United States Supreme Court agrees to rule on District of Columbia v. Heller

[David Octavius]

Originally Posted by goldenponderbob

During the period following the convention of 1787, one indispensible fellow was leaning toward disapproval. Madison knew perfectly that "no Virginia meant no new government. Only the promise of a strong bill of rights caused the governor of Virginia to endorse James' proposal to replace the Articles of Confederaton. Without Henry's nod, there would be no new nation. The 2nd amendment was Madison's guarantee to Patrick that the government would never attempt to disarm the citizens of Virginia.

Madison himself did not endorse a bill of rights, Thomas Jefferson (who was not at the convention) and George Mason were bigger advocates. Madison was much more of a Nationalist then many at the convention save for maybe Hamilton and a few others.

If we are going to look back at the context of history, lets be a little more genuine. There was massive debate about the BOR that was beyond just the second amendment, many Federalists - including many big names - did not support any inclusion at all, we have the anti-federalists to thank for it.

So if we are to look back at it as an example, we can take comfort knowing that they too had to struggle with declaration of rights and its scope, and now its our turn to continue it today.

[goldenponderbob]

Originally Posted by David Octavius

Madison himself did not endorse a bill of rights, Thomas Jefferson (who was not at the convention) and George Mason were bigger advocates.

Madison drew up the first ten amendments (plus others that he was used as bargaining chips to castoff in a compromise to get the ones he needed). He
used the promise of a BOR to secure the endorsements of those, like Henry, who were opposed to the centralized power the proposed constitution gave to the President. The fact that Washington would be first eased that fear somewhat, but whether Madison liked the BOR or not, without the promise to put it through, he would never have not had Henry's OK).

None of that was 2nd amendment specific, but surely the right to maintain a militia that the federal government could not disarm was high on Henry's list.

I'm saying probably wouldn't have it if not for Henry.

[David Octavius]

Originally Posted by goldenponderbob

Madison drew up the first ten amendments (plus others that he was used as bargaining chips to castoff in a compromise to get the ones he needed). He
used the promise of a BOR to secure the endorsements of those, like Henry, who were opposed to the centralized power the proposed constitution gave to the President. The fact that Washington would be first eased that fear somewhat, but whether Madison liked the BOR or not, without the promise to put it through, he would never have not had Henry's OK).

Your right, the BOR was a compromise for the Federalists in order to get the Constitution through - as for how important the second amendment was at that time, we could reasonably assume high, but it is debatable...


For instance, the little talked about 3rd amendment prohibits peace time quarenting of soldiers in private homes. The colonists HATED having to quarter British troops, but they had no choice. Of course this is less of a concern now but back then it was a huge enough thing to warrant its own amendment! This says to me that society changes, the third amendment we don't even think about anymore, most people don't even know it! If a BOR was written in our time I suspect it would not be included.

So why try to discern the true or original intent now? We are not the same society. The militia we have now is not the same militia we had in colonial times. Our militia is controlled by the State which can be controlled by the federal government. I don't think government should infringe on a persons right to own a gun or even a few guns, but clarification is needed, we are in an age of RPGs and machine guns not muskets.

[goldenponderbob]

Originally Posted by David Octavius

The militia we have now is not the same militia we had in colonial times. Our militia is controlled by the State which can be controlled by the federal government.

David, It's wonderful to hear someone contemplating freedom in terms of amendments and constitutional restrictions on federal power, other than the few we keep repeating, wonderful as those few are.

It doesn't come up often, but for what it's worth I'm glad I don't have to quarter soldiers, my house is too small and my kids would drive them nuts.

It appears the miltia is controlled by thd federal government (national guard), and that's bad for freedom. The checks and balances ought ot include the states suppressing the formidable power of the federal goverenment to do what the soviets did in Hungary in the 50's and Czechoslovakia in the 60's.
We think that's not possible, but it would be nice to be sure.

Still, the words "well regulated" are the ones we need to add sanity to our "right to bear" and the words are right there for the picking. And,
besides it's a citizen' army we're talking about, like the one Paul Revere was rousing that night in April, 1775. We're the descendants of that rebellion against overbearing authority and we ought to be careful not to give it up.

[David Octavius]

Originally Posted by goldenponderbob

David, It's wonderful to hear someone contemplating freedom in terms of amendments and constitutional restrictions on federal power, other than the few we keep repeating, wonderful as those few are.

