2nd Amendment

[Slipknot]

USA Today is running a poll
please vote

USATODAY.com - Quick Question

HOLDER SAYS WE HAVE NO RIGHT TO POSSESS GUNS
TAKES 10 SECONDS ... DO IT AND PASS IT ON. Own a Gun? Please Keep This Moving. Guess they were not happy with the poll results the first time so USA today is running another one... Vote now. Attorney General, Eric Holder, has already said this is one of his major issues. He does not believe the 2nd Amendment gives individuals the right to bear arms. This takes literally 2 clicks to complete. Please vote on this gun issue question with USA Today. It will only take a few seconds of your time. Then pass the link on to all the pro- gun folks you know. Hopefully these results will be published later this month. This upcoming year will become critical for gun owners with the Supreme Court's accepting the District of Columbia case against the right for individuals to bear arms. Here's what you need to do:

First - vote on this one. Second- launch it to other folks and have THEM vote - then we will see if the results get published. Click above to vote.

USATODAY.com

[Raven]

97%

[Hookedagain]

done! These people are idiots. They think they can just change everything our founding fathers have created.

[ReelinRod]

If you consider yourself a constitutionalist and consider yourself in alignment with the founders / framers on the topic of rights, the correct answer is NO.

This poll has been chugging along since November of 2007.

The Supreme court decided Heller in June of 2008.

[TheSpecialist]

Originally Posted by ReelinRod

If you consider yourself a constitutionalist and consider yourself in alignment with the founders / framers on the topic of rights, the correct answer is NO.

This poll has been chugging along since November of 2007.

The Supreme court decided Heller in June of 2008.

Really care to elaborate?

During the events that led to the Constitution being written, it was individuals who were armed, and then joined together to form a militia to fight the British, before Washington even fielded an Army. So I am thinking that is exactly what they meant.

[TheSpecialist]

Originally Posted by Slipknot

USA Today is running a poll
please vote

USATODAY.com - Quick Question

HOLDER SAYS WE HAVE NO RIGHT TO POSSESS GUNS
TAKES 10 SECONDS ... DO IT AND PASS IT ON. Own a Gun? Please Keep This Moving. Guess they were not happy with the poll results the first time so USA today is running another one... Vote now. Attorney General, Eric Holder, has already said this is one of his major issues. He does not believe the 2nd Amendment gives individuals the right to bear arms. This takes literally 2 clicks to complete. Please vote on this gun issue question with USA Today. It will only take a few seconds of your time. Then pass the link on to all the pro- gun folks you know. Hopefully these results will be published later this month. This upcoming year will become critical for gun owners with the Supreme Court's accepting the District of Columbia case against the right for individuals to bear arms. Here's what you need to do:

First - vote on this one. Second- launch it to other folks and have THEM vote - then we will see if the results get published. Click above to vote.

USATODAY.com

And this is one of the biggest reasons Obama needs to go. He has an agenda and that is get elected the second time and go after guns and gun rights, since he can't be elected a third time

[ReelinRod]

The question cultivates and nurtures a profoundly incorrect belief about the Constitution and the origin of rights.

I do not possess the right to keep and bear arms because the 2nd Amendment "gives" it to me . . . I possess the right because no power was ever granted to the federal government to have the slightest interest in the personal arms of the private citizen.

The acceptance of the anti-constitutional concept that our rights are given to us by government decree is the ultimate insult to the framers and their novel exercise of establishing a charter of conferred powers that recognizes and secures retained rights.

This poll's results are sad testimony of just how far we have wandered from the principles the framers held dear.

[spence]

That poll is from 2007. What's the source for the assertion Holder is against the second amendment?

-spence

[ReelinRod]

Originally Posted by spence

That poll is from 2007. What's the source for the assertion Holder is against the second amendment?

Well, no such assertion was made. The claim made in the OP was that, "HOLDER SAYS WE HAVE NO RIGHT TO POSSESS GUNS" which is consistent with Holder's position on the RKBA and not necessarily a statement about the 2nd Amendment.

Of course that basic argument flows directly into his position that the 2nd Amendment is not a claimable immunity for individual citizens to claim any injury of the RKBA (whatever it might be) against the federal government.

[spence]

When did he ever say that?
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[ReelinRod]

Well, Holder signed the BRIEF FOR FORMER DEPARTMENT OF JUSTICE OFFICIALS AS AMICI CURIAE SUPPORTING PETITIONERS (255kb pdf) also known as the "Janet Reno et al" amicus in DC v Heller.

