The Supremes

[TwiceHorn 31984]

17 hours ago, BHMCruiser said:

So an originalist would say the First Amendment does not protect email, television, etc, because those modalities did not exist at the time of the founding?

Potentially, yes. But it is originalism reductio ad absurdum. I think the 4th Amendment is a better example, though, in that technology has advanced to a level that there are searches and seizures that are less or not at all physically invasive that the founders might not have considered within the ambit of the 4th Amendment.. 

Regardless, no "system" of interpretation of the Constitution is the correct or always applicable system.  It's always going to be a mish-mash.  Just like the "canons of construction" of statutes and contracts vary a bit with the situation.

Edited December 22, 2021 by TwiceHorn

[tx 3 putt 78466]

13 minutes ago, BHMCruiser said:

What are the other collective rights in the Bill of Rights?

[TwiceHorn 31984]

30 minutes ago, wildcat09 said:

I don't know that "people" vs "person" should be construed to matter, really. The 4th amendment protects the right of the "people" to be secure in their persons, papers, etc. and we all consider that an individual right. 

This is another problem with originalism and textualism: they expect perfection from the people who wrote laws. Sometimes someone just got sloppy. 

One aspect of originalism is that if it wasn't contemplated by the founders/original document, it should be implemented by amendment or legislation.  That idea has some merit in a democracy.  It works fairly well with the interpretation of statutes:  if Congress fucked up the wording and didn't mean what they said, they can fix it.

But, of course, the amendment process is cumbersome and virtually impossible now.

But none of the various flavors of interpretation can really be adhered to dogmatically, like I said.

[wildcat09 29556]

11 minutes ago, BHMCruiser said:

What are the other collective rights in the Bill of Rights?

There aren't any others. Really, if I'm being pedantic I'd take issue with characterizing it as a "collective right" too. I think the best understanding of what a "right" is is that they're always individual and that they operate as protections against or limitations on the exercise of certain state powers against our person or property. This is why I've said before that states don't have rights, they have powers. But I think the 2nd might in a sense be the sole exception to that, in that I think it was really meant to confer upon a state, rather than individual persons, the "right" for its military to be protected from disarmament by the federal government. In that sense it was an attempt to maintain a small portion of the character of the relationship between the states and the federal government that had existed under the Articles of Confederation.

I think an honest reckoning with the language of the amendment and its history, both the intent and how it was interpreted for most of American history, would find it mostly vestigial today. Perhaps Texas could still argue that the 2nd prevents the federal government from disarming the Texas National Guard. But for anyone to argue that it was intended to confer and protect, say, an individual right to wield arms in self defense, is pure judicial activism and shitty historicism.

[BHMCruiser 1828]

18 minutes ago, TwiceHorn said:

Potentially, yes. But it is originalism reductio ad absurdum. I think the 4th Amendment is a better example, though, in that technology has advanced to a level that there are searches and seizures that are less or not at all physically invasive that the founders might not have considered within the ambit of the 4th Amendment.. 

Regardless, no "system" of interpretation of the Constitution is the correct or always applicable system.  It's always going to be a mish-mash.  Just like the "canons of construction" of statutes and contracts vary a bit with the situation.

agreed

just saying you can still be a originalist and allow for technological advancement, as long as the principles are maintained

[TwiceHorn 31984]

2 minutes ago, wildcat09 said:

There aren't any others. Really, if I'm being pedantic I'd take issue with characterizing it as a "collective right" too. I think the best understanding of what a "right" is is that they're always individual and that they operate as protections against or limitations on the exercise of certain state powers against our person or property. This is why I've said before that states don't have rights, they have powers. But I think the 2nd might in a sense be the sole exception to that, in that I think it was really meant to confer upon a state, rather than individual persons, the "right" for its military to be protected from disarmament by the federal government. In that sense it was an attempt to maintain a small portion of the character of the relationship between the states and the federal government that had existed under the Articles of Confederation.

I think an honest reckoning with the language of the amendment and its history, both the intent and how it was interpreted for most of American history, would find it mostly vestigial today. Perhaps Texas could still argue that the 2nd prevents the federal government from disarming the Texas National Guard. But for anyone to argue that it was intended to confer and protect, say, an individual right to wield arms in self defense, is pure judicial activism and shitty historicism.

I repped the post, but disagree with the last sentence.  