It doesn't come up often, but for what it's worth I'm glad I don't have to quarter soldiers, my house is too small and my kids would drive them nuts.

It appears the miltia is controlled by thd federal government (national guard), and that's bad for freedom. The checks and balances ought ot include the states suppressing the formidable power of the federal goverenment to do what the soviets did in Hungary in the 50's and Czechoslovakia in the 60's.
We think that's not possible, but it would be nice to be sure.

Still, the words "well regulated" are the ones we need to add sanity to our "right to bear" and the words are right there for the picking. And,
besides it's a citizen' army we're talking about, like the one Paul Revere was rousing that night in April, 1775. We're the descendants of that rebellion against overbearing authority and we ought to be careful not to give it up.

One would hope that one day the States gets some balls, move away from their national parties and take back some of the unnecessary power the national government has to bring balance to the checks but I doubt it.

It is a concern that the federal government has control over the state national guards - those militias are our best defense if ever our government got oppressive but now there are positioned very well to be used as well regulated police state. The right to bear arms as citizens in this instance helps us very little (if we are going along the lines of rebellion), sure there could be small pockets of resistance and even some guerrilla style warfare but the military machinery is too strong and too ingrained to really have any affect in the long term without any substantial outside help.

The militia during the revolution - an army of a colony - is much different compared to the militia after the constitution where the congress of a national government slowly took control away from the States and also created a standing army for the first time.

When we debate the right to bear arms we ought to keep in mind the utility of it was different before it was adopted. As you said P Henry wanted to make sure Virginia was protected (ie have guns for their state militias). This simply doesn't exist anymore, they don't have such assurances because of above, thus the original meaning of it is useless. This is why I say we have to interpret the amendment for our reality and our time.

[goldenponderbob]

That the "Court" has finally taken up the issue puts it into a corner. It can now back the principle clause of the 2nd amendment, which endangers all the restrictions the laws have placed on who can have what in terms of lethal weaponry.

Or, it can back the thirteen word dependant clause (a kind of adjective) that they have been careful to sidestep these many years. The "collective" right to bear which then falls to whatever the states or local governments, decide is a well regulated militia.

If you think about the corner they've backed into its easy to see why it has been avoided for so long. Constitutionaly, It's as big a deal as Roger B. Taney had regarding Dred Scott, in that it throws out all the attempts at compromise, and puts the main issue squarely on the table where it has to be dealt with one way or the other.

It's a shame that McVeigh's paranoid weekend warriors left a legacy that gave the word militia such a bad image.

Suppose the court backs the collective view. Suppose that then prompted a group of lawabiding gun owners to petition their state legislature to declare what a well regulated militia is. Now suppose the legislature then declared that a gun owner simply had to be recognized as a member of that group, attend classes on gun safety and laws that limit "lethal force" when defending oneself. That a reinvented "militia" governed locally by a board of lawabiding gun owners might work to prevent "nuts" from misusing these dangerous toys. Their right to bear needn't be any different from a cop who becomes an armed citizen when he goes home at the end of his day.

It's not perfect, but any concerned citizen who's put on army fatigues, and tucked copy of "Guns and Ammo" under his arm, and walked into a tent where a "gunshow" is in progress, and listened to the conversations taking place, knows there's got to be a better way to protect ourselves than the way we do it now.

[Pocono Pete]

Originally Posted by motivez

Who do you guys think would come out on top in that battle? Are there enough states to ratify?

Given the number of states that amended their Declarations of Rights to either secure or expand their guarantee in response to federal gun control initiatives (beginning with the GCA-68, then Brady) I doubt that the required majority could be attained to ratify a rewritten 2nd Amendment that would shrink the citizen's rights.

I don't get the reasoning anyway . . . If SCOTUS opines the 2nd protects only a "state's right" (in direct opposition to 190 years of its own precedent) then the state's mindset of what it considers their arms bearers would be the rule. The feds would still be barred from acting against the citizens because the state holds them to be the protected class . . . The way I see it, at least in the states with RKBA provisions the individual citizen's right to arms would be safe.

[7960]

Originally Posted by motivez

If the court should rule the that the Second Amendment _______________ I'm thinking there would be an immediate backlash and push by _______________ for a constitutional amendment "clarifying" what it is the Second Amendment actually says... and of course, the disagreement by _______________ who want to be able to _______________ ownership rights.