That brief contains the statements:

• "Amici disagree with the current position of the United States Department of Justice that the Second Amendment protects an individual right to keep and bear arms for purposes unrelated to a State’s operation of a well-regulated militia."

The signers (including Holder) believe that the 2nd Amendment:

• “does not create a personal right in individuals to be free of reasonable legislative regulation of their possession of firearms”

The signers (including Holder) believe that if a right can be argued to be secured by the 2nd Amendment it is conditioned, qualified and thus limited by the Amendment's 'militia purpose' and only exercisable to that end:

• "the constitutional right to keep and bears arms is limited to the possession or use of firearms that is reasonably related to a State’s operation of a militia regulated by state and federal law."

The signers (including Holder) warn of the eventualities of the Court upholding the lower court's individual right interpretation:

• "Recognition of an expansive individual right to keep and bear arms for private purposes will make it more difficult for the government to defend present and future firearms laws."

And:

• "If the Second Amendment protects a person’s right to keep and bear arms for self-defense, recreation, or other purposes unanchored to the operation of the militia, however, the analysis that courts must undertake becomes less straightforward and the risk that a firearms regulation or prohibition enacted to protect public safety will be invalidated is increased."

Holder's official position of the 2nd Amendment is that is does not secure an individual right.

Holder's official position is that no claimable right to keep and bear arms exists for anyone independent of the scope of the 2nd Amendment's protection sphere that he embraces. IOW, whatever right that can be said to exist must be filtered through the 2nd Amendment as if it is the right's genesis.

That position is hostile to all prior SCOTUS opinion and the principles of conferred powers and retained rights and it demands we ignore the rules for constitutional interpretation set out in the 9th and 10th Amendments.

The right of the people to keep and bear arms does not exist because of any particular interpretation of the 2nd Amendment. The people possess the right to keep and bear arms because no power was ever surrendered by them to be granted to the federal government to even contemplate the personal arms of the private citizen.

ALL NOT CONFERRED IS RETAINED.

It's not that Holder just doesn't "get it", it's that he and his anti-constitution ilk (including Obama's SCOTUS picks) vigorously endeavor to destroy the principle at every turn.

[ReelinRod]

Just an additional note on how reprehensible the disingenuous selective quoting of the statist left can be.

They need to lie to make their points, especially when their point relies on prior Supreme Court opinions supposedly affirming their arguments.

Who can tell me what is profoundly, fundamentally wrong with the following statement (in reference to Miller) contained in the brief's "Summary of Argument"?

• "the Court agreed with the government that the “possession or use” of a firearm must “ha[ve] some reasonable relationship to the preservation or efficiency of a well regulated militia” to fall within the scope of the Second Amendment."

Quote from page 3 of the above referenced Amicus. Page 30 says:

• "That view was also adopted by this Court in Miller, which held that the Second Amendment does not protect the “possession or use” of a firearm unless such possession or use “has some reasonable relationship to the preservation or efficiency of a well regulated militia.”

Hint, the answer is found on page 12 of the brief (part 2 of Section B of the actual argument of the brief). . .

[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.

The language used in the brief prepared by the Holder DOJ has been used by numerous administrations regardless of party, go look up the briefs prepared by John Ashcroft for Emerson, Silveiri and Lamar Bean.

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

Holder seems to advocate more restrictive gun measures to help prevent crime, and I think a lot of people would agree with this. Given that the Heller decision was a close 5 to 4 it would seem as though some well read justices do as well.
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[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).

[Sundowner]

get the guns out of the criminals hands first, then worry about the rest

[TheSpecialist]

Originally Posted by Sundowner

get the guns out of the criminals hands first, then worry about the rest

Hell yeah!

[piemma]

Looks like the results of the poll show over 10 million of us think the 2nd Amendment give us the right to have guns. As a great man once said:

"I have more guns than I need but less than I want".

[ReelinRod]

Originally Posted by piemma

Looks like the results of the poll show over 10 million of us think the 2nd Amendment give us the right to have guns.

And they are fundamentally and profoundly wrong.

[spence]

Originally Posted by ReelinRod

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

I believe that's exactly what I had said...and that the Administration doesn't appear to be deviating much from guiding law.

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.

An assertion like that (abandoned by nearly all) should really be backed up with data.