Although it is a reference to militia, and does place a certain context on the amendment, it's really hard to get past "the right of the people to keep and bear arms shall not be infringed."

At the time, ownership of arms was common, and free, and they were used for a multitude of purposes, mostly legit, as in hunting to feed the family and defense from critters human and otherwise.

I suppose they could have said that "The hunting of squirrels and deer, and defense against injuns and 3/5 citizens being necessary to a free state," but that might have been perceived as trivial.

I recognize the inconvenience of the amendment today, but I don't think there's any interpretive magic that can be worked on it.  Still, I don't think it forecloses all regulation of firearms ownership.

[2early4flapjacks? 39]

Wasn't the original intent of the Bill of Rights to protect the states (and thereby citizens) from the federal government?  It wasn't intended nor interpreted to protect citizens' rights from their state government until about one hundred years after ratification.  Does that factor into this discussion?  Also, if you ever visit Colonial Williamsburg, see the public magazine there (where the people's arms were kept), and hear the story about the British Governor Dunmore seizing the people's arms and powder in 1755, it might put the "prefatory" statement of the 2nd amendment into perspective.  The framers weren't stupid, they didn't waste words, there was purpose behind it (but it wasn't what the NRA would have us believe).

[BHMCruiser 1828]

25 minutes ago, wildcat09 said:

There aren't any others. Really, if I'm being pedantic I'd take issue with characterizing it as a "collective right" too. I think the best understanding of what a "right" is is that they're always individual and that they operate as protections against or limitations on the exercise of certain state powers against our person or property. This is why I've said before that states don't have rights, they have powers. But I think the 2nd might in a sense be the sole exception to that, in that I think it was really meant to confer upon a state, rather than individual persons, the "right" for its military to be protected from disarmament by the federal government. In that sense it was an attempt to maintain a small portion of the character of the relationship between the states and the federal government that had existed under the Articles of Confederation.

I think an honest reckoning with the language of the amendment and its history, both the intent and how it was interpreted for most of American history, would find it mostly vestigial today. Perhaps Texas could still argue that the 2nd prevents the federal government from disarming the Texas National Guard. But for anyone to argue that it was intended to confer and protect, say, an individual right to wield arms in self defense, is pure judicial activism and shitty historicism.

I don't find your argument very compelling. You say there are no other collective rights (which I think is a strong inference that there are no collective rights in the BoR at all, rather than the Second Amendment is an exception for some reason). I think you're just wishing the right away. 

[wildcat09 29556]

4 minutes ago, BHMCruiser said:

I don't find your argument very compelling. You say there are no other collective rights (which I think is a strong inference that there are no collective rights in the BoR at all, rather than the Second Amendment is an exception for some reason). I think you're just wishing the right away. 

What other right in the Bill of Rights or elsewhere in the Constitution remotely concerns the relationship of a private citizen (gun wielder defending himself/herself) vis a vis another private citizen (the assaulter being shot)?

The 2nd is weird regardless of your belief about what gun rights people should have (and you'll notice I haven't expressed an opinion on that). Trying to pretend it isn't doesn't help your argument.

[BHMCruiser 1828]

8 minutes ago, wildcat09 said:

What other right in the Bill of Rights or elsewhere in the Constitution remotely concerns the relationship of a private citizen (gun wielder defending himself/herself) vis a vis another private citizen (the assaulter being shot)?

The 2nd is weird regardless of your belief about what gun rights people should have (and you'll notice I haven't expressed an opinion on that). Trying to pretend it isn't doesn't help your argument.

The Second Amendment may be unique because it deals with a specific issue, but that doesn't mean that you can just pretend it does not exist, that it's vestigial, that it does not make sense in the modern era, etc.

[BHMCruiser 1828]

Just now, BHMCruiser said:

The Second Amendment may be unique because it deals with a specific issue, but that doesn't mean that you can just pretend it does not exist, that it's vestigial, that it does not make sense in the modern era, etc.

The Second Amendment protects the right to keep and bear arms. What that right "is" is defined by the history and tradition at the time of the founding. Self-defense is its own common-law phenomenon, as is armed self-defense. 

