[ReelinRod]

Originally Posted by spence

The SCOTUS and pretty much every federal appeals court have been very consistent in the belief that the Second Amendment did not confer an individual right up until the Heller case.

SCOTUS has remained consistent in all its discussions of the right to arms and also the 2nd Amendment, re-re-re-affirming a pre-existing, fully retained right of the individual not granted, given or otherwise established by the 2nd amendment nor dependent in any manner on the Constitution for its existence.

The lower federal courts went off the rails in 1942 when the First Circuit (39kb pdf) and the Third Circuit (52kb pdf) infected the federal courts with the "collective right" and "state / militia right" interpretations. The 1st Circuit was especially disingenuous, first offering a true explanation of the recent Supreme Court Miller decision but then dismissing Miller as establishing no rule so it could create the militia conditioned scope of 2nd Amendment protection.

SCOTUS with the Heller decision only invalidated these lower court diversions (which of course were the guiding law for 66 years).

Originally Posted by spence

The context of this thread is that the Obama administration and Eric Holder in particular represent a radical departure from an established course, but the facts don't support this at all.

Correct, they are sticking with the 1942 collective right / state militia right interpretation which was the predominant interpretation for 66 years. Them continuing to advance a theory abandoned by nearly all, has not made the philosophically, historically and legally correct "individual, fully retained right" interpretation, void.

Originally Posted by spence

Remarkably the Administration has done little if anything to curb the rights of gun owners even when the Democrats had a majority in Congress.

Are you arguing that given another term and the opportunity to appoint another Supreme Court Justice (if not two) in the vein of Sotamayor and Kagan, and a subsequent SCOTUS ruling endorsing any aspect of the Heller dissents . . . That government action hostile to individual's gun ownership rights wouldn't immediately follow from the Executive and Legislative branches?

Biding time is all that's happening right now. Heller and McDonald altered the timeline of the attack on the individual right to arms. Those hostile to the right to arms have not gone away nor have they had an epiphany and now embrace the principles of conferred powers and retained rights. No, these statists are just biding their time until a Court that leans that far left can be established and begin dismantling those impediments to their agenda.

The reality is, no matter how hostile Obama or any member of Congress might be to individual gun ownership rights they are astute enough to not make matters worse for the left's agenda. Having another priority of the left under scrutiny by SCOTUS before the election is not conducive to victory.

Bottom line is, no gun rights supporter should mistake present gun control supporter's quiet patience for acceptance and tolerance of gun owner's rights. None of them are deserving of trust.

For you to seemingly argue that this current national inactivity of anti-gun politicians (Obama included) somehow represents political acceptance and tolerance of gun owners rights is just laughable.

Originally Posted by spence

Holder seems to advocate more restrictive gun measures to help prevent crime, and I think a lot of people would agree with this.

And the Obama DoJ NOT having to defend any new gun control laws and perhaps have SCOTUS decide on the level of scrutiny to be applied to laws challenged on 2nd Amendment grounds, works in Holder's favor. As long as the standard of scrutiny remains undefined there is time to remedy the situation with a SCOTUS pick or two.

This we can be sure of, there will be no gun control law written or signed into law until the left has a rubber-stamp majority in place on the Court. That Fenty went against their advise and appealed Heller to SCOTUS ticked a lot of people off. They will not make the same mistake twice.

Originally Posted by spence

Given that the Heller decision was a close 5 to 4 it would seem as though some well read justices do as well.

Well, if you really want to get down to the nitty-gritty, the Court's decision on the question of whether the 2nd Amendment secures a collective right vs. an individual right came down on the individual right side 9-0.

Steven's dissent (which all members of the minority joined) said:

• "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

Breyer's dissent (which all members of the minority joined) said:

• "In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting)."

The dissents just weaseled themselves into a position where they could dismiss or ignore the legal realities of that individual right determination. The dissents were focused on the standard of scrutiny and agreed that, under the standard envisioned and embraced by the minority, the DC laws would have been upheld . . . So, for the time being the question of what type of right the 2nd secures is closed (well, until it's time to revisit it).