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?

I think the Administrations behavior in the first two years where they had a majority in Congress is a good indicator of future behavior. Even with a second Obama term the likely hood of such a commanding position is unlikely.

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 court of public opinion seems to consistently believe in the right of regulated gun ownership and most policy will likely chart along this course.

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.

Well sure, but in that light an aggressive (I don't think hostile is appropriate) position would only serve to undermine future Democratic elections.

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.

It's laughable if you're on the fringe. To the rest of us it's common sense.

The reality is that Democrats feel they have bigger fish to fry, oh, and a lot of them like to hunt also.

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).

Steven's dissent appears to be validating the right of the individual in context of how it has been historically been used. Certainly a member of a militia is an "individual" owning a weapon...but the Second Amendment, in simple to understand terms, states the individual has the right to own arms for that purpose. The right is granted for the purpose of the collective to be executed by the individual.

So yes, the individual has rights, but without a declaration of scope to those rights there's not a lot of benefit. Perhaps it could be used to overturn a total ban on all weapons, but it certainly doesn't say a state can't restrict gun ownership by the individual. 9-0 is a bit of spin...

To the whole thing about the Second Amendment not granting the right, I think it's more to state that the government can't go to far in efforts to keep us safe.

-spence

[spence]

Meant above in a modern context of course.
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[Piscator]

I just puked, back to watching the Bruins
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[Slipknot]

forgive me for posting this in the forum I thought was appropriate

[spence]

A good civil discussion is always appropriate.
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[ReelinRod]

Originally Posted by spence

I believe that's exactly what I had said...and that the Administration doesn't appear to be deviating much from guiding law.

That "guiding law' can guide no more . . . It no longer has any precedential value; it has been invalidated by higher authority. The fact is, the interpretations / theories promulgated by those lower federal courts never had any representation in the Supreme Court, that "guiding law" was a product of those lower courts ignoring and dismissing SCOTUS.

By invalidating lower court inventions and diversions SCOTUS brought the "guiding law" back into the constitutional fold. The administration just hasn't gotten the message yet . . .

Originally Posted by spence

An assertion like that (abandoned by nearly all) should really be backed up with data.

In McDonald the majority slapped down the minority for "repackaging one of the chief arguments that we rejected in Heller". The "collective / state / militia right" theories are officially dead now. Government attorneys in RKBA / 2nd Amendment cases since McDonald have avoided any mention of collective / state / militia conditioned rights and have all focused on arguing for a rational basis or a form of Breyer's goofy "interest-balancing inquiry" standard of scrutiny.

The hodge-podge of collective / state / militia conditioned rights will not be argued again in a court until it is heard by a receptive panel at the SCOTUS.

I also say "abandoned by nearly all" as someone who has been debating gun rights / gun control online since 1993 (the dark ages as it is known by gun rights supporters, when your side was "winning").

I can honestly tell you that it is very, very difficult to find a debate such as this, discussing the constitutional points and rights theory.

Those arguing a gun control position based in constitutional interpretation have pretty much evaporated. Yeah, gun debate still exists but the foaming mouth animosity in the left for gun rights and especially gun rights organizations like the NRA control the discussion. With philosophical arguments gone, gun debate, especially in political forums, has devolved to scat throwing monkey level. It is seeing that anger and hatred that I draw my "holding pattern" conclusions from.

Originally Posted by spence

I think the Administrations behavior in the first two years where they had a majority in Congress is a good indicator of future behavior. Even with a second Obama term the likely hood of such a commanding position is unlikely.

Heller was published five months before the election and the McDonald challenge in the 7th Circuit was filed the day after Heller came down. Whatever gun control that was dreamed of for an Obama presidency and Democrat Congress swept in with him before June of '08 would need to wait until the Court is a slam-dunk. We are in a holding pattern right now (at least for above board actions ).

Originally Posted by spence

The court of public opinion seems to consistently believe in the right of regulated gun ownership and most policy will likely chart along this course.

Until they have a SCOTUS opinion to wave in our faces . . .

Originally Posted by spence

Well sure, but in that light an aggressive (I don't think hostile is appropriate) position would only serve to undermine future Democratic elections.

No, hostile is appropriate.

With as you note, the current lack of public support for gun control it would be difficult for Dems to retain or gain offices if legislation was pushed through. For most of the gen-pop the gun control issue is more of a cultural issue, urban vs rural etc. As we see now, those voters are placated by a SCOTUS ruling and focus on other issues.