[workswithseed 2201]

47 minutes ago, TwiceHorn said:

One aspect of originalism is that if it wasn't contemplated by the founders/original document, it should be implemented by amendment or legislation.  That idea has some merit in a democracy.  It works fairly well with the interpretation of statutes:  if Congress fucked up the wording and didn't mean what they said, they can fix it.

But, of course, the amendment process is cumbersome and virtually impossible now.

But none of the various flavors of interpretation can really be adhered to dogmatically, like I said.

Seeing as the founders wanted stalemate for the most part. It would make sense that it would take most of the nation to make an amendment that would go across the land.

I bet they counted thier lucky stars when they heard what was happening in Paris, and how fast things were degrading, that they made a pretty free but structured government.

[wildcat09 29556]

Just now, BHMCruiser said:

The Second Amendment may be unique because it deals with a specific issue, but that doesn't mean that you can just pretend it does not exist, that it's vestigial, that it does not make sense in the modern era, etc.

I specifically said that an honest interpretation of it could find that it should still protect a state guard from federal disarmament. But I think interpreting it to confer an individual right to possess a gun for self defense is pure judicial activism. 

[Longhorn_Fan68 34078]

Just now, BHMCruiser said:

The Second Amendment protects the right to keep and bear arms. What that right "is" is defined by the history and tradition at the time of the founding. Self-defense is its own common-law phenomenon, as is armed self-defense. 

and this is why this country is lost. you clearly have no idea what the 2nd amendment is for

[BHMCruiser 1828]

6 minutes ago, Longhorn_Fan68 said:

and this is why this country is lost. you clearly have no idea what the 2nd amendment is for

I don't even know what this means. Enlighten me. What is the Second Amendment actually for, and what do I think it is for? If your position is that it's not to protect the right to keep and bear arms (whatever that means) you're going to have an uphill slog.

[BHMCruiser 1828]

7 minutes ago, wildcat09 said:

I specifically said that an honest interpretation of it could find that it should still protect a state guard from federal disarmament. But I think interpreting it to confer an individual right to possess a gun for self defense is pure judicial activism. 

You're jumping to the end without doing any analysis. You say it's a collective right, but don't support that determination at all. The Second Amendment definitely does not "confer" an individual right on anyone. It protects a pre-existing right to keep and bear arms as understood at the time of the Founding. Do you have a right to have a weapon? Under our constitution, yes. Do you have the right to self-defense? As a matter of natural law and English common law at the time of the Founding, yes you do. Do you have a right to armed self-defense? Yes. This is two great tastes that go great together. 

[Longhorn_Fan68 34078]

2 minutes ago, BHMCruiser said:

I don't even know what this means. Enlighten me. What is the Second Amendment actually for, and what do I think it is for? If your position is that it's not to protect the right to keep and bear arms (whatever that means) you're going to have an uphill slog.

I dunno, you fucking tell me. Everyone seems to ignore the first 4 words and just zoom to the last part:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

[JimmyJames 12271]

For two hundred plus years nobody bothered with the second amendment because it didn’t need any interpretation. Everyone understood well enough what it meant. The feds can’t ban all guns and arms and it’s up to the states and local authorities to regulate them as they see fit. Period. 
 

Then recently the pew pew right wing gun nuts and the NRA started to argue to interpret it with the ultimate goal of virtually no gun regulation at all which the nation for two hundred plus years would have found patently absurd.

It’s a small dick right wing pew pew fantasy run amuck. 

[NotActuallyALonghorn 4998]

1 hour ago, wildcat09 said:

I specifically said that an honest interpretation of it could find that it should still protect a state guard from federal disarmament. But I think interpreting it to confer an individual right to possess a gun for self defense is pure judicial activism. 

Do you think that they expected the unorganized militia to be able to magically be able to use arms effectively in the event that they had to be drafted in an emergency such as during the Whiskey Rebellion? And how were they to provide their own arms as the law required if local jurisdictions were able to ban them? The overall context of the time seems to indicate that most of the founding fathers expected this to be both a collective and an individual right. I'm sure there were some who disagreed with the individual rights part, which might explain the ambiguity of the prefatory clause. It wouldn't be the first time ambiguous language was used to get something to pass muster.

1 hour ago, JimmyJames said:

For two hundred plus years nobody bothered with the second amendment because it didn’t need any interpretation. Everyone understood well enough what it meant. The feds can’t ban all guns and arms and it’s up to the states and local authorities to regulate them as they see fit. Period. 
 