Who do you guys think would come out on top in that battle? Are there enough states to ratify?

What I think is you only looked at one side. If the other side wins they'll have the same bitches so basically the lawsuit after the decision will look like above, only fill in the blanks.



I hope the court says it means we're free to have guns without registration or licensing. I doubt it, though.

[7960]

Originally Posted by kinggovernor

I guess I have problems with the SC getting to decide our most important issues

that's exactly why we HAVE the supreme court.....to decide our most important issues.

[motivez]

Originally Posted by 7960

that's exactly why we HAVE the supreme court.....to decide our most important issues.

I don't really agree with that statement the way you've worded it.. the Supreme Court is there to interpret the Constitution and the laws that are written on behalf of the people, so really we decide, they just interpret what we said if there's a disagreement on the wording..

If the people don't like the way they've interpreted something, we can reverse them by passing a Constitutional Amendment or changing the law..

[7960]

Originally Posted by motivez

I don't really agree with that statement the way you've worded it.. the Supreme Court is there to interpret the Constitution and the laws that are written on behalf of the people, so really we decide, they just interpret what we said if there's a disagreement on the wording..

If the people don't like the way they've interpreted something, we can reverse them by passing a Constitutional Amendment or changing the law..

we said nearly the same thing

the supreme court is there to make decisions based on the constitution. Without them it would be possible for special interests to pass laws contrary to the constitution and the rights it affords.

the reason I said we have them "to decide our most important issues" is because too often a special interest wants a "popular" law and gets it in there and then nobody is willing to change it. So the SC has to do its job and be unpopular in doing what's right. Of course they're not perfect (see Kelo vs. City of New London) but in general the SC is there to make the correct but unpopular decision.

[Pocono Pete]

Some random thoughts on the thread so far:

Originally Posted by hsmith

The 2nd amendment grants citizens the right to bear arms. Plain and simple.

The 2nd Amendment grants nothing. It merely recognizes a pre-existing right and guarantees its protection from federal action.

Originally Posted by JaJae

Yes, that's the principle of our constitution. If you don't agree with an amendment you should advocate to change or repeal it.

But . . . SCOTUS has already said that the right to arms is not dependent in any way upon the 2nd Amendment for its existence so rewriting or rescinding the 2ndA would be a meaningless endeavor. Since the right is not created, established, conferred, given or granted by the amendment, changing or deleting words would not confer to government a power that was previously prohibited.

Originally Posted by motivez

Obviously there's ambiguity there or everyone would agree.. it's not that they're confused, their interpretation simply differs from your own.

First, I would not be so quick to dismiss the "collective right" camp as just having an innocent difference of opinion. The theory is an invention, a purposeful misconstruction of the intent of the framers and a perversion of the principles the Constitution rests upon. It was invented with just one purpose; to dismiss any claims -by an individual- of 2nd Amendment protection in the courts of America.

In current times the theory enjoys the support of many people who have bought into it simply because it "fits" with the collectivist & statist political model they adhere to. And yes, I think they could be described as confused; because the once "self evident" principles are as foreign to Americans today as a milkshake would be to the Maya.

Originally Posted by Donkey®

That's the main issue I have with it at this time...what is the definition of "arm." If people take a literal meaning of the document, then you should go back to what they LITERALLY thought an "arm" was back in the day...a day where machine guns, high capacity weaponry and RPGs didn't exist.

The answer to that question was answered unequivocally in US v Miller. Simply put, the "arms" protected by the 2ndA are those typically used in civilized warfare and in common use at the time. See US v Cases for a full and complete exposition on the meaning of US v Miller (which the 1st Circuit court then proceeds to dismiss and ignore):

"At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon . . ."

Cases v. U.S, 131 F.2nd 916 (1st Cir. 1942)

So this court decides Supreme Court precedent can be disregarded because it was a "well known fact" or as the Miller court said, "within judicial notice," that all guns have military usefulness? It follows then that the shotgun the Miller court said, "has no reasonable relationship, . . ." was, in reality, an arm immune from the restrictions of the NFA-'34?

Interesting.

Originally Posted by David Octavius

Right and its power to interpret was also ambiguous and not stated out right until Marbury vs Madison in 1803 by the SC.

