "Every gun should have a title just like a car, and when somebody buys it they have to submit to a background check before the owner can transfer the title.

    However just like the gun industry and gun culture overplayed their hand and allowed all these guns with such and abuse potential to hit the market the anti gun folks are stoking paranoia in an already paranoid gun culture that will probably make their goal of safe streets farther away.

  •  OK, look (1+ / 0-)
    Recommended by:
    CroneWit

    there's this idea that any decision SCOTUS makes is set in stone forever.

    But what about Plessy v Ferguson being overturned by Brown v Board of Education?  Is that sort of judicial activity, where we are actually able to say "Guess what, on second thought, we think those former Justices, who were, after all, human and fallible, were wrong in their interpretation of the Constitutionality of the law, and we don't believe separate but equal is constitutional" a thing of the past?

    Have we moved to a more papal form of government, in which SCOTUS not only has lifetime appointments but eternal infallibility?

    A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

    by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:17:41 AM PST

  •  Stare desisis (0+ / 0-)

    doesn't stop a justice from doing what the.  The one thing I remember from law school con law class is they will find a way to reach the result they want. Just look at the ACA decision. No serious legal scholar could argue the commerce clause doesn't allow it but Roberts ignored 70 years of stare decisis.

  •  Agree. Trying to argue the technicalities of (0+ / 0-)

    what the 2nd Amendment means just by looking at the raw text is like delving into the minutiae of what defines an assault weapon.  There's a lot more to either of those areas of specialization, and it doesn't really further the discussion as far as putting forward workable solutions is concerned.

    On the other hand I think our side needs to get a lot better at pushing back because the 2nd Amendment definitely is not a free-for-all and is not absolute.  Maybe in a few years when the Court has changed some smart set of attorneys can bring an argument that turns back some of the craziness that is in today's 2nd Amendment.  But that's for later.  Right now, there are tons of ways that we can and should regulate gun safety at the federal, state, and local levels.  It's just a matter of passing laws that won't get struck down.  

  •  B.S. (1+ / 0-)
    Recommended by:
    Navy Vet Terp

    The NRA and various "gun rights" activists took a squirrelly historically inaccurate interpretation of the 2nd Amendment and made it an article of faith among a goodly chunk of the public. They finally got some favorable judges on the Supreme Court to accept their view of the amendment.
       It had nothing to do with law. It had everything to do with politics.
       If the tide of public opinion turns, the court decisions can be reversed or made irrelevant.
       Don't think so? Look what's happening to abortion rights.
       Ultimately, the law is what the people say it is. The Courts just ratify it.

  •  Disputing Heller is about (0+ / 0-)

    discrediting the decision, making sure the next new Justice is vetted on the issue, putting the Supremes on notice, starting a public conversation about the state of current law, starting a counter-campaign to the NRA's 40 year effort to have individual gun rights codified, and in general, dissecting every aspect of that decision which could conceivably be challenged in a future court.

    And you say we should just accept it as settled law? No.

    Figures don't lie, but liars do figure-Mark Twain

    by OregonOak on Wed Dec 26, 2012 at 02:25:41 PM PST

  •  Thank you for this diary (0+ / 0-)

    And I of course agree that we are stuck with the Scalia and Alito decisions.  

    But, as I said, five political activists in black robes cannot change the historical record.  I think we have a duty to keep pointing out that these are political decisions that are just plain wrong.  

    On June 1, 1936, a 5-4 majority of the Supreme Court issued its decision in Morehead v. New York, holding New York's minimum wage statute for women and children unconstitutional as a violation of "freedom of contract" - the supposed right of employees and employers to negotiate employment contracts without government interference.  This supposed constitutional right legalized industrial slavery, as employees were forced to sign "Yellow Dog" Contracts agreeing to be fired if they even mention the word "Union", and further were forced to agree to work 12 or more hours  a day 6 or 7 days a week for mere pennies.  Sign the contract or you starve.

    As Justice Pierce Butler pointed out for the majority, this decision was in line with precedents going back to Lochner v. New York (1905) and even earlier, and, as Justice Butler further pointed out, this supposed freedom of contract was not absolute, there were exceptions that U.S. and state attorney generals were supposed to argue apply.

    Morehead and hundreds of its predecessors were overturned in one fell swoop, on March 29, 1937, in West Coast Hotel v. Parrish, and the country has been better for it ever since.  I would hope we can repeat this experience when we get new justices to correct this political activism.  Until then, I fear there will be more mass killings, in addition to the slow bleed of our children on the streets of our cities, caused in large part by the easy availability of guns.

    "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

    by Navy Vet Terp on Wed Dec 26, 2012 at 02:35:18 PM PST

  •  Good diary, couple of higher-level points: (0+ / 0-)

    1.  We need to be careful about characterizing Supreme Court opinions as overly pliable or subject to reversal.  They do change from time to time, but not that often.  I say this because if you look back at the Supreme Court's opinions over the last 50 years, progressive causes are ahead - way ahead - of conservative ones, even when you include Citizen's United, Heller and McDonald.  I think if we ever entered a phase where the Supreme Court started flip flopping on major points every 4 or 8 years, our side would have more to lose.

    2.  Heller and McDonald only talked about bans that prevented law-abiding citizens from having handguns in their own homes.  The Supreme Court has not ruled that an assault weapon ban is unconstitutional, and it has not ruled that requiring background checks at gun shows is unconstitutional.  I think many of these kinds of measures - to make the process safer without a complete ban - would be ok with the Court.  The real question is whether they can get past Congress.

  •  "It does not matter" is, with due respect, too ... (0+ / 0-)

    ... rhetorical for me.

    I'm surprised to see a student of Constitutional Law write that dissents do not matter. They do matter, as a matter of law and principle.

    True, Heller is the law. "Get over it" is a valid point. "It does not matter", I'll argue here with some passion, is not.

    Dissents mattered to Justice Scalia. His opinion for the 5-4 majority in Heller was 64 pages long. By my quick count, Scalia devoted 14 of his pages (and almost a third of his footnotes) to the dissent of Justice Stephens and at least five pages more to Justice Breyer's dissent. Those dissenting arguments pricked the consciousness of a justice known to be exceptionally sure of himself, raised his defensiveness and may well have influenced the cautions he reiterated that limit the sweep and scope of the Heller holding.

    And dissents matter very much to reasoned discourse. Constitutional law profs Ronald Collins and David Skover have recently published a fine little book, On Dissent - Its Meaning in America. A chapter is devoted to judicial dissents. Their bottom line is that "Without dissent, consent is meaningless."

    Dissents are calculated dissonance, acceptable and encouraged ways to provoke more thought. They are a summons to the future, a call to rethinking when a time and opportunity allow.

    Of course, we abide by the law and Heller is the law. But ... in the five years since it was decided, the Supreme Court has decided to take only one other gun rights case, McDonald which predictably applied Heller to the states.

    I read this as very seemly caution on the part of most of the justices. After all, any four of them could take any of the 60-plus gun rights cases that advocates have urged the court to review since Heller and McDonald. To date, they have not. (This term, a civil case - Lane v. Holder - is still pending for consideration and another - NRA v. BATFE is on the way. These two raise issues under Federal firearms law. A criminal case raising gun issues - Rosemond v. US is scheduled for argument on November 12 and another - Abramski v. US is pending, although the Court need not decide these latter two on Second Amendment grounds.)

    Will the Court take up the Second Amendment this term? We'll stay tuned and try to read the tea leaves of the majority and the inevitable dissents.

    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Fri Nov 01, 2013 at 11:10:36 AM PDT

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