Then recently the pew pew right wing gun nuts and the NRA started to argue to interpret it with the ultimate goal of virtually no gun regulation at all which the nation for two hundred plus years would have found patently absurd.

It’s a small dick right wing pew pew fantasy run amuck. 

That's an absurd view of the current state of affairs. The people you describe are pissed at the NRA because they support some types of restrictions. The law in question was designed to disenfranchise undesirable groups of people and has become an outright restriction on the ability to exercise your rights unless you are part of an exclusive group that can make big enough donations to the right people. It is straight up racism and corruption. The exact thing that the Democrats should be fighting against if they believe in civil rights.

[DDD Dad 14570]

2 hours ago, TwiceHorn said:

I repped the post, but disagree with the last sentence.  

Although it is a reference to militia, and does place a certain context on the amendment, it's really hard to get past "the right of the people to keep and bear arms shall not be infringed."

At the time, ownership of arms was common, and free, and they were used for a multitude of purposes, mostly legit, as in hunting to feed the family and defense from critters human and otherwise.

I suppose they could have said that "The hunting of squirrels and deer, and defense against injuns and 3/5 citizens being necessary to a free state," but that might have been perceived as trivial.

I recognize the inconvenience of the amendment today, but I don't think there's any interpretive magic that can be worked on it.  Still, I don't think it forecloses all regulation of firearms ownership.

We'll just have to agree to disagree with the wisdom and correctness of Heller.  Personally I think it was a significant shift from the prior albeit limited second amendment jurisprudence over the course of the country's history. 

I would rather have seen the court view the right to keep and bear arms (at a personal level) as similar to the right of privacy; not expressly enumerated but presumed under the ninth amendment, which would permit reasonable restrictions on such right to allow state and local lawmakers to develop the law to fit the needs of a changing society.

That horse has left the barn, though.

[jimmyjazz 46967]

I'm roughly as qualified as a constitutional scholar as I am an NBA power forward:  indulge me.

I like @TwiceHorn's takes here.  The last half of the 2nd amendment seems pretty compelling.  To dig in a bit, when I read "the right of the people to keep and bear Arms, shall not be infringed" it seems clear that it doesn't reference "ALL arms".  This seems important.  There are already restrictions on weapons ownership by individuals, and I don't think these restrictions run afoul of 2A.  In that light, moving the line on those restrictions would not run afoul of the language, either, unless all "arms" ownership were prohibited.

Is that a reasonable viewpoint?

[TwiceHorn 31984]

15 minutes ago, jimmyjazz said:

I'm roughly as qualified as a constitutional scholar as I am an NBA power forward:  indulge me.

I like @TwiceHorn's takes here.  The last half of the 2nd amendment seems pretty compelling.  To dig in a bit, when I read "the right of the people to keep and bear Arms, shall not be infringed" it seems clear that it doesn't reference "ALL arms".  This seems important.  There are already restrictions on weapons ownership by individuals, and I don't think these restrictions run afoul of 2A.  In that light, moving the line on those restrictions would not run afoul of the language, either, unless all "arms" ownership were prohibited.

Is that a reasonable viewpoint?

I think so.

Unfortunately, that interpretation makes it a lot easier to block firearms restrictions.  Currently, it's only used on "bans" of possession/ownership.  But it could be extended.  Scalia even sort of implicitly approved licenses to own, although the passage is dicta and ambiguous (something to the effect of "that issue is not before us.")

I'm not 100% behind Heller.  Or against gun control, at all.

I just find it linguistically very difficult to read into the Second Amendment a restriction based on the prefatory clause.  A preface, by its very nature, is fairly, if not entirely, superfluous.

Edited December 22, 2021 by TwiceHorn

[workswithseed 2201]

6 minutes ago, TwiceHorn said:

I think so.

Unfortunately, that interpretation makes it a lot easier to block firearms restrictions.  Currently, it's only used on "bans" of possession/ownership.  But it could be extended.  Scalia even sort of implicitly approved licenses to own, although the passage is dicta and ambiguous (something to the effect of "that issue is not before us.")

I'm not 100% behind Heller.  Or against gun control, at all.

I just find it linguistically very difficult to read into the Second Amendment a restriction based on the prefatory clause.  A preface, by its very nature, is fairly, if not entirely, superfluous.