Look we can argue original intent all we want but it remains that flexability was built into the constitution - which implies to me that the framers knew society and its definitions of liberty, democracy etc would evolve and change.

I find it amusing you mention Marbury and then state the Constitution has flexibility built into it. No doubt words may undergo evolution as the lexicon of a society changes, that's why an adherence to fundamental principle is so important . . . Otherwise government is a ship with no keel or rudder tacking left and right at the mercy of which side has the strongest oarsmen.

The principles upon which the Constitution rests are unchangeable (according to Marbury) and when the text is unclear the principles behind the Constitution guide the interpretation.

Originally Posted by David Octavius

Surely no reasonable person would argue that the 3/5 th clause should remain in the constitution - society evolves and our constitution evolves around it, not the other way around.

I think we should debate how it should be for our age and for those that come after us not what it was in the past.

It is the job of SCOTUS to apply the Constitution to our times, the times are not applied to the Constitution.

The 3/5ths clause, while undoubtedly created by the Constitution's framers' minds and pen, was clearly "unconstitutional" when the principle of equal rights is applied. There was no delusion that the clause could survive strict scrutiny, that's why the BS legal status of "property" was created and designated for slaves; at the time slaves could not be recognized as citizens (to get the COTUS ratified and for the reasons later laid out in Dred Scott). Remedy took way too long but the fundamental principle won out.

Originally Posted by David Octavius

So why try to discern the true or original intent now? We are not the same society. The militia we have now is not the same militia we had in colonial times.

The militia we have now is identical to the militia of the colonial period. Madison discussed the ratios of total population / standing army / militia and we mesh with his ratios in modern times.

Madison said the militia was 25% of the total population and 80% of those people would have "arms in their hands." For Madison, one needed not even own a gun to be considered militia; the only criteria was that you were capable of bearing arms and working in concert. Madison envisioned the standing army being outnumbered by armed citizens by a 17 to 1 ratio . . . If upper estimates of current gun owners are to be accepted that ratio may be as wide as 30 to 1 today.

Originally Posted by goldenponderbob

Still, the words "well regulated" are the ones we need to add sanity to our "right to bear" and the words are right there for the picking.

"There for the picking" for what? Artful misconstruction?

"Well regulated, when discussing a corps of troops or military affairs in general only means "properly functioning" and "in operational order and condition."

The term "well regulated" has a direct antonym meaning "poorly functioning" and "in an unsatisfactory condition for battle." The term has been in continuous use for centuries and its meaning has not been mutated for political expediency.

That term is "ill regulated" . . . I think that makes perfect sense.

[kinggovernor]

Originally Posted by 7960

that's exactly why we HAVE the supreme court.....to decide our most important issues.

they should decide what the constitution says but the shouldn't make public policy.

Abortion and gun control policy should be decided in a democratic way.

[7960]

Originally Posted by kinggovernor

they should decide what the constitution says but the shouldn't make public policy.

the only people who think they "make public policy" are the people on the wrong side of their decision. in other words, they're only "activists judges" when you don't like their decision.

Abortion and gun control policy should be decided in a democratic way.

why should those two be decided by a vote, but not slavery?

[goldenponderbob]

Nobody, to my attention, has asked the court to make public policy or new law, and nobody's reached the point of modifying the BOR or throwing out the 2nd amendment. We just want to know what those thirteen words are doing there, and if there's anyway to use them to make our society just a bit safer..

The Miller case addressed the "thirteen words" but didn't resolve anything.

Both sides of the case before the court have asked for just that clarification, and the court amazingly has agreed to do something.

Exactly what, we'll soon see, but there's no question the Virginia Tech tragedy will be front and center on their minds, and that's good enough for me.

It's akin to a dangerous intersection that gets a traffic control device just after the moment passed when it would have done some good.

[kinggovernor]

Originally Posted by 7960

the only people who think they "make public policy" are the people on the wrong side of their decision. in other words, they're only "activists judges" when you don't like their decision.

activist judges are those that change the current policy, something like desegregation of schools or roe v wade activism in the courts.

why should those two be decided by a vote, but not slavery?

13th amendment? The Dred Scott case is a good example of how the Supreme Court should rule, it is supposed to make decisions based on what the law says not what it thinks morally or otherwise. But that is for another thread