The debate we are having on the Constitution and the legitimate powers of government make their eyes gloss over or are simply over their heads. Like abortion and gay rights the extremes are the motivated actors and most people are turned off by what passes for discourse between them.

As I said before, there has been no epiphany, there is no respect for gun owners among the Democrat power structure, nor is there any acceptance of the Heller and McDonald holdings in the majority of the left.

An honest answer please . . .

All things equal, had Heller not been heard and decided in 2008 would the Obama administration's gun control "agenda" been different? Given no Heller and the same non-action you are holding up, would you still be happily touting the then Democrat controlled Congress and President Obama's non-record on gun control 3-1/2 years in?

Originally Posted by spence

It's laughable if you're on the fringe. To the rest of us it's common sense.

An honest answer to the above question proves my 'laughable" characterization . . .

Is it really your position that Obama can now be counted upon to defend gun rights and respect the traditions of hunting, target shooting and gun collecting and the diverse cultures of gun owners across this nation?

I must ask, when will his judicial appointments begin reflecting this new, "common sense" respect for gun rights?

Originally Posted by spence

The reality is that Democrats feel they have bigger fish to fry, oh, and a lot of them like to hunt also.

I post in the Gungeon at Democratic Underground . . . There are many committed Democrats who are ardent supporters of gun rights and detest the party platform and call it what it is, hostile to the true progressive principles of civil liberty.

Originally Posted by spence

Steven's dissent appears to be validating the right of the individual in context of how it has been historically been used.

Steven's dissent is an exercise in buffoonery masquerading as hypocrisy and incompetence. Turning his back on principles he has built his reputation upon (his fondness for Harlan's dissent in Poe) and numerous errors in law (which also implicates his clerks and the other minority Justices who signed on).

It is sad really . . .

Originally Posted by spence

Certainly a member of a militia is an "individual" owning a weapon...but the Second Amendment, in simple to understand terms, states the individual has the right to own arms for that purpose. The right is granted for the purpose of the collective to be executed by the individual.

The only "simple to understand terms" that matter are the clear statements of the Supreme Court:

• " . . . the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."

So when did the above reverse meaning so, " . . . the right of the people to keep and bear arms is a right granted by the Constitution. It it is entirely dependent upon a modern interpretation of that instrument for its existence." ????

How can you defend reading words UPON WHICH THE RIGHT DOES NOT, IN ANY MANNER DEPEND into creating dependencies, conditions, qualifications and restraints on the exercise of the right?

Originally Posted by spence

So yes, the individual has rights, but without a declaration of scope to those rights there's not a lot of benefit.

So rights only have meaning and purpose when the government frames them and explains to us their extent?

Originally Posted by spence

Perhaps it could be used to overturn a total ban on all weapons, but it certainly doesn't say a state can't restrict gun ownership by the individual.

No right is absolute in an ordered society but for fundamental rights the government must make the case for their abridgement.

Originally Posted by spence

9-0 is a bit of spin...

Well, when one considers what the "guiding law" was,

US v Tot (1st circuit link above):

[The Second Amendment] "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power"

ANY recognition of any individual right aspect of the 2nd Amendment's protection sphere is a noteworthy refutation of that "guiding law" . . . especially if it is contained in dissents that people have been told represents the opposite of the majority's "individual right" holding .

The Tot "state's right" theory is abandoned by Stevens but he equivocates from his "individual right" opening and parrots a "limited, militia conditioned individual right" which had its genesis in a law review article written in the Spring of 2004 heralding "A New Paradigm for the Second Amendment".

Originally Posted by spence

To the whole thing about the Second Amendment not granting the right, I think it's more to state that the government can't go to far in efforts to keep us safe.

Yeah, that's it. The fundamental principles of inherent and inalienable rights really just comes down to a government keeping us safe (but not too safe???).

[Raven]

[piemma]

You guys want to talk about law inequity, try to get a LTC in RI. In almost every other state you take a course, qualify on a range, pass a BCI check and you have it.

In RI you have to all of the above with much more stringent shooting qualifying rounds and then you have to go in front of the RI Atty General and present a case as to why you should be granted what the 2nd Amendment guarantees. Also RI doesn't recognize a LTC from any other state as being valid. WTF!!!

[MotoXcowboy]