I feel like your entire last sentence was superfluous.

[jimmyjazz 46967]

8 minutes ago, TwiceHorn said:

I just find it linguistically very difficult to read into the Second Amendment a restriction based on the prefatory clause.  A preface, by its very nature, is fairly, if not entirely, superfluous.

I think I agree.  The prefatory clause should not be read as the ONLY reason that the people's right to bear arms should not be infringed.

[NotActuallyALonghorn 4998]

48 minutes ago, jimmyjazz said:

I'm roughly as qualified as a constitutional scholar as I am an NBA power forward:  indulge me.

I like @TwiceHorn's takes here.  The last half of the 2nd amendment seems pretty compelling.  To dig in a bit, when I read "the right of the people to keep and bear Arms, shall not be infringed" it seems clear that it doesn't reference "ALL arms".  This seems important.  There are already restrictions on weapons ownership by individuals, and I don't think these restrictions run afoul of 2A.  In that light, moving the line on those restrictions would not run afoul of the language, either, unless all "arms" ownership were prohibited.

Is that a reasonable viewpoint?

That's essentially what Heller said. Arms in common use should be protected.

[BHMCruiser 1828]

3 hours ago, Longhorn_Fan68 said:

I dunno, you fucking tell me. Everyone seems to ignore the first 4 words and just zoom to the last part:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Okay I basically agree with Heller and McDonald's explanation of the right and its contours. Hope that helps. 

Edited December 22, 2021 by BHMCruiser

[BHMCruiser 1828]

1 hour ago, DDD Dad said:

We'll just have to agree to disagree with the wisdom and correctness of Heller.  Personally I think it was a significant shift from the prior albeit limited second amendment jurisprudence over the course of the country's history. 

I would rather have seen the court view the right to keep and bear arms (at a personal level) as similar to the right of privacy; not expressly enumerated but presumed under the ninth amendment, which would permit reasonable restrictions on such right to allow state and local lawmakers to develop the law to fit the needs of a changing society.

That horse has left the barn, though.

Which jurisprudence do you think Heller "shifted" away from?

[DDD Dad 14570]

15 minutes ago, BHMCruiser said:

Which jurisprudence do you think Heller "shifted" away from?

United States v. Miller, 307 U.S. 174 (1939); see, e.g., United States v. Rybar, 103 F.3d 273 (3d Cir. 1997), cert. denied, 522 U.S. 807 (1997); United States v. Wright, 117 F.3d 1265 (11th Cir. 1997); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied sub nom.; Hickman v. City of Los Angeles, 519 U.S. 912 (1996); Love v. Pepersack, 47 F.3d 120, 123-24 (4th Cir. 1995); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); United States v. Toner, 728 F.2d 115 (2d Cir. 1984); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983), cert. denied, 464 U.S. 863 (1983); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).

Just for starters.

Edited December 22, 2021 by DDD Dad

[wildcat09 29556]

51 minutes ago, NotActuallyALonghorn said:

That's essentially what Heller said. Arms in common use should be protected.

Which seems like an extremely weird and unworkable rule. If taken seriously, anything invented after the adoption of the 2nd amendment could be outright banned. Even if you bring "common use" to modern day, anything invented tomorrow could be banned. That doesn't make much sense if we're talking about a broad and unregulable individual right.

[formermav43 4607]

4 hours ago, wildcat09 said:

There aren't any others. Really, if I'm being pedantic I'd take issue with characterizing it as a "collective right" too. I think the best understanding of what a "right" is is that they're always individual and that they operate as protections against or limitations on the exercise of certain state powers against our person or property. This is why I've said before that states don't have rights, they have powers. But I think the 2nd might in a sense be the sole exception to that, in that I think it was really meant to confer upon a state, rather than individual persons, the "right" for its military to be protected from disarmament by the federal government. In that sense it was an attempt to maintain a small portion of the character of the relationship between the states and the federal government that had existed under the Articles of Confederation.

I think an honest reckoning with the language of the amendment and its history, both the intent and how it was interpreted for most of American history, would find it mostly vestigial today. Perhaps Texas could still argue that the 2nd prevents the federal government from disarming the Texas National Guard. But for anyone to argue that it was intended to confer and protect, say, an individual right to wield arms in self defense, is pure judicial activism and shitty historicism.

I’d argue the establishment clause of the first amendment is similar actually. Part of its purpose was to protect the churches already established in various states. In our mythology, we think of many early colonists fleeing persecution in Europe in search of freedom of religion; other than Rhode Island, it was often more “freedom to establish our church and now be the persecutors instead.” 

[BHMCruiser 1828]

6 minutes ago, DDD Dad said:

See, e.g., United States v. Rybar, 103 F.3d 273 (3d Cir. 1997), cert. denied, 522 U.S. 807 (1997); United States v. Wright, 117 F.3d 1265 (11th Cir. 1997); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied sub nom.; Hickman v. City of Los Angeles, 519 U.S. 912 (1996); Love v. Pepersack, 47 F.3d 120, 123-24 (4th Cir. 1995); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); United States v. Toner, 728 F.2d 115 (2d Cir. 1984); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983), cert. denied, 464 U.S. 863 (1983); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).

Just for starters.

lol where did you get that list? Rybar was about a machine gun, Hickman was about a carry permit, Quilici held the Second Amendment hadn't been incorporated yet (and was really a 9th Amendment case). 

None of these have anything to do with Heller which held that the government could not ban firearms that were commonly kept for lawful purposes by responsible, law-abiding citizens (and little more than that). 

[BHMCruiser 1828]

Just now, BHMCruiser said:

lol where did you get that list? Rybar was about a machine gun, Hickman was about a carry permit, Quilici held the Second Amendment hadn't been incorporated yet (and was really a 9th Amendment case). 

None of these have anything to do with Heller which held that the government could not ban firearms that were commonly kept for lawful purposes by responsible, law-abiding citizens (and little more than that). 

I mean, nice try and all

[DDD Dad 14570]

1 minute ago, BHMCruiser said:

lol where did you get that list? Rybar was about a machine gun, Hickman was about a carry permit, Quilici held the Second Amendment hadn't been incorporated yet (and was really a 9th Amendment case). 

None of these have anything to do with Heller which held that the government could not ban firearms that were commonly kept for lawful purposes by responsible, law-abiding citizens (and little more than that). 

Go back to Miller.  I just posted a string cite of some recent federal appellate courts prior to Heller that I grabbed off a law review article I was able to find with a quick google search for "heller collective rights".  I'm working and have neither the time nor inclination to delve into this issue, one which has been discussed ad nauseam on other threads.  If you want to do your own research you will find that the Supreme Court rarely touched on the Second Amendment prior to Heller (I think only 2 or 3 times), but other courts for nearly 200 years prior to Heller typically viewed the right as a collective one.

Edited December 22, 2021 by DDD Dad

[BHMCruiser 1828]

2 minutes ago, DDD Dad said:

Go back to Miller.  I just posted a string cite of some recent federal appellate courts prior to Heller that I grabbed off a law review article I was able to find with a quick google search for "heller collective rights".  I'm working and have neither the time nor inclination to delve into this issue, one which has been discussed ad nauseam on other threads.  If you want to do your own research you will find that the Supreme Court rarely touched on the Second Amendment prior to Heller (I think only 2 or 3 times), but other courts for nearly 200 years prior to Heller typically viewed the right as a collective one.

I have done a lot of research on this subject but thanks

[BHMCruiser 1828]

Heller deals with Miller as well as the GCA/NFA

[DDD Dad 14570]

3 minutes ago, BHMCruiser said:

Heller deals with Miller as well as the GCA/NFA

Yes and I happen to agree with Stevens' dissent.  This is a useless argument.  I answered your question and you moved the goalposts.  I said I believed Heller was a shift from prior jurisprudence on the Second Amendment.  There is really no dispute that for nearly 200 years courts generally viewed the amendment from the context of a collective right.  

You say you've done a lot of research on this subject.  Are you a constitutional lawyer?  For not an insignificant part of my career I have been.

[TwiceHorn 31984]

21 minutes ago, BHMCruiser said:

Which jurisprudence do you think Heller "shifted" away from?

I don't think there was much clear jurisprudence, as you point out.  It was a tangential issue, or the interpretation of the amendment itself was not squarely in issue until Miller.

And, as has been pointed out, no one argued against the government's position supporting the NFA in Miller, leading to a kind of bizarro decision.

[BHMCruiser 1828]

29 minutes ago, TwiceHorn said:

I don't think there was much clear jurisprudence, as you point out.  It was a tangential issue, or the interpretation of the amendment itself was not squarely in issue until Miller.

And, as has been pointed out, no one argued against the government's position supporting the NFA in Miller, leading to a kind of bizarro decision.

The history of Miller is pretty interesting. The petitioner didn't even argue. It was a mess. But if you go back and carefully read the decision, and the legislative history from the NFA, you can see that the central theme of Heller - that firearms commonly kept for lawful purposes by responsible, law-abiding citizens - has always been there. 

[BHMCruiser 1828]

34 minutes ago, DDD Dad said:

Yes and I happen to agree with Stevens' dissent.  This is a useless argument.  I answered your question and you moved the goalposts.  I said I believed Heller was a shift from prior jurisprudence on the Second Amendment.  There is really no dispute that for nearly 200 years courts generally viewed the amendment from the context of a collective right.  

You say you've done a lot of research on this subject.  Are you a constitutional lawyer?  For not an insignificant part of my career I have been.

I did not move the goalposts but you're entrenched (and so am I) and I agree that this is a useless argument. Yes I am a constitutional lawyer.

Edited December 22, 2021 by BHMCruiser

[wildcat09 29556]

41 minutes ago, BHMCruiser said:

I have done a lot of research on this subject but thanks

Strong antivax energy here.

[BHMCruiser 1828]

33 minutes ago, TwiceHorn said:

I don't think there was much clear jurisprudence, as you point out.  It was a tangential issue, or the interpretation of the amendment itself was not squarely in issue until Miller.

And, as has been pointed out, no one argued against the government's position supporting the NFA in Miller, leading to a kind of bizarro decision.

Miller is interesting too because it is often cited as having a central holding that sawed off shotguns are not protected by the Second Amendment because they are not useful in warfare. Well that's not the central holding. Is there any doubt that, if Mr. Miller had been in possession of a machine gun (indubitably useful in warfare), his conviction would still have been upheld? 

The question answered in Miller is whether the government may ban arms that are unusual and dangerous, i.e. that are not commonly kept for lawful purposes. 

[wildcat09 29556]

Quote

 that firearms commonly kept for lawful purposes by responsible, law-abiding citizens

Glocks are or at least used to be popular with gang members. Can Glocks be banned?

ETA: This is such a circular standard. It's basically "bad guns are guns used by bad guys."

Edited December 22, 2021 by wildcat09

[BHMCruiser 1828]

1 minute ago, wildcat09 said:

Strong antivax energy here.

Far from it. I think vaccines are modern miracles of science. 

[TexasEd 8248]

On 12/16/2021 at 7:00 AM, SmokeyTheBear said:

When are they going to enforce the first 4 words of the second amendment? "A well regulated militia" always seems to be a disregarded qualifier. 

Shit are you arguing that only proud boys and Oath keepers can have guns because that is terrifying.

 

[BHMCruiser 1828]

1 minute ago, wildcat09 said:

Glocks are or at least used to be popular with gang members. Can Glocks be banned?

no because they are commonly kept for lawful purposes by responsible, law-abiding citizens

that's why you can ban brass knuckles but not handguns, irrespective of lethality

[wildcat09 29556]

What if a bunch of law abiding citizens buy brass knuckles in a state where they aren't currently banned? Is it the case that that state could ban them today but not next year, if and because a bunch of law abiding citizens bought them in the interim?

Edited December 22, 2021 by wildcat09

[TexasEd 8248]

21 hours ago, Biff Tannen said:

It’s like Famous Ray’s, Original Ray’s, and Famous Original Ray’s. 

You should use terms we can relate to better like Kreutz or Smitty's

[SmokeyTheBear 5569]

16 minutes ago, TexasEd said:

Shit are you arguing that only proud boys and Oath keepers can have guns because that is terrifying.

 

Nothing "well" or "regulated" about those paranoid fascists. 

[TexasEd 8248]

8 minutes ago, SmokeyTheBear said:

Nothing "well" or "regulated" about those paranoid fascists. 

My comment was more to how this court would interpret that if they had to.

[elfenix 34658]

40 minutes ago, TexasEd said:

Shit are you arguing that only proud boys and Oath keepers can have guns because that is terrifying.

 

shays claimed to be part of the militia too.